Tag Archive | "ICLEF"

Things to Know Before an Administrative Law Hearing – The AOPA & The Culture

Persuasive advocacy remains the same no matter what forum you are in, but there are different rules and traps for the unwary if you don’t understand your environment. Have you prepared lately for an appearance in front of the Alcohol and Beverage Commission seeking an alcohol permit, Natural Resource Commission because you built an unapproved bridge over a creek, or contesting an IOSHA fine at the Department of Labor? Practicing law in our Indiana state agencies, even for experienced litigators, can be a new experience.

Our faculty participant, Lori Torres, Ice Miller LLP, Indianapolis, has generously agreed to provide her expert direction into where to watch for the land mines. Here’s her jump start into preparing to appear at the Indiana state agencies:

Administrative Orders and Procedures Act
The Administrative Orders and Procedures Act, commonly known as AOP A, was passed in 1986, and has seen few changes since then. AOPA can be found at Ind. Code 4-21.5-1 et seq.  It has 7 chapters, each one devoted to a different aspect of administrative law. (Editor’s Note: Ms. Torres includes the full Act in her published CLE materials for the seminar entitled Revealing the Mysteries of Administrative Law:  A Practitioner’s Guide to Indiana State Agencies.” The manual is available from ICLEF.)  Part of what AOPA was intended to accomplish was to provide a more streamlined way for state agencies to regulate in their substantive areas, as well as unclutter the court system with administrative issues. [Final Report of the Administrative Adjudication Commission].

The first order of business before you work at the state agency level is to ascertain whether AOPA applies.  Chapter 2 has a fairly long list of agencies and actions in which AOP A does not apply, either in specific agencies or specific actions. See Ind. Code 4-21.5-2-4 and 5.  For example, AOPA does not apply to the Indiana Utility Regulatory Commission, the Department of Workforce Development or the Unemployment Insurance Review Board there. And while it applies to the Indiana Civil Rights Commission as a whole, neither a determination of probable cause or no probable cause, or fact finding conferences of the Civil Rights Commission are subject to AOPA. Ind. Code 4-21.5-2-5(2) and (3). These exceptions have been carved out over many legislative sessions, and run the gamut.

First things first – does AOPA apply, and if not, what does? For example, a driver isn’t entitled to notice and a hearing before the BMV suspends a driver’s license, permit or vehicle title of that person as a result of a

dishonored check. But a driver would have the benefit of AOPA in the case where he or she believes that the BMV erred in the type of suspension. Likewise, since the Indiana Utility Regulatory Commission is specifically exempted from coverage by AOPA, (Ind. Code 4-21.5-2-4(a)(8)), a practitioner has to look to the statutes governing the commission or its administrative code (see 170 lAC 1.1 for Practice and Procedure Before the Commission).

Notice is a primary concern under AOPA. Nearly all of section 3 of AOPA deals with who is entitled to notice, how it must be made, what time frames apply for notice and response to matters. Ind. Code 4-21.5-3-1 to 6. Any sanction or termination of a legal right, duty, privilege, immunity or other legal interest may only be done after a proceeding described by AOPA, unless it is an emergency or temporary order. Ind. Code 4-21.5-3-8.

Know the Culture
You have to do your own “situational analysis” before starting a matter before an agency with whom you are unfamiliar. Agencies differ, and woe to the practitioner that hasn’t studied up or done some kind of prep work in advance. Some are incredibly formal, and mimic a court trial. IOSHA hearings have a judge, court reporter and often multiple lawyers on each side. Utility Regulatory Commission hearings are very formal with many interested stakeholders (including the media) in attendance. Hearings in front of a board of the Professional Licensing Agency can be attended by members of the public and often are attended by aggrieved parties.  Others are very informal, like those at the BMV, where only the complainant has a stake in the outcome. You should know if members of the media will be there. Nearly every hearing or meeting is subject to the Open Door Law (Ind. Code IC 5-14-1.5), which provides that they are open to the public at large, and the media in particular.

The best way to understand the environment in which you will be working is to attend one or more of the agency’s hearings in advance of your own. If you have a State Department of Health hearing coming up, attend the meeting the month before (remember that Open Door Law?). Call the agency’s general counsel and ask questions. Even though they may be involved in the disputed matter, my personal observation is that most agency general counsel are focused on fairness and just outcomes, so it is worth asking some questions. Find out when the agenda will be published, and make sure you get a copy in advance. I’ve never done an administrative case without first trying to attend a similar meeting or hearing (without billing the client) to understand the flow, hear the fact finder or adjudicator explain rulings or process. Know whether parties are usually represented by attorneys or they appear generally pro se.

All of this will aid you in your situational analysis, and make you look like a pro in front of your client (and hopefully avoid any embarrassment so you don’t miss an important point of the protocol).

Many thanks to Lori Torres for her valuable insights into Indiana’s state agencies.  Keep your ears open as we continue with her specific examples of “Things To Know Before An Administrative Hearing.”  If you are interested in the CLE covering the ins and outs of practicing administrative law in Indiana, take a look at ICLEF’s On Demand or Video Replay of “Revealing the Mysteries of Administrative Law:  A Practitioner’s Guide to Indiana State Agencies.” 

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About our Law Tips faculty participants:
Lori Torres, Ice Miller LLP, Indianapolis, is of counsel in the law firm’s Public Affairs Group. She concentrates her practice in the areas of public affairs, public policy planning, economic development, real estate, and labor and employment focusing on state wage and hour issues.  Torres is a veteran of Indiana state government, having served in a cabinet post position in the Indiana Department of Labor under Gov. Mitch Daniels for more than six years. Prior to her appointment to the DOL, Torres spent 20 years in private practice in Johnson, Marion and surrounding counties in Indiana.

About our Law Tips blogger:
Nancy Hurley has long-standing connections with Indiana lawyers. She was formerly a member of the ISBA and IBF staffs for over 30 years. Nancy’s latest lifestyle venture is with ICLEF. We are utilizing her exceptional writing and interviewing skills while exploring how her Indiana-lawyer background fits with ICLEF’s needs. When she isn’t ferreting out new topics for Law Tips, her work can be found in our Speaker Spotlight blogs, postings on the ICLEF Facebook and Twitter pages, and other places her legal experience lends itself.

Thank you for reading Law Tips. You may subscribe to this weekly blog through the RSS link at the top of this page.  Also, you are encouraged to comment below or email Nancy. She welcomes your input as she continues to sift through the treasure trove of knowledge of our CLE faculty to share with you.

ICLEF • Indiana Continuing Legal Education Forum, Indianapolis, IN

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Dismissal of a Paternity Matter Acts to Terminate…

Case: Belinda Douglas v. Neil Spicer and L.S.
by Mike Kohlhaas, Bingham Greenebaum Doll

HELD: The dismissal of a paternity matter acts to terminate any related preliminary orders that were issued in the case, much like a preliminary order in a dissolution case terminates with dismissal of the dissolution matter.

HELD: The trial court correctly calculated a child support arrearage by looking at the time from when the preliminary child support order was issued, until the paternity case was dismissed.

FACTS AND PROCEDURAL HISTORY:
Mother and Father were unmarried and living together when, in early 1994, Mother gave birth to Child. Father was listed on Child’s birth certificate, and the parties continued living together and sharing household expenses. However, when Child was four, Father moved out.

In 2004, Mother initiated a paternity action. In early 2005, the trial court issued a preliminary child support order of $200 per week. However, eight months later — after both parties failed to appear at a status hearing — the trial court dismissed the matter. Father never made any of the $200 court-ordered payments.  But, Father continued to provide regular and consistent financial support for Child, including providing health insurance coverage.

In 2012, Mother filed a “Motion to Re-Open the Case” along with a request to adjudicate the child support arrearage. After a hearing, the trial court found an arrearage of $6,600, which the court calculated as $200 per week from the entry of the preliminary support order, through when the case was dismissed. Mother appealed, arguing that Father’s arrearage was $74,000, relying in part upon a common law support theory.

The Court of Appeals concluded that the trial court acted within its discretion in calculating the arrearage. First, the formal obligation for Father to pay $200 per week terminated by operation of law with the dismissal of the case. Second, the evidence presented to the trial court about the substantial and consistent informal financial support that Father provided for Child supported the trial court’s decision to decline finding any additional arrearage.

The trial court’s judgment was affirmed.

To view the text of this opinion in its entirety, click here: Belinda Douglas v. Neil Spicer and L.S.

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The Indiana Family Law Update is a free service provided by the Matrimonial Law Group of Bingham Greenebaum Doll, LLP. While significant efforts are made to ensure an accurate summary and reproduction of each opinion, readers are advised to verify all content and analysis with a traditional case law reporter before relying on the content and analysis offered here.
ICLEF • Indiana Continuing Legal Education Forum, Indianapolis, IN

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Amateur Life Coach Discusses Firing A Client

Amateur Life Coach Discusses Firing A Client

James J. Bell, ICLEF's Amateur Life Coach

The Amateur Life Coach (also known as attorney James J. Bell of Bingham Greenebaum Doll) is back to dispense his unique thoughts, advice and wisdom to his real and imagined viewers…

This week our question comes from Bingham Greenebaum Doll attorney Meg Christensen asking when you should part ways with your client.

Now, you can also “like” the Amateur Life Coach at Facebook!  Visit his facebook account today and catch up on his day-to-day activities.

More from James Bell on professional liability and legal ethics issues can be found in his “3 Things to Know” column appearing regularly in the Indiana Lawyer. Visit www.theindianalawyer.com.

Questions for the Amateur Life Coach?  Email them to iclef@iclef.org or @JamesJBell on Twitter.

Written and performed by James J. Bell. Produced by the Indiana Continuing Legal Education Forum.
This video is for informational purposes only and should not be used as a substitute for professional advice.

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James focuses his practice in the areas of criminal defense; attorney discipline defense and health care law. As a Marion County Public Defender, he represented clients in numerous jury and bench trials. James also represents clients in juvenile delinquency, appeals and post-conviction proceedings. James is a frequent ICLEF speaker on ethics, trial practice and criminal procedure. James just completed his first semester as an adjunct professor at the Indiana University Robert H. McKinney School of Law where he teaches a course on professional responsibility. To date, no student has yet stood on their desk and shouted “Oh captain, my captain!” Follow James on Twitter @jamesjbell

ICLEF • Indiana Continuing Legal Education Forum, Indianapolis, IN

 

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Law Tips: Be Vigilant Concerning Spousal Rights After the Death of One Party

Divorce Law vs. Estate Law

Is Filing For Divorce Close Enough? Does “It ain’t over ’til the fat lady sings” apply in divorce? What happens to all the spousal rights when a divorce is pending but one party dies before the final dissolution decree is entered? In most situations, not much. You are still husband and wife. Filing an action for dissolution does not terminate a spouse’s marital status for purposes of inheritance and other death-time rights. Only the decree of dissolution determines that the status of marriage has ended…

In our recent CLE entitled Divorce Law vs. Estate Law & Designated Beneficiaries Kent Jeffirs, our faculty participant who practices in Crown Point, Indiana, takes up issues such as “Death During Divorce: Is Filing For Divorce Close Enough?” and “Little Known Statutes that May Fight the Good Fight in Death During Divorce.” I’m pleased to bring Law Tips readers a bit of Kent’s expertise in preventing unfortunate and difficult-to-solve circumstances for your clients.

…While one could change his will while the divorce is pending, the spousal allowance and right to elect against the will remain until the final dissolution decree is entered. So no matter how contentious the divorce and no matter how long the parties have been separated, the surviving spouse in a divorce where no final decree of dissolution was entered can claim any individually titled property he stood to lose in the divorce, all jointly titled property as the surviving co-owner, plus a spousal allowance of $25,000 and an intestate or elective share of any assets of the deceased spouse’s estate that were titled in her name alone if the surviving spouse was fortuitous enough to have his spouse die while the divorce is pending. Indiana case law and statutes offer very few avenues for relief upon the mere filing for divorce if the final dissolution decree is not entered prior to the death of a party to the divorce.

“Little Known and Little Used Statutes that May be Used to “Fight the Good Fight” Upon the Death of a Party During a Dissolution of Marriage Action”

Two statutes contained in the Indiana Probate Code have remained as descendants of two statutes promulgated by the Indiana Legislature in the middle of the nineteenth century (the 1850′s!). These statutes have carried through what some consider to be antiquated concepts of penalizing “adultery” and “spousal abandonment” to modem times in spite of the law’s “more enlightened” transition to “no-fault” divorce. Indiana Code 29-1-2-14 and 29-1-2-15 provide as follows:

29-1-2-14. Adulterous husband or wife. If either a husband or wife shall have left the other and shall be living at the time of his or her death in adultery, he or she as the case may be shall take no part of the estate or trust of the deceased husband or wife.

29-1-2-15. Abandonment of spouse. If a person shall abandon his or her spouse without just cause, he or she shall take no part of his or her estate or trust.

See also I.C. 30-4-2.1-9. Applicability of adultery and abandonment forfeiture provisions.
(A trust of a deceased spouse is subject to the following: (1) I.C. 29-1-2-14 and (2) I.C. 29-1-2-15).

In Estate of Calcutt v. Calcutt, 576 N.E.2d 1288 (Ind. App. 1991), trans. denied, the court reaffirmed much earlier decisions that pursuant to I.C. 29-1-2-15, in order for the prohibition in 29-1-2-14 to apply, the surviving spouse must have “abandoned” the decedent before his or her death. See also In re Estate of Patrick, 958 N.E.2d 1155 (Ind. App. 2011 ) (Trial court properly denied estate’s motion to dismiss husband’s petition for survivor’s allowance under I.C. 29-1-4-1 as he did not “leave” his wife within the meaning of l.C. 29-1-2-14. Evidence supported trial court’s finding that husband and wife had separated by mutual consent, which did not support a finding of abandonment.)

One might ask if “abandonment” is necessary under I.C. 29-1-2-14 to prevent a surviving spouse from obtaining the survivor’s allowance or any portion of the estate, is 29-1-2-15 redundant? Note that under 29-1-2-15 no adultery is required. However, as reaffirmed by the above appellate decisions, 29-1-2-14 does require a finding of “abandonment” before a spouse will lose their spousal allowance or inheritance. Indiana Code 29-l-2-14′s requirement that a spouse “shall have left the other” has thus been interpreted as synonymous with “abandonment.”

These statutes should be utilized with extreme caution. Harking back to the days of having to prove fault as grounds for a divorce, many practitioners believe these statutes lead to extremely negative and costly litigation where an estate may try to take advantage of the surviving spouse in what had become a troubled marriage or may involve pitting “blended families” against one another in contentious litigation or even seek to assign blame when one spouse commits suicide.

While this author agrees with many of the negative sentiments expressed on this topic, repeal of these statutes while the law provides that the death of a party during a divorce has little or no effect on a soon-to-be-ex-spouse receiving all or a substantial share of the deceased spouse’s estate would be inequitable. Indiana’s Probate Code provides that a spouse cannot be appointed executor of the deceased spouse’s estate if a divorce is pending, but that divorcing spouse can nonetheless claim any individually owned property he stood to lose in the divorce, all jointly held property as the surviving co-owner, a spousal allowance of $25,000 and an intestate or elective inheritance if he is fortuitous enough to have his spouse die while the divorce is pending. If the “antiquated” Abandonment and  Adultery Statutes is to be changed, this harsh result should be changed also.

Thanks to Kent Jeffirs for his commentary on important issues concerning death during divorce. This conversation will continue in Law Tips next week as he provides more input for you on what divorce lawyers can do to protect clients’ estate rights. FYI, Kent offers a comprehensive discussion of the situations you may encounter with your clients during his CLE presentation, addressing subjects such as, executors, ERISA and divorce court jurisdiction. If you are interested in the Video Replay or the On Demand Seminar of  “The Main Event: Divorce Law vs. Estate Law & Designated Beneficiaries,”  Click Here.

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About our Law Tips faculty participants:
Kent A. Jeffirs is a sole practitioner in Crown Point, Indiana, who for the last 22 years has concentrated his legal practice in estate planning, probate and trust administration, guardianships, real estate and small business counseling. In 2007, Mr. Jeffirs was one of the first group of Indiana attorneys to be board certified as a Specialist in Wills, Trusts & Estates by the Indiana Trust and Estate Specialty Board. He has also testified in court proceedings as an expert witness on probate matters. Mr. Jeffirs received his B.A. degree, with honors, from the University of Notre Dame, and his J.D. degree, magna cum laude, from Indiana University, Bloomington.

About our Law Tips blogger:
Nancy Hurley has long-standing connections with Indiana lawyers. She was formerly a member of the ISBA and IBF staffs for over 30 years. Nancy’s latest lifestyle venture is with ICLEF. We are utilizing her exceptional writing and interviewing skills while exploring how her Indiana-lawyer background fits with ICLEF’s needs. When she isn’t ferreting out new topics for Law Tips, her work can be found in our Speaker Spotlight blogs, postings on the ICLEF Facebook and Twitter pages, and other places her legal experience lends itself.

Thank you for reading Law Tips. You may subscribe to this weekly blog through the RSS link at the top of this page.  Also, you are encouraged to comment below or email Nancy. She welcomes your input as she continues to sift through the treasure trove of knowledge of our CLE faculty to share with you.

ICLEF • Indiana Continuing Legal Education Forum, Indianapolis, IN

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