Scott Roberts for www.theindianalawyer.com

The 7th Circuit Court of Appeals decided a case that dragged on in the federal court system for nine years Thursday.

The court said the district court made no errors in deciding several complaints from Tom and Marla Simstad, who said Lake County Plan Commission members held a grudge against them after they supported another candidate in the 1996 county commissioner election and deliberately slowed the process of their planned subdivision. Because the process was slowed so much, the Simstads had to give up on the project in 2006 and sell the land at a loss to avoid bankruptcy.

The Simstads filed their initial complaint in November of 2007 and in April of 2008, the defendants filed a motion to dismiss a complaint and a stay of discovery. The case sat until Sept. 30, 2010 when the court issued an order dismissing some claims, but not all. Later in 2010, the court noticed no one was doing anything in the case, and set new deadlines. Those passed as well and it was December of 2014 before the case finally went to trial.

The district court dismissed the Simstads’ first amendment complaint, finding no connection between the 1996 election and the approval process for the project. It also dismissed the Simstads’ state law claim for failure to provide timely notice under the Indiana Tort Claims Act and tossed an individual capacity claim against a plan commission member for lack of evidence. A jury found for the defense in an equal protection claim.

The Indiana Supreme Court already considered the ramifications of the commission’s refusal to approve the project, ruling the commission was not immune from sanctions, but had not acted in bad faith because the settlement agreement could not bind the commission to approve the project in violation of Indiana’s Open Door Laws. The public has final approval.

The defendants in the case never renewed a motion on any theory of preclusion in the case, however, and the 7th Circuit can still decide on the case.

The 7th Circuit found no abuse of discretion in the district court’s decision to permit the defendants to withdraw their deemed admissions and any prejudice was mitigated by reopening discovery or them alone.

The court agreed there was no evidence members of the plan commission knew the Simstads at all or had any grudge against them whatsoever. There was only one statement that Tom Simstad made, and that could not be used as evidence by itself.

Equal protection and state law claims were also dismissed in the case for lack of evidence, and the Simstads’ “cat’s paw” liability does not stand up in a municipal context.

The case is Thomas Simstad et al v Gerald Scheub et al, No. 15-1056.
 

Barnes Attorney Worked With SCOTUS Nominee on Bombing Trials

Marilyn Odendahl for www.theindianalawyer.com

When federal Judge Merrick Garland was tapped as the nominee for the Supreme Court of the United States, Indiana attorney Larry Mackey remembered his former boss as a “great guy.”

Mackey, partner at Barnes & Thornburg LLP, was a member of the prosecution teams in the Oklahoma City bombing trials, serving as chief deputy in the Timothy McVeigh trial and lead prosecutor for the Terry Nichols trial. At that time, both Garland and Mackey were federal prosecutors at the U.S. Department of Justice.

In fact, Garland headed the Oklahoma City prosecution in the initial stages. He was in the city hours after the explosion, led the early part of the investigation and was present when McVeigh and Nichols were arrested and appeared in federal court.

Mackey was interviewed by Garland to join the prosecution team but when the Indiana University Maurer School of Law graduate realized he was being considered for the first chair, he demurred, explaining he was more second chair material. Garland later told Mackey he was the attorney for the job because he was willing to serve in a lower position.

Although Mackey did not work especially closely with Garland, he did gain a lot of respect for the nominee.

“Judge Garland is remarkably bright and insightful and from my vantage point he was a true leader when the country most needed one,” Mackey said.

Garland, chief judge of the U.S. Court of Appeals for the D.C. Circuit, was selected by President Barack Obama to fill the vacancy on the Supreme Court created by the unexpected death of Justice Antonin Scalia. The Chicago native earned his law degree at Harvard and joined the Court of Appeals for the D.C. Circuit in 1997. Garland, 63, became chief judge in 2013.

Republicans have pledged to leave the seat empty until after the presidential election and said they won’t even hold hearings on Garland’s confirmation.

Obama said he chose Garland, an appeals court judge for more than 18 years, in part because he is “uniquely prepared to serve immediately.”

Little known outside Washington, Garland has spent more than 35 years in the nation’s capital, mainly in government jobs that have made him quite familiar to the justices and high-ranking officials in both Democratic and Republican administrations.

Garland has developed friendships and a stellar reputation that cross party lines. “He’s one of my best friends. I think the world of him as a human being. I think he’s an excellent judge,” said Judge Laurence Silberman, a Reagan appointee and Garland colleague on the appeals court, who also was so close to Scalia that he spoke at Scalia’s memorial service.

Obama passed over Garland twice in putting Sonia Sotomayor on the court in 2009 and Elena Kagan, a year later. Garland is the oldest nominee since Lewis Powell in 1971, and is older than three current justices — Chief Justice John Roberts, Sotomayor and Kagan.

He would blend in with the other justices to a remarkable degree. Like Roberts, Kagan and Justice Stephen Breyer, Garland spent a year as a Supreme Court clerk. He worked for Justice William Brennan. He and Roberts also worked for the same appeals court judge in New York, Henry Friendly.

In any other era, Garland’s religion — he is Jewish — would have added to the court’s diversity. But now, three justices are Jewish and five are Catholic.

In the White House Rose Garden Wednesday, Garland spoke of his grandparents, who came to the United States from Eastern Europe, and acknowledged his mother, who he said “is watching this on television and crying her eyes out.”

Garland is married to Lynn Rosenman Garland and they have two daughters, Rebecca and Jessica, who are Yale graduates.

Garland’s wealth was estimated in 2012 at between $7.1 million and $18.6 million, according to the most recently available financial disclosure form that judges file annually.

At the time, Garland owned significant stock holdings in several corporations with a history of court actions and lobbying contacts with Congress and federal agencies. Among Garland’s holdings at the time were investments in pharmaceutical firms Pfizer Inc. and Bristol-Myers Squibb — each worth as much as $50,000 — stakes in General Mills, Inc. and General Electric Co. worth as much as $100,000 and an interest in Procter & Gamble Co. valued up to $250,000, according to the disclosure.

Garland’s largest investments were a trust fund and U.S. Treasury notes, each worth between $1 million and $5 million. Garland also held bank accounts at a federal credit union, Citibank and Bank of America totaling between $215,000 and $500,000. Garland’s disclosures since 2009 have also noted a property owned in New York City, but no details were provided about the property or its value.

Obama noted Wednesday that in his youth, Garland had amassed a comic-book collection that he sold to help pay for law school.