Newspaper association recognizes AG Zoeller’s action in support of press freedom

INDIANAPOLIS – Today the Hoosier State Press Association presented its annual Frank O’Bannon Sunshine Award to Indiana Attorney General Greg Zoeller for his action to protect First Amendment rights in a legal dispute over public records last year.

The South Bend Tribune nominated Zoeller for the Sunshine Award in recognition of his removing an obstacle to the newspaper’s publication of an article based on information it obtained from a public record. In March 2012, a court injunction had blocked the newspaper from publishing an audiotape of a call received by a Department of Child Services hotline where a caller had reported child abuse. Concluding that prior restraint would violate freedom of the press, Zoeller intervened in the lawsuit and withdrew the State from further appellate litigation in the dispute over the audio recording, meaning the newspaper could resume publication of its story about the recorded call.

“The Frank O’Bannon Sunshine Award honors public servants and citizens who understand that our government should be transparent to the people it serves. I commend Attorney General Zoeller for his commitment to using his post to protect public access when his colleagues in state government wanted to restrict it. Newspapers and all citizens have a friend in public servants like Zoeller,” said Steve Key, executive director and general counsel of the Hoosier State Press Association.

As Attorney General, Zoeller has been an advocate for transparency through raising awareness of the Indiana Open Door Law and Access to Public Records Act. In 2011 and 2012, Zoeller’s office partnered with the HSPA, several newspapers and the Public Access Counselor’s Office to hold a series of free public access seminars across Indiana. The training seminars, which counted as free continuing legal education for attorneys, were attended by elected officials, government employees and citizens, and focused on educating the public about their right to open government.

“It is the responsibility of those of us in government to strive every day to earn the public’s trust; but history has shown that the public should never fully trust government. Essential to the fundamental relationship between the people and their government is a free press and open, accessible information from officials and agencies. My obligation to defend the actions of state government is second only to my oath to defend the Constitution,” Zoeller said.

Each year since 2005 the HSPA has recognized private citizens and public servants who promote the cause of open government. The Sunshine Award is named for former Governor Frank O’Bannon, who was a longtime newspaper publisher in Corydon and established the Public Access Counselor as a separate state agency during his administration. Until that time, the public access advisory opinion duties had been a part of the Attorney General’s Office.

The Sunshine award was presented today during the HSPA’s annual legislative luncheon at the Hyatt Regency in Indianapolis. In addition to Zoeller, the HSPA presented the Sunshine award to Jane Neulieb, a town council member from Long Beach, Ind. Founded in 1933, HSPA represents nearly all daily and weekly paid circulation newspapers in Indiana.

Below is a list of felony cases that were filed by the Vanderburgh County Prosecutor’s Office on Friday, February 7, 2013.

Isaiaha Johnson Burglary-Class B Felony
Theft-Class D Felony

Darius Staten Theft-Class D Felony
(Habitual Offender Enhancement due to Prior Convictions)

George Greenwell III Battery by Means of a Deadly Weapon-Class C Felony
Failure to Return to Scene of Accident Causing Injury-Class A Misdemeanor

Joshua Harvey Burglary-Class B Felony
Theft-Class D Felony

For further information on the cases listed above, or any pending case, please contact Regene Newman at 812.435.5156 or via e-mail at rinewman@vanderburghgov.org

Under Indiana law, all criminal defendants are considered to be innocent until proven guilty by a court of law.
SENTENCE CHART

Class Range
Murder 45-65 Years
Class A Felony 20-50 Years
Class B Felony 6-20 Years
Class C Felony 2-8 Years
Class D Felony ½ – 3 Years
Class A Misdemeanor 0-1 Year
Class B Misdemeanor 0-180 Days
Class C Misdemeanor 0-60 Days

Today after 3:00 City-County Observer filed a Freedom of Information Act request with the Vanderburgh County Sheriff’s Department. In our request we asked the sheriff’s department to disclose information to us involving former Sheriff’s Deputy Stuart Mosby. We also requested that Sheriff Williams provide us with any other information pertinent to former Sheriff’s Department employee Mosby. We also requested any information as to whether or not the Vanderburgh County Sheriff’s Merit Board was asked for their input and decision on the matter of reducing Mr. Mosby’s rank. Lastly, we asked Sheriff Williams if any aspect of the case was given to Vanderburgh County Prosecutor Nick Hermann for his input and recommendation pertaining to this issue.

We look forward to receiving a hasty response pertaining to this matter and look forward to sharing this information provided by Sheriff Williams with you, our readers.

EPD Activity Report: February 7, 2013

The Honorable Judge David Kiely
Zach Stuard
CCO Staff Writer

One could say for the Kiely family that practicing law ran in the family almost hereditarily. Upon graduating from the University of Evansville with a Degree in Science, it was no surprise to anyone that knew Judge Kiely that he then applied to and attended the Cumberland School of Law in Birmingham, Alabama. After graduating from Cumberland School of Law in 1989, Judge Kiely joined his father, James Kiely, and together they formed Kiely & Kiely, attorneys at law. The two began practicing law together in 1990 and continued to do so until Kiely’s father’s retirement in 1994. Judge Kiely then practiced law by himself for the following four years. In 1998 Judge Kiely announced his intent to run for Judge Knight’s spot on the bench. Soon thereafter, then Circuit Court Judge Rick Young offered Kiely the magistrate position in the Circuit Court and, recognizing the excellent opportunity, Kiely accepted the offer and cancelled his planned campaign against Judge Knight. While Judge Kiely was serving as magistrate, Judge Young set a great example and it wasn’t long before he became a role model of Kiely’s. Over time the two have managed to forge a great friendship between themselves and still stay in touch regularly. Kiely served as magistrate for 11 years when Judge Bower’s retirement left a vacant spot on the Superior Court bench. Kiely campaigned for the Superior Court position and earned an unprecedented victory in every precinct. Kiely served four years in Superior Court before running for The Circuit Court Judge position last fall. Kiely received the highest honor among attorneys and ran unopposed for the Vanderburgh Circuit Court judge position.
Kiely is well known for his work in assisting Judge Wayne Trockman in the Vanderburgh County Treatment Courts. Kiely himself is little known though, for creating what just may be the best kept secret in Evansville with the help of Judge Trockman. That secret would be the first Veterans Treatment Court in the State of Indiana. The young program originally lacked the staffing to operate at full efficiency but recent remedies to this issue have seen the court expanding nicely. The program has had 15 veterans come through its doors. The Veterans Court offers alternative sentencing options for nonviolent and, in certain circumstances, violent offenders as well. The program aims to rehabilitate veterans with substance abuse issues and provide substance abuse treatment programs in conjunction with the resources offered through the Department of Veterans Affairs. The Veterans Court also looks to assist veterans suffering from the mental effects of combat and seeks to provide alternative options to incarceration for the veterans that find themselves coming through the court.
As a judge, Kiely recognizes the court system causes mental, emotional, and financial stress on the parties and their families. “The court system must move as quickly and as efficiently as possible while providing the parties with a fair platform to argue their position. Only after a case is resolved can the parties begin their recovery and closure.”
Of all the difficult cases Judge Kiely tries he admits that drunken driving cases resulting in death involving young people with no previous record are the toughest. He also particularly dislikes giving anyone their first felony charge as it kills their ability to get a job and creates a lower standard of living to those with a felony conviction. Kiely recognizes that some people genuinely deserve their sentences and incarceration is the only appropriate option. I asked Judge Kiely what the most rewarding aspect of his work is and, very similar to Judge Trockman, he spoke of the people whom he has reached and assisted. With a humble tone Kiely told me, “More than 10 people have stopped me after spending time in our system and have thanked me for saving their lives.”
To Judge Kiely some of the most important traits for a judge to possess are patience, understanding, and temperament. A judge’s self-control has to transcend any situation which may anger them. “Prejudice and bias have no place in a judge’s chambers. We as judges have to look at the law and then apply the facts of any given case to that law. If we as judges do everything we can and make our decisions based on the facts in relation to the law, then we can live with our decisions.”
When Judge Kiely is not on the bench or working in his chambers he enjoys spending time outdoors. He particularly enjoys bass fishing, golfing and tennis. The active Judge Kiely also lettered in both basketball and baseball while attending Bosse High School. Judge Kiely enjoys spending time with his kids more than anything. His daughter, Gracie, is a freshman at Central High School and his son, Jack, is a freshman at Kentucky Weselyan. Jack and Gracie both have shown an interest in studying law which would make them each a fourth generation lawyer in the Kiely family.
If Judge Kiely could do any one thing for the court system he would restructure the way custody and parenting time battles are fought concerning children. In the current system the side that is awarded custody and more parenting time also receives more support money. Kiely feels the current system causes the parties to lose sight of what is in the best interest of the children and only focus on what is financially beneficial to their position. He believes the current system increases litigation and anger between the parties. Kiely’s remedy is to start with the presumption that there should be joint custody of the children and each parent should have equal parenting time. Then let the parties’ present evidence as to why the court should deviate from a joint custody equal parenting time order. If Judge Kiely could have his way he would give every child born two parents that love that child more than anything else in the world, including themselves. He believes this would solve a lot of problems in society that are results of children growing up without proper guidance and counseling from the proper source. Judge Kiely told me “I see generations of repeat offenders coming before the courts. That is always tough. With the proper upbringing and attention I believe a lot of these instances could be diverted entirely.”
I think you hit the nail on the head Judge Kiely.

In an exclusive statement to CCO Knight Township Trustee clarifies her position on a forced drug testing policy on her clients. Knight Township Trustee Kathryn Martin said, “The perception has been that I am opposed to drug testing applicants. The reality is that I am not opposed to this action, however my responsibility is to follow Indiana code. Upon learning of Black Township’s initiative, I contacted the Knight Township attorney to inquire about adopting this practice”. Attached is the Knight Township attorney’s response to her inquiry with the Knight Township Legal Council.

This was posted without opinion, editing or bias.

Dear Madam Trustee,
At your request, I have conducted legal research on the following legal issue, to wit:
Issue: Whether a Township Trustee may compel applicants for township assistance under LC.§12-20-6, et. seq. to submit to a suspicion less (Le. no “probable cause”) drug test as a condition to receiving township assistance.
Township Assistance -Statutory Scheme
Applications for township assistance are governed by I.C.§12-20-1 et. seq. The purpose of the statute is, “to provide necessary and prompt relief to the citizens and residents of Indiana.” See, I.C.§12-20-1-1. As Trustee, you are, “responsible for the oversight and care of all poor individuals in the township as long as the individuals remain in the trustee’s charge.” See, LC.§12-20-5-2. Indiana courts have interpreted the statute to broadly include all “poor” persons as eligible for township assistance. See, Center Tp. of Marion Co. v. Coe 572 N.E.2d 1350, 1357 (Ind.Ct.App. 1991).

The statute has a specific scheme for the administration of township assistance. Persons seeking township assistance must submit a written application on a form prescribed by the State Board of Accounts. See, I,C.§12-20-6-1(b) As Trustee, you are obligated to process all applications for township relief according to uniform written standards without regard to race, creed, nationality or gender. See, LC.§12-20-5.5-1. The statute requires that the standards include the following:

Kathryn Martin January 29,2013

(1 }Criteria for determining township assistance eligibility
(1) Minimum requirements of township trustee accessibility
(2) Other information as needed, including the following
(A) Township office locations, hours, and days of availability
(B) Initial eligibility criteria
(C) Continuing eligibility criteria
(D) Workfare requirements
(E) Essential and nonessential assets
(F) Available resources (G}lncome exemptions
(H) Application process
(I) Countable income
(J) Countable assets
(K) Wasted resources

I.C.§12-20-5.5-5. The statute also requires the inclusion of specific standards for the provision of basic necessities (I,C.§12-20-5.5-5) and income (I,C.§12-20-5.5-6.) Finally, prior to issuance of any township assistance, the applicant must sign a consent form prescribed by the State Board of Accounts which contains specific information including but not limited to, “a medical condition if relevant to work or workfare requirements. [citation omitted]” I,C.§12-20-7-1.
Compulsory, Suspicionless Drug Testing

I am inclined to question the legality of compulsory suspicion less (Le. no “probable cause”) drug testing in the absence of a specific statutory provision authorizing such testing under the Indiana Code. My research confirmed that there is no provision in the Indiana Code expressly authorizing a township to compel a suspicion less drug test on applicants for township assistance. This is significant in that Indiana’s Township Assistance Statute, as above indicated, contains broad provisions as to the persons eligible for assistance and specific provisions as to standards that must be adopted by a township. See,~, I.C.§36-1-3-6 (“If there is a constitutional or statutory provision requiring a specific manner for exercising a power, the unit wanting to exercise the power must do so in that manner.”)

It is true that a unit of government generally may exercise any power not expressly denied by statute. See, I,C.§36-1-3-5. However, when drug testing has occurred in other contexts, it has been expressly authorized by statute. For example, as concerns federal public assistance, Congress has enacted a specific statute

Kathryn Martin
January 29,2013
authorizing federal assistance to be conditioned on drug testing; no comparable provision exists under Indiana law.See, fhQ.:., 21 U.S.C. §862b (“Notwithstanding any other provision of law, States shall not be prohibited by the Federal Government from testing Welfare recipients for use of controlled substances nor from sanctioning Welfare recipients who test positive for use of controlled substances.”) When drug testing has been required under Indiana law, the legislature has made express provision for those allowed to conduct such testing. See, fhQ.:., I.C.§12-17.2-4-3.5 (conditioning continued licensure of child care centers on drug testing of all caregivers at child care center.); see, I.C.§4.13.18.5 (requiring contractors soliciting bids for public work contract to have a program of drug testing of its employees.); see, I.C.§22-4-15-2 (declaring as ineligible an individual who refuses, without cause, to submit to a drug test required by prospective employer.); see, I.C.§22-10-15-4 (operator of mine may compel drug testing of mine employee to determine illegal use of drugs.) In fact, in 2012, the Indiana legislature debated passage of House Bill No. 1007 which would have required applicants for Temporary Assistance for Needy Families (UTANF”) benefits to submit to compulsory drug testing; House Bill No. 1007 (attached) was not passed into law.

Further, one Indiana court has previously held that individuals with substance or alcohol abuse problems cannot be rendered ineligible for township assistance:
Given the broad encompassing nature of statute’s designations

(e.g. “any poor person”), only those groups that are speCifically excluded by the statues appear to be unentitled to relief … The Trustee cannot refuse to provide statutorv benefits to eligible individuals unless the statues excludes them. As the statue does not exclude individuals with substance or alcohol abuse problems from being eligible for assistance, the Trustee must come forth with the statutory benefits for these individuals. [emphasis added]

Center Tp. of Marion Co. v. Coe, 572 N.E.2d 1350, 1357 (1991). Subsequentto Coe, supra, the Indiana legislature did amend the Township Assistance Statute to provide that a trustee does not have to provide temporary housing assistance to a person under the influence of drugs or alcohol. See, I.C.§12-20-17-2. However, this provision is limited to temporary housing assistance, and not other forms township assistance.

At a minimum, the absence of any express statutory authority to compel applicants to submit to suspicion less drug tests creates an unsettled legal question as to a trustee’s statutory authority to compel such drug testing. Further, even to the extent the absence of express statutory authority to compel such drug tests is not an