Wednesday, April 01, 2015
Ind. Gov't. - "Would bill expand 'canned hunting' in Indiana?" It sure seems so ...
Fenced deer-hunting preserves in Indiana could greatly expand under language quietly slipped into an amended bill that passed a state Senate committee on Monday.In a Feb. 18th story, Niki Kelly of the FWJG pointed that the then-current draft allowed "only pre-existing facilities to be eligible for a license," but, in addition to the four "in operation under a court injunction – in Harrison, Blackford, Kosciusko and Marshall counties"
The amendment to House Bill 1453 says that any Indiana property owner with at least 160 acres can offer hunts for farm-raised deer so long as the property has a hunting area of at least 125 contiguous acres surrounded by a 10-foot-tall fence.
When HB 1453 passed the Indiana House in February, the bill only grandfathered in preserves that had been in business prior to 2015. [ILB: see below]
Critics say they're deeply troubled by the language in the amendment, which they say creates the potential for a massive statewide expansion of what they call "canned hunting."
"I think the bottom line it allows for unlimited expansion of these operations that the overwhelming majority of Hoosiers find distasteful," said Jeff Wells, president of the Indiana Conservation Officer Organization.
[A]bout a dozen existed before a long legal battle when the Department of Natural Resources tried to shut them down in 2005. Those would be eligible as well.
Ind. Gov't. - "Report: Indy can build, maintain justice center for less"
Supplementing this January 15, 2015 post, titled "My view: Rethink plan for justice center in Marion County" (quoting a letter to the Star by Les Zwirn is a retired Methodist Hospital executive), today the IndyStar has a long story by Brian Eason that includes:
A new report commissioned by the City-County Council argues that Marion County can build and maintain the proposed criminal justice center for substantially less with traditional financing than under the public-private partnership advocated by Mayor Greg Ballard.
The report also challenges the administration’s claim that the contract would effectively pay for itself through savings and new revenue, raising new questions about whether the county can truly afford the $1.75 billion, 35-year deal without new taxes. * * *
Ballard’s proposal relies on a type of public-private partnership that’s common in road projects but rarely used to finance a building. The administration and its advisers argue that it would be cheaper over the long haul to hire private consortium WMB Heartland Justice Partners to design, build, operate and maintain the facility for an annual fee, rather than borrow money, hire a contractor to build it and pay the maintenance costs along the way.
The council’s report recommends a more traditional design-build model but also uses an uncommon financing tool — one that the administration writes off as a “Frankenstein model.” Rather than float a bond backed by property taxes, the county would borrow against the county option income tax, or COIT, which funds general government operations.
Neither mechanism calls for a tax increase, although the council’s version likely would be backstopped by property taxes as a contingency.
The report was co-authored by Bart Brown, the council’s chief financial officer, and H.J. Umbaugh and Associates. They said they relied heavily on studies out of California and Ontario, Canada, that questioned the use of this sort of public-private partnership. One found that taxpayers spent $160 million too much on a courthouse in Long Beach, Calif.
“My recommendation is it’s not the best model,” Bob Clifford, a financial consultant with Umbaugh, told The Indianapolis Star. “The city could’ve done it cheaper.”
Ind. Gov't. - What is happening with RFRA? [Updated]
The news reports are that there is a draft version of changes to the RFRA, that is being reviewed first by the House Republican caucus. That caucus, which constitutes a super-majority of the House of Representatives, has been meeting, in private as always, since mid-morning. If they can come to some agreement, the same process, vetting the same draft, would be followed by the Senate Republican caucus.
Here is the most recent update (12:16 PM, as of this writing) of the IndyStar coverage by Tom LoBianco and Tony Cook. They reportedly have been shown a draft of the measure, and write:
A copy of the language obtained by The Indianapolis Star was being presented to Gov. Mike Pence Wednesday morning. The measure would specify that the new religious freedom law cannot be used as a legal defense to discriminate against residents based on their sexual orientation.Specifying "services, facilities, goods, or public accommodation" is a good step forward.
The measure goes much further than a "preamble" that was proposed earlier in the week, explaining exactly what the RFRA law does. But it doesn't go as far as establishing gays and lesbians as a protected class of citizens or repealing the law outright, both things that Republican leaders have said they could not support.
The clarification would say that the new "religious freedom" law does not authorize a provider – including businesses or individuals – to refuse to offer or provide its services, facilities, goods, or public accommodation to any member of the public based on sexual orientation or gender identity, in addition to race, color, religion, ancestry, age, national origin, disability, sex, or military service.
The proposed language exempts churches or other nonprofit religious organizations – including affiliated schools – from the definition of "provider."
In response to an ILB tweet to Tom LoLoBianco about whether the draft made clear that the RFRA did not pre-empt any local ordinances that were more protective, however, LoBianco said "It doesn't look like it."
[More] A new, 1:23 update to the Star story, includes:
It's unclear how the clarifying language will be received by socially conservative advocacy groups, which hold significant sway among Republicans at the Statehouse. Leaders of three of those groups – the American Family Association of Indiana, the Indiana Family Institute, and Advance America – declined comment or did not immediately return messages from The Star.[Updated at 2:06 PM] Here is a copy of the new RFRA. It is hard to see where the changes reported above would fit within its context.
Democrats continue to call for a repeal of the law and full statewide protections against discrimination of gays and lesbians.
"They're trying to thread the needle between the old-fashioned-thinking, anti-equality advocates in this building and the business community," House Minority Leader Scott Pelath said.
"There's a much simpler path if they're willing to accept it and that is to promptly repeal the law and have hearings resulting in passage of protections for everybody and that includes people based on their sexual orientation," he said. "To repair Indiana's image, you've got to get rid of it and you've got to decisively and understandably demonstrate that we're welcoming to everybody."
Ind. Decisions - None today from COA
No opinions or decisions today from the Court of Appeals.
Ind. Decisions - Tax Court decides one today
In Johnson Co. Property Tax Assessment Board of Appeals and the Johnson Co. Assessor v. KC Propco LLC d/b/a Kindercare Learning Center, a 14-page opinion, Judge Wentworth writes:
In this case, the Court is asked to examine whether the Indiana Board of Tax Review erred when it determined that the real property of KC Propco LLC d/b/a KinderCare Learning Center (KC Propco) qualified for an educational purposes exemption for the 2009 tax year. The Court finds that the Indiana Board did not err. * * *
As previously noted, when a building is exempt from property taxation because it is owned, occupied, and used for an educational purpose, the exemption also extends to the land upon which it sits. I.C. § 6-1.1-10-16(c). KC Propco’s building sits on a 2.607 acre parcel of land. (See Cert. Admin. R. at 12.) That entire parcel is exempt, not just the land attributable to the building’s footprint. See I.C. § 6-1.1-10-16(c). See also DeKalb Cnty. E. Cmty. Sch. Dist. v. Dep’t of Local Gov’t Fin., 930 N.E.2d 1257, 1260 (Ind. Tax Ct. 2010) (explaining that the Court will read statutes logically and in such a way as to prevent an absurd result). The Court will therefore not reverse the Indiana Board’s final determination on this basis.
Ind. Decisions - 7th Circuit posts one, decided March. 31st
In U.S.A. v. Miller (SD Ind., Pratt), a 20-page opinion, Judge Tinder writes:
Joshua Bowser, Christian Miller, and Frank Jordan were convicted as part of a large-scale prosecution of people associated with the Indianapolis Chapter of the Outlaws Motorcycle Club. For those not familiar with the Club, it was founded in 1935 in the Chicagoland area as group of motorcycle enthusiasts, and its website now boasts chapters all over the world. See Outlaws History, http://www.outlawsmcworld.com/history.htm (last visited Mar. 23, 2015). The Club, or at least some of its members, have had a spotty history of compliance with criminal laws. See Outlaws Motorcycle Club, Wikipedia, http://en.wikipedia.org/wiki/Outlaws_Motorcycle_Club (last visited Mar. 23, 2015). On appeal, the defendants challenge various aspects of their convictions and sentences. We remand in regard to a single issue related to a condition of Bowser’s supervised release, a point on which the government confesses error. In all other respects, we affirm. * * *
Accordingly, the judgments against Jordan, Miller, and Bowser are AFFIRMED, with the exception that Bowser’s case is REMANDED to the district court for further consideration of the term of his supervised release authorizing suspicionless searches.
Tuesday, March 31, 2015
Ind. Gov't. - Two former Indiana Supreme Court justices speak out on RFRA
In Indiana Forefront today, Ted Boehm writes in part:
Indiana’s business and civic leaders have spoken loudly and clearly: we need to fix this RFRA mess, and fix it now. The Star’s front page editorial has it right: adding sexual orientation to the list of groups protected by Indiana’s Civil Rights Law is the only way to demonstrate to the nation that we are in step with the times. * * *From an Indianapolis Star story this afternoon by Kristine Guerra and Tim Evans:
Thanks to the latest gerrymander, we have overwhelming Republican majorities in both houses. It is up to the legislative leadership to marshal sufficient Republican support to join with Democrats to get this job done.
Pressing for this needed legislation will no doubt put leadership at odds with many members of the Republican caucuses that selected them. But some issues require taking a stand whatever the cost in a party caucus or at the polls. This is one of those issues, and it affects all Hoosiers. Conventions, business headquarters, and big time events produce revenues that support schools and infrastructure all over Indiana.
Ordinary citizens can help. Communicate your concern to your legislators. Your support will make it easier for legislators to do the right thing. Don’t let the General Assembly undo the years of investment and progress that we’ve enjoyed.
Frank Sullivan Jr., who served on the Indiana Supreme Court from 1993 to 2012, said RFRA was a "code for 'we need to deny gay and lesbians the civil rights they are asserting.'"
He said that is obvious because the same people — including lawmakers and lobbyists — who were pushing for the failed constitutional ban on same-sex marriage are now behind the RFRA law. In his recollection of the past four decades, infringement of religious freedom has not been an issue in the state.
"I view this as being a purely political issue," he said.
Ind. Decisions - Ruling yesterday by Federal Judge Sarah Evans Barker means three Dearborn Co. judges may face jury trial
Here is the press release the ILB received today from Attorney Matthew W. Lorch:
Indiana Judges Discriminated Against Deaf CitizenHere is yesterday's 45-page opinion from the SD Indiana.
Indianapolis, IN – A federal court has ruled that three Indiana judges discriminated against a deaf citizen, Steve Prakel, who sought to attend court proceedings involving his mother. Prakel wanted to attend his mother’s court hearings. He requested that the courts provide interpreters. However, despite his multiple requests, the judges refused to provide interpreters for Prakel.
As a result, Prakel filed a lawsuit alleging that the judges discriminated against Prakel in violation of the Americans with Disabilities Act and Section 504 of the Rehabilitation Act. The defendants moved to throw out Prakel’s case on the ground that he was not a litigant, juror, or witness involved with his mother’s hearings.
The United States District Court rejected that argument and decided that the judges’ refusal to provide interpreters discriminated against Prakel on the basis of disability.
The three Indiana judges will now face a trial by jury, in which the jury will determine whether the judges were deliberately indifferent to Prakel’s requests for access. The United States Department of Justice filed an amicus brief on Prakel’s behalf in this matter.
Law - "AG Holder announces new limits on civil asset forfeitures"
On Jan. 16th, the ILB posted this entry quoting a Washington Post story, headed "AG Holder today barred local and state police from using federal law to seize cash, cars and other property without evidence that a crime occurred."
From about half-way through a new WAPO story today, by Robert O'Harrow Jr:
The policy guidance issued Tuesday focuses on IRS and Justice agents who made seizures relating to cases involving alleged “structuring,” the practice of intentionally limiting the size of bank transactions to avoid taxes or to hide ill-gotten funds. It is a felony offense to structure financial transactions.
Studies have found that enforcement efforts involving the seizure of bank accounts have often swept up criminals and innocent alike — including small-business owners who sometimes make multiple cash deposits for convenience and security rather than for illegal reasons.
Ind. Gov't. - "Pence Seeks RFRA Followup Making Clear Indiana Does Not Discriminate"
Eric Berman of WIBC has just posted a comprehensive story covering Gov. Pence's press conference this morning and the responses of Democratic leaders Rep. Pelath and Sen. Lanane. Here from the conclusion:
The governor also won't say whether the followup bill will clarify the status of local ordinances in Indianapolis and other cities which offer such protections. Opponents charge the RFRA law overrides those ordinances, while supporters say they're misreading the law. Pence says his sole focus is on making clear that discrimination won't be tolerated.
Pelath and Lanane endorse the call to add gays and lesbians to the civil rights law, but they say it should be in addition to repeal of RFRA, not instead of. Lanane says Democrats would "take a look at" the proposal. But he says he has doubts about the religious-freedom bill even if protections for gays and lesbians were ironclad. He questions whether the law and its federal and state counterparts adequately define what constitutes religious belief. And he objects to Indiana's inclusion of protections for businesses, along the lines of last year's Hobby Lobby decision from the Supreme Court.
With the wording of the followup bill still undetermined, Pence's goal of passing a fix by the end of the week appears unlikely. Legislators' only remaining session day this week is Thursday -- it would require a two-thirds vote in both houses to suspend normal procedures and pass the bill in a single day. Calling the House and Senate into session Wednesday would conflict with committee hearings on other bills. And legislators had already announced a four-day Easter weekend, because out-of-town legislators are losing their hotel rooms to Final Four visitors.
Pelath and Lanane say unless Republicans change their mind and endorse repeal, the process shouldn't be rushed. Pelath says the followup bill needs careful review to ensure it doesn't have to be fixed a second time.
Ind. Decisions - Court of Appeals issues 5 opinion(s) today (and 19 NFP memorandum decisions)
For publication opinions today (5):
In Berthal O. Williams and Patricia Williams v. The Indiana Rail Road Company, a 41-page, 2-1 opinion, Judge Pyle writes:
This appeal involves an “indenture” or agreement—dating back to 1901—between property owners and a railroad company. The indenture gave the railroad company a right to build and maintain a dam and the resulting accumulation of water on the landowners’ property at a depth of fourteen to twenty feet so that the railroad could use it for railroad purposes. More than 100 years later, subsequent property owners—Berthal O. Williams (“Berthal”) and Patricia Williams (“Patricia”) (collectively “the Williamses”)—attempted to enforce that indenture with a subsequent railroad—the Indiana Rail Road Company (“IRR”)—and argued that IRR had breached the indenture. IRR moved for summary judgment, arguing that: (1) the 1901 indenture between the original parties was merely a personal obligation and not a covenant that ran with the land; (2) even if it was, the express terms of the indenture did not impose a duty on it to maintain the pond at a specified depth; and (3) even if the indenture so required maintenance of a specific pond depth, the Williamses could not enforce it against IRR because any alleged breach occurred before the Williamses purchased the property, causing any such covenant to cease running with the land. The trial court summarily granted IRR’s summary judgment motion.In County of Lake and the Lake County Plan Commission v. Alan J. Pahl and Roderick Pahl, a 27-page opinion involving interpretation of a zoning ordinance.
The Williamses now appeal that order and argue that the trial court erred by granting summary judgment to IRR because none of IRR’s proposed arguments support that judgment. Because we conclude that the indenture was a covenant running with the land, that the terms set forth in the indenture required IRR to maintain the dam and the water level at a specified depth, and that the indenture contained a covenant, perpetual in nature, that did not cease upon a prior breach, we conclude that the trial court prematurely granted summary judgment. Accordingly, we reverse the trial court’s judgment and remand for further proceedings. * * *
Friedlander, J., concurs.
Mathias, J., dissents with separate opinion. [which begins, at p. 40 of 41] I respectfully dissent. I believe that the resolution of this case is to be found in the plain language of the indenture itself. * * *
This language grants to the railroad the right to construct and maintain a dam sufficient to acquire an accumulation of water of a depth not less than fourteen but not more than twenty feet. It imposes no duty or obligation to do so.
In Rapkin Group, Inc., as a minority member on behalf and for the benefit of The Eye Center Group, LLC, and Surgicenter Group, LLC v. Cardinal Ventures, Inc., et al. , a 13-page opinion, Judge Mathias writes:
Rapkin Group, Inc. (“Rapkin”) appeals the order of the Delaware Circuit CourtIn Jacqueline A. Jackson v. State of Indiana , a 9-page, 2-1 opinion, Judge concludes:
granting summary judgment in favor of Cardinal Ventures, Inc. (“Cardinal”), in
a shareholder derivative suit brought by Rapkin on behalf of The Eye Center Group, LLC (“ECG”) and Surgicenter Group, LLC (“SCG”) against Cardinal,
in which Cardinal was alleged to have breached a fiduciary duty and committed
constructive fraud upon ECG and SCG. On appeal, Rapkin claims that genuine
issues of material fact precluded the grant of summary judgment. We reverse and remand.
The State did not present sufficient evidence to show that Jackson violated the conditions of her probation. We hold that the trial court erred when it revoked Jackson’s probation. Reversed.In Wenzel Williams v. State of Indiana, a 13-page opinion, Judge Robb writes:
Mathias, J., concurs.
Bradford, J., dissents with separate opinion. [which begins, at p. 8] Because I believe that the State presented sufficient evidence to prove that Jackson violated the terms of her probation, I respectfully dissent from the majority’s conclusion otherwise.
Following a jury trial, Wenzel Williams was convicted of two counts of dealing in cocaine, both Class B felonies. He raises four issues on appeal: (1) whether the trial court abused its discretion by denying Williams’s motion for continuance on the morning of his jury trial; (2) whether the trial court abused its discretion by limiting Williams’s cross-examination of the State’s confidential informant; (3) whether the trial court abused its discretion by allowing a police officer to testify that he witnessed Williams participate in a drug transaction; and (4) whether the State committed prosecutorial misconduct during closing argument. Concluding none of Williams’s issues require reversal, we affirm. * * *NFP civil decisions today (4):
As an initial matter, the State asserts that Williams failed to preserve his claim of prosecutorial misconduct. The State cites Delarosa v. State, which declares that “[t]o preserve a claim of prosecutorial misconduct, a defendant must object and request an admonishment. If the defendant is not satisfied with the admonishment, the defendant must move for a new trial.” 938 N.E.2d 690, 696 (Ind. 2010); accord Ryan, 9 N.E.3d at 667. Because Williams did not seek an admonishment or a mistrial, the State believes Williams’s claim is forfeited. We cannot agree. Williams did object to the prosecutor’s statement during closing argument, and the trial court overruled that objection. It makes absolutely no sense for the State to say a defendant must request an admonishment and a mistrial after having been told by the trial court that no misconduct occurred. Statements in Delarosa and Ryan that requests for an admonishment and a mistrial are necessary to preserve a claim of prosecutorial misconduct presuppose that an objection is sustained and the trial court would actually have entertained a request for an admonishment. Put simply, Williams’s overruled objection is sufficient to preserve his prosecutorial misconduct claim. * * *
Conclusion. We conclude the trial court did not abuse its discretion by denying Williams’s motion for continuance, limiting cross-examination of Swaim, or allowing a witness to testify that he saw a drug transaction. Further, William’s alleged prosecutorial misconduct claim does not constitute reversible error.
NFP criminal decisions today (15):
Law - “How Does a Bail Bondsman Work?”
In this installment of Slate’s podcast about work, host Adam Davidson talks with veteran New York bail bondsman Ira Judelson. The half-hour interview is really interesting.
Ind. Decisions - "State may still have financial responsibility in State Fair stage collapse, COA rules"
Yesterday's 2-1 Court of Appeals opinion in In re: Indiana State Fair Litigation: Polet, et al. v. Mid-America Sound, et. al. (ILB summary here) is the subject of several stories today.
The AP reported in a brief story:
The state may be legally liable for responsible for some legal damages faced by a company that provided the rigging for a stage that collapsed at the Indiana State Fair in 2011, the Indiana Court of Appeals ruled Monday.Jill Disis of the Indianapolis Star reports:
The decision said Marion County Superior Court Judge Theodore Sosin failed to articulate why he had granted summary judgment to the Indiana State Fair Commission in March 2014 after Mid-America Sound Corp. argued that the state was financially responsible by contract for the cost of its defense and any judgments against it.
Attorney General Greg Zoeller said Monday's ruling means the state could be liable for an undetermined amount, inconsistent with the financial limits specified in the Tort Claims Act that limits the state's payout. Zoeller said he plans to appeal the case to the Indiana Supreme Court. [ILB: Here is the AG's news release.]
"Our position is, Indiana law is clear that the state cannot indemnify a private party, nor was there any agreement here to do so, and we will continue to fight the stage rigging contractor's attempt to shift its legal responsibility for the State Fair tragedy onto the public," he said in a statement.
When a stage collapsed in 2011 at the Indiana State Fair, the state paid out $11 million to 56 injured victims and the estates of the seven people who were killed.This Jan. 20, 2015 ILB post discusses that Jan., 2015 opinion, J.P. et al. v. Mid American Sound, et al.
But the state's financial liability for the tragedy might be far from finished, the Indiana Court of Appeals ruled Monday.
The 2-1 opinion reverses a lower court ruling that said the state could be excused from damage claims against a sound company being sued for the collapse. The case's latest turn in court could place the determination of whether the state has additional financial responsibility in the hands of a Marion County jury.
Attorneys for Mid-America Sound Corp., which supplied the stage materials for the fatal Aug. 13, 2011, production, argued that the state was obligated to help pay liability costs based on the terms of its contract with the company.
The state argued that expectation was unfair, and claimed state officials never willingly entered such an agreement with Mid-America Sound.
In March 2014, Marion Superior Judge Theodore Sosin agreed with the State Fair Commission, ruling that Mid-America Sound could not shift its liability to the state.
But the appeals court decision overturns that ruling, saying that Mid-America Sound can use its indeminification argument in trial court. That decision potentially holds the state accountable for financial liabilities beyond what it has already paid. * * *
Attorney General Greg Zoeller said in a statement the state would appeal the latest ruling to the Indiana Supreme Court. It has 30 days to file a petition to do so.
"My office put the victims first by fully paying out the state's maximum $5 million liability," Zoeller said. "As the guardian of tax dollars, the state is adamant that it will not and cannot assume the current and future legal bills of this private company for the company's conduct." * * *
The state was recently the subject of another lawsuit heard before the Indiana Court of Appeals. In that case, attorneys for the only victim to not accept settlement money from the state asked the court to throw out the law that limites the amount of damages the state can give out after a tragedy. In January, the court upheld the $5 million cap as constitutional.
In addition, the ILB has a special category, "Stage Collapse," listing all ILB posts on this topic. Of particular interest in the current case is this ILB post from August 9, 2012, concerning the status of invoices in the state contracting sysytem/
Ind. Gov't. - Amended fenced hunting bill will move to Senate 2nd reading calendar
Updating this ILB post from March 9th, headed "'Fenced hunting fight should end' - but where is the option?" Ryan Sabalow of the Indianapolis Star reports today on the latest version of the bill (HB 1453), as it was agreed to yesterday by the Senate Natural Resources Committee. Some quotes from the long story:
The bill's agricultural and business boosters, including representatives for Indiana's nearly 400 deer farms, touted new changes to House Bill 1453 as a way to satisfy critics who worry that interstate shipments in trophy deer could spread disease to Indiana.Here is a long list of earlier ILB entries on this topic.
Critics also argue that one Indiana preserve owner already has been accused of illegally drugging his trophies.
"I think this bill does a really nice job addressing those concerns," said Rep. Sean Eberhart, R-Shelbyville, the bill's primary sponsor in the House.
However, opponents of captive-deer hunting testified Monday that they would accept no compromises.
To them, high-fence hunting is appalling and should be illegal in Indiana. Opponents that included wildlife advocates, animal-rights activists, environmentalists and hunter associations testified that the bill opens the door for what they call "canned hunting" to expand and thrive.
"This doesn't regulate the practice," said Jeff Wells, president of the Indiana Conservation Officer Organization. "It deregulates the practice."
Wells was in charge of a team of state and federal wildlife officers whose investigation led to a conviction in one of the nation's most egregious captive-deer cases.
In 2005, Wells' team testified in federal court that Peru, Ind., hunting preserve owner Russ Bellar had been selling hunts to wealthy clients in pens so small that conservation officers called them "killing pens." Bellar also was accused of using illegal drugs on his deer. Jurors were shown video footage of a hunter shooting one of Bellar's deer that appeared drugged. * * *
The committee's vote sets the stage for a definitive vote in 2015 on whether the controversial practice of high-fence hunting will become officially legal in Indiana.
Last year's bill failed to advance in the full Senate by just one vote.
For nearly a decade, annual legislation that would formally legalize captive deer hunting has failed to advance in the General Assembly. * * *
[A]fter Bellar pleaded guilty in 2005, the Indiana Department of Natural Resources tried to shut down the state's hunting preserves, saying they were unethical and posed a disease threat to wild deer.
Bruce and other preserve owners sued.
The matter was tied up in court, and the fenced hunting ranches that stayed in business were allowed to sell hunts without oversight from the DNR, whose conservation officers enforce hunting laws.
The Indiana attorney general's office this month challenged an appellate court ruling that found the DNR had overstepped its authority.
The challenge before the Indiana Supreme Court is pending, but it could be withdrawn if the Senate passes HB 1453.
Monday, March 30, 2015
Ind. Gov't. - "Needle exchange bill advances in Indiana House" but faces veto threat
Maureen Hayden, CNHI, reports this evening in a long story in the New Albany News & Tribune:
The measure was added in committee to another health bill, SB 461.
INDIANAPOLIS — Half of Indiana’s 92 counties — now at risk for an HIV outbreak like the one that’s hit Scott County — could launch emergency programs that give needles to intravenous drug users under a measure advancing in the Indiana House.
But the proposal, aimed as a proactive measure to curb the spread of the virus that causes AIDS, faces a veto threat from Republican Gov. Mike Pence.
The measure, crafted by the Republican Public Health Committee Chairman Ed Clere, New Albany, would let local health officials adopt a needle-exchange program like the one that Pence authorized last week when he declared a health emergency in Scott County. The bill is limited in scope: The trigger that would allow local health departments to implement such programs is their rate of hepatitis C, a potentially lethal blood-borne virus that, like HIV, is commonly transmitted through sharing of contaminated needles and through sexual contact.
“We have an opportunity in these communities to keep them from becoming the next Scott County,” Clere said.
Health experts consider hepatitis C to be a key indicator of increased risk for HIV, and the two viruses are closely tied. Scott County had one of the largest increases in hepatitis C cases in Indiana in the three years preceding the current outbreak of HIV that’s been linked to IV drug use. * * *
Current law in Indiana bars needle exchanges for illegal drug users; it’s a crime to possess a hypodermic needle with intent to inject an illegal drug.
Clere’s measure would allow local health departments to work around that law in the event of a health emergency. Under the measure, the local health departments in 23 counties with the worst hepatitis C rates would be allowed to launch emergency needle programs as soon as the legislation is passed if their local doctors determine it’s needed to curb the spread of hepatitis C and HIV.
An additional 23 counties with high hepatitis C rates could also start such programs, after meeting additional conditions, including first holding a public hearing on the issue.
No state funding could be used to finance such a program and only nonprofit organizations approved by local health departments could dispense the needles to drug users.
The measure was passed by the Public Health Committee on Monday, with support from Republicans with high-risk counties in their districts.
“This puts the decision-making in the hands of local health officials, which is where it needs to be,” said Rep. Steve Davisson of Salem. * * *
Clere’s measure faces a veto threat from Pence, who’s had a long-standing opposition to needle-exchange programs that exist in 33 states. Pence has said he opposes them as a part of his “anti-drug” policy but so far has declined to explain why.
Last week — in announcing his decision to allow Scott County to implement a needle exchange program under his 30-day emergency order — Pence also threatened to kill any legislative measure that would expand such a program statewide.
In response to the threat, Clere narrowed his proposal to apply only to counties that face the highest risk of an HIV outbreak like the one in Scott County. But even the narrower proposal would face resistance from Pence, according to Joey Fox, Pence’s legislative liaison at the Indiana State Department of Health.
Clere’s frustration was evident Monday.
“I’m not sure where the goal post is now. It seems to keep moving,” he said.
Ind. Law - More on: RFRA: An analysis, and a comparison with its federal counterpart
On Friday the ILB wrote:
Matt Anderson, a civil trial lawyer with Wruble & Associates in South Bend, has written a post for his blog, IN Advance, that addresses many of the inquiries the ILB has been receiving.Friday seems long ago now, at that time that had been little dispassionate analysis of the law itself, and Matt jumped in with some great work.
ABC Indianapolis reporter Jordan Fischer did an interview with Matt today.
Also today, Matt has posted a long follow-up entry on his blog, headed "Indiana’s RFRA – A Second Look." It begins:
I would like to thank everyone who took the time to read my post on Friday regarding Indiana’s Religious Freedom Restoration Act. I was not expecting such high readership but it seems that several people had the same questions I did. I have been reviewing the comments – which pro or contra have been predominantly constructive and civil – as well as following the news and recent developments, including Gov. Pence’s appearance on This Week and his plan to clarify INRFRA.
There are several issues and questions surrounding this law and based on a survery of questions I have received, I will attempt to address a few as the day goes on.
Ind. Gov't. - Dunes Pavilion project detailed, ready for scrutiny; a marina in the mix?
Updating this March 25th ILB post, which includes a link to the Pavilion Partners LLC lease with IDNR, plus the prospectus and proposal, Carole Carlson of the Gary Post-Tribune has this long, informative Sunday story. Some quotes from the lengthy story:
While critics say the lease deal for the renovation and operation of the Indiana Dunes State Pavilion leaves the door to future improvements, state officials defended the process as open and fair.
In advance of an April 6 open house that offers renderings of the $3 to $4 million renovation project of the iconic dunes landmark, the Department of Natural Resources published a lengthy FAQ on its website to quell concerns. It also released a copy of the lease and the developers' original proposal.
"We're hoping people will see the proposal and get their questions answered," said Phil Bloom, DNR spokesman.
What has drawn concern is a new beachfront building — a three-story 30,000-square-foot banquet center adjacent to the Pavilion. The Porter County chapter of the Izzak Walton League opposes construction of the structure.
"We're looking at it with a fine-tooth comb, making sure they've done everything proper," said Jim Sweeney, chapter president. "If they haven't, we'll see them in court."
While not proposed at this time and not part of the lease arrangement, the developers are considering the development of a marina as part of a later phase. They say, in their proposal, they're interested in examining the possibility of lodging.
Sweeney said his group supports the Pavilion renovation, but said the state request for proposals didn't specify a stand-alone conference center. He worries it will be the first of other beach intrusions. * * *
Bloom said the possibility of an additional structure was mentioned in the state prospectus. The configuration of structural pillars — 15 feet apart in each direction inside the Pavilion — make it unsuitable for a public event or banquet, the DNR says. The ability to conduct meetings and weddings is considered critical for the facility to be financially viable year-round, according to the DNR.
The state advertised its request for proposals in 2011, detailing its expectations. It wanted a full-service restaurant and banquet facility, merchandise sales, a snack bar and showers. In the end, only two proposals gained consideration. The prospectus said the the project could include "other appropriate facilities that would be compatible and enhance the operation." * * *
According to the terms of the lease, the state will charge a minimum rental fee of $18,000 a year. After it's been opened for two years, the state will receive 2 percent of the gross receipts from food, alcohol, souvenirs, and other revenue. Patrons of the restaurant and banquet center will have to pay the park entry fee, as well.
Pavilion Partners have the option of two 15-year extensions. In its 2012 proposal, the developers estimated gross profits of $3.7 million during the first year and $4.8 million by year 10.
Also in its 26-page proposal, developers said one of its operator's intentions would be the development of a marina. They acknowledged a study would be required to determine if it's appropriate for the area and what impact it would have. * * *
The DNR distanced itself from a marina in a statement from Bortner who said: "DNR decided to not negotiate any provision for a marina at this time.If it is ever decided that a marina would be of benefit to Hoosiers, the lease agreement would need to be amended," he said.
Pavilion Partners proposal did not include a hotel, but it did say: "the developers are interested in exploring lodging opportunities at a later date."
The proposal said the restored Pavilion will house a second-floor restaurant and bar with seating for 120 people. The year-round restaurant would also offer entertainment and window views of Lake Michigan and the dunes.
A rooftop terrace will house a small bar, along with outdoor dining for 200 people. .It could also be used for viewing special events such as meteor showers, eclipses and star-gazing. * * *
Developers say their design is in keeping with state and federal guidelines for historic preservation. They say the new addition is designed to contrast the style of the Pavilion, "thus not confusing the public as to what is historic and what is not." The new addition with its large curved roof is intended to represent the surrounding sand dunes.
Ind. Decisions - Transfer list for week ending March 27, 2015
Here is the Clerk's transfer list for the week ending Friday, March 27, 2015. It is one page (and 4 cases) long.
No transfers were granted last week.
Two earlier orders granting transfer were vacated:
- Jason L. Dague v. State of Indiana - The order granting transfer is vacated, and transfer is hereby denied. - Dickson, Rucker, David, and Massa, JJ., concur. Rush, C.J., dissents from the denial of transfer. [ILB: there is currently no posted order on this; here is the now reinstated 11/12/14 NFP opinion]
- Robert L. Dixon v. State of Indiana - for details of this 3-2 order, see this March 22nd ILB post.
Ind. Decisions - Court of Appeals issues 2 opinion(s) today (and 13 NFP memorandum decisions)
For publication opinions today (2):
In In re: Indiana State Fair Litigation: Polet, et al. v. Mid-America Sound, et. al., a 31-page, 2-1 opinion, Judge May writes:
For many years, the Indiana State Fair Commission (“the Commission”) used equipment leased from Mid-America Sound (“Mid-America”) to produce outdoor concerts, including one on August 31, 2011, where a number of people were killed or injured when a stage at the Indiana State Fair collapsed. Lawsuits followed, and Mid-America asserted cross-claims or third-party claims seeking indemnification from the Commission. The Commission moved for summary judgment on the question whether it must indemnify Mid-America, arguing the indemnity provisions in their agreements were unconscionable; violated the Indiana Tort Claims Act, Ind. Code ch. 34-13-3; could not be applied retroactively; and were outside the Commission’s authority. The trial court granted the Commission’s motion but did not articulate the basis for its decision. As the Tort Claims Act does not apply and there are genuine issues of fact regarding the validity and enforceability of the indemnification agreement, we reverse and remand for trial. * * *ILB observation: At the end of this Oct. 10, 2011 post, the ILB, citing several Indiana federal opinions, asked:
The Commission characterizes the indemnity provision in the case before us as retroactive because the indemnity provisions were printed on an invoice, and the invoice was not provided to the Commission until after Mid-America had rendered its services and after the stage collapse. However, the Commission reviewed and signed the invoices Mid-America submitted after the state collapse, and it paid Mid-America.
The designated evidence of the parties’ course of dealings gives rise to a genuine issue whether the application of the indemnity provision may fairly be characterized as “retroactive,” and summary judgment therefore could not properly be granted on that ground. Before the stage collapse, the Commission agreed to continue the parties’ longstanding course of dealing, which had for years included indemnity terms on invoices not submitted until after the Fair. * * *
The Commission next argues the indemnity provisions were unconscionable. The Commission characterizes the indemnification provision as something Mid-America “slipped in” in 2003, (Commission’s Br. at 3), and as being “tucked into the middle of small boilerplate print on the back of the invoice,” (id. at 4). We cannot find, as a matter of law, this indemnification provision was unconscionable. * * *
Nor was the Commission entitled to summary judgment on the ground it “did not knowingly and willingly agree to indemnification.” (Commission’s Br. at 14.) In light of the ample evidence it reviewed, audited, approved, and paid the invoice at issue, and numerous similar invoices over the years, summary judgment on the ground the Commission was unwilling to agree to indemnification or did not know it was doing so was error. * * *
Even if there was a valid indemnity agreement, the Commission argues, it cannot be enforced because the Commission, as a government entity, cannot enter into such an agreement. It relies on the Indiana Tort Claims Act (ITCA) and the Appropriations Clause of the Indiana Constitution. * * *
The Commission argues the ITCA applies to this contract action because the indemnity clause is in fact “a means of shifting tort liability to Indiana taxpayers,” and only the legislature “decides the terms of potential taxpayer exposure to civil damages suits.” * * *
The record before us does not reflect the Commission’s enabling statute or its own rules concerning contracts prohibit indemnification agreements, and it is clear the legislature knows how to limit or proscribe indemnity provisions when it wants to do so. See, e.g., Ind. Code § 8-2.1-26-5 (prohibiting indemnification agreements in motor carrier transportation contracts with regulated public utilities), and Ind. Code § 13-23-13-10 (prohibiting indemnification agreements in agreements by owners or operators of underground storage tanks who are liable to the state for the costs of corrective action). * * *
Conclusion. There are genuine issues of fact regarding the validity and enforceability of the indemnification provisions in the vouchers Mid-America submitted to the Commission and the Commission reviewed and paid, and the Commission is not shielded by the ITCA. Summary judgment for the Commission was therefore error, and we accordingly reverse and remand for trial.
Friedlander, J., concurs.
Vaidik, C.J., dissents with separate opinion. [that begins at p. 23] * * * The majority reverses the trial court’s grant of summary judgment in favor of the Commission, finding that there are genuine issues of material fact as to the validity and enforceability of the indemnification clauses. Given that the purported indemnification clauses were located on the backside of unsigned invoices, I have serious doubts as to whether there was an enforceable contract between Mid-America and the Commission. But I respectfully dissent from the majority’s opinion because, taking substance over form, I believe that this case is nothing more than Mid-America’s attempt to shift tort liability to the Commission—a tort in contract’s clothing, if you will. I would find that the Commission has immunity from Mid-America’s claims against them since this is the type of action contemplated by the Indiana Tort Claims Act (ITCA) and the Commission is a governmental entity. * * *
 The Commission also argues at some length that a document it refers to as the “Professional Services Contract Manual,” (Commission’s Br. at 28), prohibits state entities from entering into indemnification agreements. That manual does not appear to be in the record before us, and a web address to which the State directs us returns this result: “Error - Page Not Found. The Indiana Department of Administration has made major improvements to our site!” http://www.in.gov/ai/errors/idoa_404.html (last visited January 2, 2015). We are therefore unable to address that argument.
If the state lottery is a quasi-public entity, and thus not an arm of the State of Indiana, is it entitled to sovereign immunity? Several recent federal court decisions have said "no."In Paul D. Mobley v. State of Indiana, a 12-page opinion, Chief Judge Vaidik writes:
Paul D. Mobley appeals his conviction for Class A misdemeanor patronizing a prostitute. Mobley argues that the evidence is insufficient to sustain his conviction or, in the alternative, that the State failed to rebut his defense of entrapment. We find that the evidence is sufficient to prove that Mobley knowingly agreed to pay an undercover detective $20 to perform fellatio on him. We also conclude that according to the Indiana Supreme Court’s recent decision in Griesemer v. State, --- N.E.3d ---, 2015 WL 970660 (Ind. 2015), because a reasonable trier of fact could have found the State proved, beyond a reasonable doubt, that the police did not induce Mobley, his entrapment defense fails. We therefore affirm his conviction for Class A misdemeanor patronizing a prostitute.NFP civil decisions today (8):
NFP criminal decisions today (5):
Ind. Decisions "Court of Appeals rules for Long Beach homeowners"
LBLHA, LLC, Margaret L. West, and Don H. Gunderson v. Town of Long Beach, Indiana, Alliance for the Great Lakes and Save the Dunes, Long Beach Community Alliance, Patrick Cannon, et al., a Court of Appeals opinion issued March 26th, is the subject of a brief story posted last evening in the Michigan City News-Dispatch. Some quotes:
Here is a long list of ILB posts on Lake Michigan shorefront property rights.
LONG BEACH — The Indiana Court of Appeals has ruled in favor of Long Beach property owners along Lake Michigan who claim the Town of Long Beach acted unconstitutionally to take their beach property.
In a 3-0 decision last week, the Appellate Court reversed summary judgments by La Porte County Circuit Court Judge Thomas Alevizos in December 2013 and April 2014 and sent the dispute back to his court. The Appellate Court also allowed the state, or appropriate state officials, to be a party or parties to the lawsuit.
In essence, the appellate court revived all property claims by the private beachfront owners and allowed them to proceed with their lawsuit against the town. If they prevail, the town could be held legally liable for damages.
Alevizos' two decisions had upheld the town's definitions of what constituted private and public property, and the boundary between them, along the stretch of beach in Long Beach.
In his ruling, Alevizos cited the court case United States v. Carstens, which says, "According to the Indiana 'public trust doctrine,' the beach area between the ordinary high watermark (581.5 feet) and the edge of the water of Lake Michigan is public land not owned by any person, entity or municipality."
Alevizos later clarified he is not qualified to determine ownership of the land between the water's edge and the ordinary high water mark, saying it is a matter that must be handled by the Indiana Legislature or an appellate court in a case in which the state is a party.
As plaintiff, the Long Beach Lakeshore Homeowners Association (LBLHA) contended the boundary between public land and private land along the beach should be the water's edge – the line at which the water usually stands when undisturbed. The owners say their property deeds and plats support their contention that their property extends at least to the water's edge.
The property owners have contended that through such measures as newsletters and the Town Council's resolutions, the Town of Long Beach has put itself at the risk of liability for compensating the property owners.
Stewards of Our Shores, a nonprofit organization maintained by LBLHA, said Thursday's appeals court ruling stands as "a cautionary tale," both for municipalities and for anyone who uses the lakefront without concern for trespassing.
Ind. Gov't. - Some weekend reactions to, and stories on, the RFRA controversy
A statement from Indiana University President Michael A. McRobbie this weekend begins:
"The recent passage of the Indiana Religious Freedom Restoration Act has brought significant negative attention to the state of Indiana throughout the nation and indeed the world, because the law is widely viewed as signaling an unwelcoming and discriminatory atmosphere in our state.An editorial from The Charlotte Observer this weekend, headlined " Indiana shows what not do do: N.C. also eyeing so-called religious freedom bill," concluded:
"While Indiana University hopes that the controversy of the past few days will move the state government to reconsider this unnecessary legislation, the damage already done to Indiana’s reputation is such that all public officials and public institutions in our state need to reaffirm our absolute commitment to the Hoosier values of fair treatment and non-discrimination.
The fallout in Indiana was immediate. Salesforce, a $4 billion company, said it would “dramatically reduce our investments in Indiana.” The NCAA, which is holding the Final Four in Indianapolis next weekend, suggested it would reconsider holding future events there. The state’s largest convention – Gen Con – said it would consider moving. The Disciples of Christ may move its 2017 convention. And Yelp’s CEO said the company would not expand in states with such laws.Katie Sanders of PolitFact,in a long, good column Sunday headed "Did Barack Obama vote for Religious Freedom Restoration Act with 'very same' wording as Indiana's?" concluded:
That’s progress of a sort. Nineteen states passed similar bills over the past 20 years with little fanfare. The outrage we’re seeing in Indiana shows the new awareness of LGBT equality.
Does North Carolina really want to go down this road? Do we want to sanction discrimination by letting anyone deny service to whomever they please? Do we want to jeopardize conventions, job growth and the ability to recruit?
Arizona was going to last year, but under pressure from the NFL and others, Gov. Jan Brewer vetoed the bill. If it reaches his desk, Gov. Pat McCrory should do the same here.
Pence played defense Sunday, saying, that sexual orientation "doesn’t have anything to do with" the Religious Freedom Restoration Act," adding that "then state-Sen Barack Obama voted for (the Religious Freedom Restoration Act) when he was in the state Senate of Illinois. The very same language." A spokeswoman for Pence did not respond.Judd Legum of ThinkProgress writes today:
The vote is clear enough, as is the name of the bill, but Pence’s explanation is an oversimplification of the purpose of the law then and the motivation of some pushing the law now.
Proponents of this law are pushing the measure as a way that businesses can seek protection "for refusing to participate in a homosexual marriage." Whether that argument will win in the courts is up for debate. That was far from an intent of Illinois’ law, or the others passed more than 15 years ago.
As for the language itself, Pence is incorrect to say the language is the same. Some pro-LGBT rights groups say the outright inclusion of a corporation or company as a "person" is overly broad, though the true impact will likely only really be settled when matters are sent to a court.
Overall, Pence’s claim is partially accurate but misses important context. We rate it Half True.
The Indiana law differs substantially from the federal Religious Freedom Restoration Act, signed by President Clinton in 1993, and all other state RFRAs.Dave Bangert's column today in the Lafayette Journal & Courier concludes:
There are several important differences in the Indiana bill but the most striking is Section 9. Under that section, a “person” (which under the law includes not only an individual but also any organization, partnership, LLC, corporation, company, firm, church, religious society, or other entity) whose “exercise of religion has been substantially burdened, or is likely to be substantially burdened” can use the law as “a claim or defense… regardless of whether the state or any other governmental entity is a party to the proceeding.”
Every other Religious Freedom Restoration Act applies to disputes between a person or entity and a government. Indiana’s is the only law that explicitly applies to disputes between private citizens. This means it could be used as a cudgel by corporations to justify discrimination against individuals that might otherwise be protected under law. Indiana trial lawyer Matt Anderson, discussing this difference, writes that the Indiana law is “more broadly written than its federal and state predecessors” and opens up “the path of least resistance among its species to have a court adjudicate it in a manner that could ultimately be used to discriminate…”
This is not a trivial distinction. Arizona enacted an RFRA that applied to actions involving the government in 2012. When the state legislature tried to expand it to purely private disputes in 2014, nationwide protests erupted and Jan Brewer, Arizona’s Republican governor, vetoed the measure.
Thirty law professors who are experts in religious freedom wrote in February that the Indiana law does not “mirror the language of the federal RFRA” and “will… create confusion, conflict, and a wave of litigation that will threaten the clarity of religious liberty rights in Indiana while undermining the state’s ability to enforce other compelling interests. This confusion and conflict will increasingly take the form of private actors, such as employers, landlords, small business owners, or corporations, taking the law into their own hands and acting in ways that violate generally applicable laws on the grounds that they have a religious justification for doing so. Members of the public will then be asked to bear the cost of their employer’s, their landlord’s, their local shopkeeper’s, or a police officer’s private religious beliefs.”
Various federal courts have differing interpretations of the scope of the federal RFRA. The Indiana law explicitly resolves all those disputes in one direction — and then goes even further.
This is evident in Section 5 of the Indiana law which provides protections to religious practices “whether or not compelled by, or central to, a system of religious belief.” So entities can seek to justify discriminatory practices based on religious practices that are fringe to their belief system.
Beyond the differences between the Indiana law and other states, many of the other states that have a RFRA also have a law that prohibits discrimination based on sexual orientation. Indiana does not have one. * * *
Claiming that the Indiana law is just like the laws in 19 other states, however, is simply not true. Other states are following Indiana’s lead and broadening the language of the law.
Why the change? Beyond the substance, the politics of the RFRA has become much different. When the federal law was signed in 1993, it was thought “to be about benign and relatively uncontroversial matters, such as allowing Muslim jail inmates to wear closely trimmed beards, or assuring that churches could feed homeless people in public parks.” Today, Indiana’s law is driven “by the politics of anti-gay backlash. Their most ardent supporters come from an increasingly angry, marginalized, and shrill subset of Christian conservative activists.”
Should those other 19 states be subjected to boycotts, too? Take that up with the convention bureaus and Chambers of Commerce in St. Louis or Chicago or Orlando.
Right now, the "Yeah, but, what about them?" defense isn't going to deflect attention from next weekend, when Easter and the NCAA Final Four alternate days in Indianapolis. And, yes, the NCAA has joined the line in questioning Indiana's intent.
This one belongs to you and yours, Gov. Pence.
It didn't have to be this way. There were plenty of red flags before Senate Bill 101 cleared the General Assembly by wide margins — and not just from people who, as state Sen. Brandt Hershman, R-Buck Creek, put it in social media posts over the weekend, have agendas.
Among the loudest of those warnings, the Indiana Chamber of Commerce outlined how perceptions of the measure would be taken in the business and convention community, in and out of the state.
These were smart people. These weren't people chanting their agendas in the Statehouse rotunda. These were traditional allies of the GOP supermajority in the House and Senate. These were people who would have taken the governor's phone call and explained calmly what they saw coming. And it wouldn't have just been about which bakers wouldn't decorate which cupcakes for which wedding.
Maybe they were all misinformed, as the governor says.
But as Statehouse Republicans are finding out, the standard for a nationwide indictment of Indiana isn't that high, even if charges of institutional discrimination would never produce a conviction stemming from Senate Bill 101.
So now, Pence is open to clarification.
The General Assembly tried the clarification route early in 2014, too, when House Republicans tried to head off mounting criticism about House Joint Resolution 3, the proposed constitutional ban on same-sex marriage and similar unions. The bill — inexplicably intended to supplement a constitutional amendment question on a statewide ballot — accomplished only one thing: The more you have to explain that something isn't discriminatory, the shakier its premise.
That's shaping up to be the case with Indiana's version of the Religious Freedom Restoration Act this year. The only difference then was that discussion came before the governor's signature.
Pence says he has no desire to add sexual orientation as a protected class in the state's civil liberties laws. "That's not on my agenda," Pence said Sunday on ABC. So what sort of clarification does he have in mind that won't send Indiana spinning even worse? That's a good question.
Pence and Statehouse Republicans should have seen this coming. They didn't. And the state is paying for it.
So now, what confidence is there that the governor can do damage control, instead of just more damage?
Catch-up: What did you miss over the weekend from the ILB?
From Sunday, March 29, 2015:
- Ind. Courts - Judicial Center's Legislative Update: 11th and 12th weekly installments
- Ind. Gov't. - Some bills the ILB is following, no endorsements intended [Updated]
- Ind. Gov't. - "What the 'religious freedom' law really means for Indiana"
- Ind. Gov't. - "Illinois law on religious objection balanced by discrimination ban"
- Ind. Law - What is needed to fix SEA 101, the Indiana's new RFRA, other than repealing it?
- Ind. Law - RFRA: An analysis, and a comparison with its federal counterpart
- Ind. Law - Indiana's RFRA and the perception of intolerance
Ind. Decisions - Upcoming oral arguments this week and next
This week's oral arguments before the Supreme Court (week of 3/30/15):
Thursday, April 2
- 9:00 AM - Thomson, Inc. n/k/a Technicolor USA, Inc. v. Insurance Company of North America n/k/a Century Indemnity Company, et al. ( 49A05-1109-PL-470) The Marion Superior Court issued partial summary judgment orders addressing the duty to defend, defense costs, and interpretation of insurance policy language. The Court of Appeals affirmed in part, reversed in part, and remanded. Thomson v. Insurance Co. of N. America, 11 N.E.3d 982 (Ind. Ct. App. 2014). Thomson and an insurance company have each petitioned the Supreme Court to accept jurisdiction over the appeal.
ILB: This was a June 19, 2014, 88-page, 2014 COA opinion.
- 9:45 AM - Antonio Smith v. State of Indiana (71A04-1312-CR-609) Following a jury trial, the St. Joseph Superior Court found Smith guilty of burglary. The Court of Appeals reversed, finding Smith’s conviction had been obtained through the State’s knowing use of perjured testimony. Antonio Smith v. State, 22 N.E.3d 620, 628 (Ind. Ct. App. 2014). The State has petitioned the Supreme Court to accept jurisdiction over the appeal.
ILB: This was a Nov. 24, 2014 COA opinion which includes at footnote 2: "Thus, we direct the Clerk of this Court to send a copy of this opinion to the Disciplinary Commission. We also note that instances of prosecutorial misbehavior continue to come before us on appeal notwithstanding our admonishments."
- 10:30 AM - Indiana Insurance Company v. Patricia Kopetsky (49S02-1502-PL-109) Indiana Insurance Company filed a complaint in the Marion Superior Court asking for a judgment declaring it has no obligation under its insurance policies to defend or indemnify Kopetsky against claims he knew a subdivision development contained contamination and sold lots to a builder without revealing the problem. The trial court found coverage and entered summary judgment for Kopetsky. The Court of Appeals affirmed in part, reversed in part, and remanded. Indiana Ins. Co. v. Kopetsky, 11 N.E.3d 508 (Ind. Ct. App. 2014), reh'g granted, 14 N.E.3d 850 (Ind. Ct. App. 2014), vacated. The Supreme Court has granted petitions to transfer and has assumed jurisdiction over the appeal.
Thursday, April 9
- 9:00 AM - State of Indiana v. Chase R. Downey (10A01-1310-CR-432) The Clark Circuit Court where Downey’s criminal case was pending issued an order vacating an order previously issued by the Clark Superior Court for the transfer of Downey’s property to the federal government for forfeiture. When the State appealed, the Court of Appeals reversed. State v. Downey, 14 N.E.3d 812 (Ind. Ct. App. 2014). Downey has petitioned the Supreme Court to accept jurisdiction over the appeal.
ILB: This was a July 31, 2014, 2-1 COA opinion.
- 9:45 AM - William Clyde Gibson, III v. State of Indiana (22S00-1206-DP-359) Following a jury trial, Gibson was found guilty of murdering Christine Whitis, and following the jury’s sentencing decision, the Floyd Superior Court sentenced Gibson to death. In this direct appeal, Gibson raises issues relating to jury selection, voluntary manslaughter, and timing of the trial.
- 1:00 PM - Phyllis Dodson, as Special Administrator of the Estate of Eboni Dodson, Deceased v. Curt Carlson, Carmel Hotel Company, et al. (49A04-1305-CT-267) After attending a business meeting at which he consumed alcohol, Curt Carlson was driving home when he struck a disabled vehicle and its driver was killed. The deceased's estate filed a complaint against several defendants including Carlson's employer. The Marion Superior Court granted summary judgment for the employer. The Court of Appeals affirmed on grounds Carlson was not acting within the scope of his employment at the time of the accident. Dodson v. Carlson, 14 N.E.3d 781 (Ind. Ct. App. 2014). The estate has petitioned the Supreme Court to accept jurisdiction over the appeal. [Note: The Supreme Court will be taking a road trip; the oral argument will be at Columbus North High School in Bartholomew County.]
ILB: This was a 7/25/14 opinion where the COA wrote: "Carlson was not acting in the scope of his employment at the time of the accident. The doctrine of respondeat superior is limited by the 'going and coming' rule: 'an employee on his way to work is normally not in the employment of the corporation.'"
This week's oral arguments before the Court of Appeals (week of 3/30/15):
Monday, March 30
- 1:30 PM - Town of Zionsville v. Town of Whitestown (06A01-1410-PL-432) In 2014, under the auspices of the Indiana Government Modernization Act, the Town of Zionsville sought to reorganize with Perry Township, in Boone County. Between Zionsville and most of Perry Township lay the Town of Whitestown, which itself sought to annex portions of Perry Township and thus opposed the proposed reorganization efforts of Zionsville and Perry Township. Whitestown and Angel Badillo, a Perry Township resident, filed suit to stop the proposed reorganization, and Zionsville counterclaimed to stop Whitestown's annexation efforts. The trial court entered summary judgment in favor of Whitestown. However, voters approved the Zionsville-Perry Township reorganization during the pendency of the litigation. Zionsville now appeals. The Scheduled Panel Members are: Judges Bailey, Robb and Brown. [Where: Court of Appeals Courtroom (WEBCAST)]
- 1:00 PM - Wells v. State (53A04-1402-CR-61) Andre Wells was convicted of killing his mother's husband. He argues on appeal that the trial court should not have admitted certain evidence against him, including evidence of his whereabouts around the time of the murder based on records of his cellphone location; wire recordings secretly made by someone who told police that Wells confessed the crime to him; and testimony that Wells initiated a "murder-for-hire" plot to have that person killed. The Scheduled Panel Members are: Judges Baker, May and Sr. Judge Barteau. [Where: University of Southern Indiana, Mitchell Auditorium/Health Professions Building, Evansville, IN ]
Next week's oral arguments before the Court of Appeals (week of 4/6/15):
Wednesday, April 8
- 9:30 AM - Reyes-Valdes v. State (15A01-1406-CR-237) A jury found David Reyes-Valdes guilty of dealing in cocaine and conspiracy to deal cocaine. He was sentenced to 50 years in prison. Reyes-Valdes appeals his convictions and sentence. He first claims that the evidence was insufficient to prove beyond a reasonable doubt that he was guilty of either of the charges against him. He also raises an issue of double jeopardy with regard to his convictions. Finally, he contends that his sentence of 50 years is inappropriate and asks this court to use its power under the Indiana Constitution and Appellate Rule 7 to revise his sentence. The Scheduled Panel Members are: Judges Najam, Robb and Brown. [Where: Paoli High School, 501 Elm St., Paoli, IN ]
ONLY those Court of Appeals oral arguments presented in the Supreme or Court of Appeals Courtrooms will be accessible via videocast. [Note: This may be changing...]
The past COA webcasts which have been webcast are accessible here.
NOTE: For a printable version of this list of upcoming oral arguments, click on the date in the next line. Then select "Print" from your browser.
Sunday, March 29, 2015
Ind. Courts - Judicial Center's Legislative Update: 11th and 12th weekly installments
Here is the 12th (ILB missed highlighting the 11th installment, sorry) weekly installment of the Indiana Judicial Center's Legislative Update for the 2015 legislative session. This was the fourth week for bills to be considered in the 2nd house committee. Two weeks remain.
The ILB found the discussion at the March 27th meeting of the House Judiciary Committee on SB 523 to be particularly interesting. This is the bill relating to the Marion County Small Claims Courts.
The ILB wrote at length on March 5 on major issues facing the Marion County Small Claims Courts, some of which were first reported in 2011.
Ind. Gov't. - Some bills the ILB is following, no endorsements intended [Updated]
Some bills the ILB is following:
- SJR 19 - Balanced budget - in House Judiciary
- SB 12 - Judicial retirement age - in House Judiciary
- SB 101 - RFRA - signed into law
- SB 388 - Fofeiture, reporting of - in House Judiciary
- SB 500 - Included charge for public records, language currently removed from bill on education regulation
- SB 507 - Attorney and judicial discipline complaints - in House Judiciary
- SB 523 - Marion County Small Claims Courts - in House Judiciary
NOTE: As of 3/29, none of the above bills assigned to House Judiciary is scheduled to be heard at its Monday, March 30th (next to last?) meeting at 10:30 AM in Room 156-D.
- HB 1351 - No more stringent - in Tax & Fiscal Policy
- HB 1453 - Fenced Hunting - Reassigned to committee on Natural Resources [UPDATED: see IndyStar story by Ryan Sabalow, says will be heard at 10AM Monday]
- HB 1425 and HB 1001 - Court fees and budget - in Appropriations
Ind. Gov't. - "What the 'religious freedom' law really means for Indiana"
Supplementing the two earlier ILB posts this morning ("What is needed to fix SEA 101" and "Illinois law on religious objection balanced by discrimination ban"), Stephanie Wang of the Indianapolis Star has a good story today in the Indianapolis Star that concludes:
[W]ith Indiana not having a statewide nondiscrimination law that protects sexual orientation and gender identity, the RFRA issue has become tightly intertwined with LGBT issues.
That's what makes Indiana's RFRA distinct from the federal law and versions in 19 other states.
Consider Illinois, our neighboring state that also has a RFRA.
Illinois' RFRA was approved in 1998. But Illinois also passed a same-sex marriage law in 2013 that codifies equal status and protection for couples and their families.
Illinois' Religious Freedom and Marriage Fairness Act at the same time preserved religious rights by explicitly saying religious officials would not be required to solemnize any marriages that went against their beliefs, nor would religious facilities be required to hold such marriage ceremonies.
"What we want," said Wilson, who suggested those religious exemptions to the law, "is people to be able to go forward in society, especially when there is a great social change like marriage, just to know how they're going to live together in peace."
"With a RFRA," she explained, "you have to litigate all the way through to figure out if you've won. People don't have clarity until after the fact where their rights begin and the other guy's rights end."
During RFRA discussions in Indiana, state Republican leaders have dismissed statewide class protection for sexual orientation or gender identity. In most cities, there are no local laws that require equal treatment of gay people. That means discrimination on the basis of sexual orientation has never been expressly prohibited in most of Indiana.
After exposing the gap in LGBT protections and the political unwillingness to close it, Indiana's RFRA debate begins for some to look like a pre-emptive move to block social currents. And therein lies the questions over intent.
Indiana is just one year removed from a battle to block marriage equality, and where the right for same-sex couples to marry was only won by a court ruling overturning a longstanding ban.
It is telling to opponents of the religious freedom act that the law was driven mostly by the same conservative Christians who lost their fights against marriage equality. It's also telling, opponents say, that one of the law's primary sponsors, Republican state Sen. Scott Schneider, has touted the notion — which will be an issue for the court to settle — that Indiana's RFRA could exempt Christian businesses from having to provide wedding services to gay couples.
To some, that sounds like legalized discrimination. To others, it's protecting religious rights.
If you're wondering why RFRA does not realistically revive fears of racial discrimination by private businesses, look no further than the U.S. Constitution, federal and state equal protection laws and lots of case precedent. But LGBT rights don't have such broad and explicit protections.
In the few Hoosier cities with nondiscrimination laws, legal experts predict protecting LGBT rights will stand as a compelling government interest.
But for the state as a whole, is it a compelling interest? Or, in the state of Indiana in 2015 and beyond, will protecting LGBT rights be seen as violating someone else's religious rights?
Ind. Gov't. - "Illinois law on religious objection balanced by discrimination ban"
Kim Geiger of the Chicago Tribune wrote yesterday in a story that begins:
When Indiana Gov. Mike Pence signed a new state law that allows people and companies to claim a religious objection to doing business with same-sex couples, he pointed to Illinois and Kentucky, saying he was simply bringing the state in line with its neighbors.
But the Republican governor left out an important fact. While Illinois does have a law that gives special protections to religious objectors, it also bans discrimination based on sexual orientation. Indiana, on the other hand, has no such ban.
Ind. Law - What is needed to fix SEA 101, the Indiana's new RFRA, other than repealing it?
What is needed to fix SEA 101, other than repealing it? Two things:
First, to the new RFRA itself, add the Lanane amendment, wich failed in the Senate. It would add a new subsection (b) to the first section of the law, which details the applicability of the law, to clarify that:
(b) This chapter does not apply to:This change would mean that RFRA does not override local nondiscrimination ordinances or the statewide civil rights law.
(1) IC 22-9-1 (Indiana civil rights law); or
(2) any state law or local ordinance that prohibits discrimination on the basis of sexual orientation.
But what about the rest of the State, where there is no local nondiscrimination ordinance that includes gays? And what about the now national perception of Indiana as intolerant?
The answer would be to amend the Indiana civil rights act itself, IC 22-9-1, to insert the words "sexual orientation" into the phrase "race, religion, color, sex, disability, national origin, ancestry, or status as a veteran," wherever it appears.
Friday, March 27, 2015
Ind. Law - RFRA: An analysis, and a comparison with its federal counterpart
Matt Anderson, a civil trial lawyer with Wruble & Associates in South Bend, has written a post for his blog, IN Advance, that addresses many of the inquiries the ILB has been receiving, including:
- Does IRFRA resemble its federal counterpart?
- What are the controversial provisions and why?
- The timing factor.
- What to make of it all?
ILB: Another law to look at, and compare, is the Illinois RFRA, from 1998.
Also of interest is this quote from a March 1, 2014 Washington Post article:
How many states already provide heightened protection for the exercise of religion? The answer? Thirty-one, 18 of which passed state laws based on the 1993 federal Religious Freedom Restoration Act. The protections in an additional 13 states came through court rulings.
"These state RFRAs were enacted in response to Supreme Court decisions that had nothing to do with gay rights or same-sex marriage," explained University of Virginia law professor Douglas Laycock in an e-mail. "And the state court decisions interpreting their state constitutions arose in all sorts of contexts, mostly far removed from gay rights or same-sex marriage. There were cases about Amish buggies, hunting moose for native Alaskan funeral rituals, an attempt to take a church building by eminent domain, landmark laws that prohibited churches from modifying their buildings – all sorts of diverse conflicts between religious practice and pervasive regulation."
A new political fight has emerged in part because some of these more recent proposals are shifting the definition of when citizens can opt out on religious grounds. The federal law says that the government may not pass a law that “substantially burdens a person’s exercise of religion.” But now some businesses -- including the ones who are challenging the Affordable Care Act's contraception coverage mandate in the Supreme Court -- are arguing that they don't have to meet this substantial-burden test.
Ind. Law - Indiana's RFRA and the perception of intolerance
The ILB has received questions about how the new RFRA would work in practice. The ILB has asked several respected attorneys the same questions. The answer: No one is really willing, or able, to give a conclusive answer. It all depends on whether there are challenges to, or under, the new law, how those challenges manifest themselves, and what the Indiana courts decide.
Meanwhile, the very act of passing the law has labeled Indiana nationally as intolerant. A quote from a Bloomington Herald-Times story today:
It does not help that our Governor, who announced earlier this week that he was eager to sign the bill into law, held the signing ceremony in private and won't reveal who attended. [Here is a photo.] As the Indianapolis Star reports:
Bloomington Mayor Mark Kruzan on Thursday afternoon chided the state for passing the bill, while also praising the city’s reputation for diversity.
“For those who know Bloomington to be the welcoming community it is, we will be fine,” Kruzan wrote in an email. “But businesses, investors and visitors not familiar with our progressiveness may well paint Indiana with a broad brush to our detriment. I share Indianapolis Mayor (Greg) Ballard’s concern that state government is sending the exact wrong message to the rest of the country.”
Jeb Conrad, president and CEO of the Greater Bloomington Chamber of Commerce, said he’s heard similar concerns from the local firms he represents.
“Anecdotal discussions with our members indicate they’ve been very frustrated with how Indiana looks as a state,” Conrad said. “We hope it doesn’t have the unintended consequences of a change in business procedure. ... It’s not making Indiana look very favorable with respect to the future. It’s sad and frustrating.”
His office [did release a photo, but] then declined to identify those in the photo.Terrence McCoy of the Washington Post has a long story today headed "How Hobby Lobby paved the way for Indiana’s ‘religious freedom’ bill." A quote:
The photo includes Pence sitting at his desk, surrounded by 18 others. The legislation’s primary sponsors – Sen. Scott Schneider, Sen. Dennis Kruse, and Rep. Tim Wesco – are pictured. So, too are several Franciscan monks, nuns, and orthodox Jews. One of the monks appears to be Fr. David Mary Engo of the Franciscan Brothers Minor in New Haven. He testified in favor of the bill during legislative hearings.
But according to people who attended, there were dozens of others present as well, perhaps as many as 80 total.
Another photograph, posted on Twitter by the American Family Association of Indiana’s Micah Clark, shows Pence at his desk surrounded by a different group. They include the state’s three most prominent lobbyists on conservative social issues: Clark, the Indiana Family Institute’s Curt Smith, and Advance America’s Eric Miller.
Those three, with their connections to a vast network of conservative churches, led a failed effort last year to ban same-sex marriage in Indiana’s constitution. The governor has tried to distance the religious freedom legislation from that issue.
[The bill] shows once again that the impact of Supreme Court rulings can go well beyond the legal confines of a particular decision and reverberate politically — and that even when a ruling is narrowly framed, the uses made of it can be quite broad.See also Sheila Kennedy's column in Indiana Forefront, which begins:
“Our decision in these cases is concerned solely with the contraceptive mandate,” Justice Samuel A. Alito Jr. wrote in the Hobby Lobby case. Yet it fueled support for a measure involving sexual orientation in Indiana and elsewhere.
Indiana State Sen. Scott Schneider (R), who introduced the religious freedom bill at the end of last year, cited the Hobby Lobby ruling as inspiration. “In reviewing that court ruling, it became clear that Indiana’s laws were not reflective of federal law,” he said in a statement in December. “This bill, which I plan to author this session, would match federal law.”
That was exactly what concerned Ginsburg. When you endow for-profit organizations with the same religious rights as an individual, it’s done regardless of the “impact that accommodation may have on third parties who do not share the corporation owner’s religious faith.” And for some, it doesn’t take a lot of imagination to conjure up the resulting possibilities.
Hoosiers who want to discriminate against their LGBT neighbors can already do so with impunity–Indiana’s civil rights laws do not protect gay citizens. Same-sex marriages may be legal in Indiana, but gay Hoosiers can still be denied services, refused employment and/or fired just for being gay. So to the extent that SB 101 is intended to protect those who discriminate against gays, it’s totally unnecessary. Unless, of course, our lawmakers want to “send a message.”Finally, for those who want to read SEA 101 for themselves, here is the Enrolled Act. You can also read it via the IndyStar.
Ind. Decisions - Court of Appeals issues 1 opinion(s) today (and 6 NFP memorandum decisions)
For publication opinions today (1):
In Jimmy Wallen, Jr. v. State of Indiana, a 3-0 opinion, Judge Riley writes:
Appellant-Defendant, Jimmy Wallen, Jr. (Wallen), appeals his conviction of theft, a Class D felony, Ind. Code § 35-43-4-2 (2013). We affirm.NFP civil decisions today (2):
Wallen raises one issue on appeal, which we restate as follows: Whether the trial court abused its discretion by giving an improper jury instruction. * * *
Based on the foregoing, we conclude that the trial court abused its discretion in tendering the jury instruction; however, such error was harmless in light of the evidence of Wallen’s guilt.
Vaidik, C. J. concurs
Baker, J. concurs in result with separate opinion [that concludes] I believe that the jury instruction in this case is appropriate and accurate, and part ways with the majority’s conclusion that it was erroneous. I agree with the result reached by the majority, however, and would likewise affirm Wallen’s conviction.
NFP criminal decisions today (4):
Thursday, March 26, 2015
Ind. Decisions - Supreme Court, 3-2, vacates transfer grant and reinstates 2-1 COA decision
Accordingly, the order granting transfer is VACATED, and transfer is hereby DENIED. The decision of the Court of Appeals, published as Dixon v. State, 14 N.E.3d 59 (Ind. Ct. App. 2014), is hereby REINSTATED as Court of Appeals authority. * * *
Rush, C.J., and Dickson and Rucker JJ., concur.
David and Massa, JJ., dissent from the denial of transfer and would adopt the Court of Appeals’ dissenting opinion.
Ind. Gov't. - "Purdue sued over Amazon textbook deal"
Steven Porter and Joseph Paul report today in the Lafayette Journal & Courier in a story that begins:
An Ohio-based association of campus retail stores wants more detail about a business deal struck last year between Purdue University and online retail powerhouse Amazon, which opened its first brick-and-mortar store earlier this semester on the West Lafayette campus.The story links to an earlier, Nov. 24, 2014 opinion of the Indiana Public Access Counselor that includes:
Located in Krach Leadership Center, Amazon's on-campus store serves as a pickup and drop-off spot for textbooks and other merchandise students order online.
Purdue President Mitch Daniels announced during a ribbon-cutting ceremony in February that preliminary numbers suggest students have saved more than 40 percent through the partnership.
The National Association of College Stores Inc. — a nonprofit trade organization representing more than 3,000 campus retail stores worldwide — requested and obtained a copy of the agreement university officials signed with Amazon, but multiple pages in the document had been redacted.
The university, which is a public agency, asserted that the materials were redacted because they constitute trade secrets under Indiana's public records law.
The association, however, disagrees, claiming in a lawsuit filed Tuesday in Tippecanoe Superior Court 2 that the redacted materials constitute public records that the university must release upon request.
Purdue has not withheld the entire document in this case and rightfully so. Public-private contracts should be scrutinized in the light of day. However, given that contracts may contain confidential information, Indiana law allows for redaction. It may possibly be the University’s determination the information they deem as a trade secret is erroneous, but this Office cannot decide that particular issue based on the information provided.More from today's story:
Steve Schultz, who serves as legal counsel for the university, responded to questions from the Journal & Courier in writing, citing Britt's opinion.
"We have not yet seen the complaint and, in general, do not comment on pending litigation," he wrote. "That being said, our contract with Amazon explicitly states that the contract contains information Amazon considers to be trade secret."
It would be a violation of state law for the university to divulge such secrets, Schultz added.
Schneider said he was surprised that Britt's opinion was based on a review of the redacted agreement, rather than a complete copy.
Ind. Gov't. - "Pence signs Religious Freedom Restoration Act" [Updated]
Here is Niki Kelly's report today in the Fort Wayne Journal Gazette and this quote goes to the crux of the matter:
Sen. Dennis Kruse, R-Auburn, says he authored the measure in reaction to the federal Hobby Lobby case where the U.S. Supreme Court ruled a religious company couldn't be forced to provide birth control.[Update] ILB: Here is Senate Enrolled Act 101, effective July 1. Notice that Sec. 2 states [ILB emphasis]:
But it also follows a long battle on same-sex marriage equality in Indiana, and many consider the bill to be a consolation prize of sorts to religious conservatives.
Opponents are concerned it legalizes discrimination against gays and lesbians - especially allowing businesses to refuse service based on sexual orientation.
Indiana has no state no civil rights protections for sexual orientation so this type of discrimination can happen legally today.
But 12 cities have local human rights ordinances that do protect gays and lesbians. The question is whether those ordinances are superseded by a person or business' religious beliefs.
A governmental entity statute, ordinance, resolution,executive or administrative order, regulation, custom, or usage may not be construed to be exempt from the application of this chapter unless a state statute expressly exempts the statute, ordinance, resolution, executive or administrative order, regulation, custom, or usage from the application of this chapter by citation to this chapter.
Ind. Decisions - Court of Appeals issues 2 opinion(s) today (and 8 NFP memorandum decisions)
For publication opinions today (2):
In LBLHA, LLC, Margaret L. West, and Don H. Gunderson v. Town of Long Beach, Indiana, Alliance for the Great Lakes and Save the Dunes, Long Beach Community Alliance, Patrick Cannon, et al., a 30-page opinion, Judge Brown writes:
LBLHA, LLC, Margaret L. West, and Don H. Gunderson (collectively, the “Lakefront Owners”) appeal orders of the trial court dismissing all counts of their complaint against the Town of Long Beach, Indiana (the “Town”) and other intervenor defendants, raising several issues. We find dispositive at this stage in the proceedings whether the State of Indiana or appropriate State officials as individuals in their official capacity should have been added or joined as a party or parties to the proceedings prior to the rulings on the Lakefront Owners’ claims. We reverse and remand. * * *ILB: The above case on Lake Michigan shorefront property rights is one which the ILB has been following since its inception. See this list of posts.
In sum, we conclude the State of Indiana or appropriate State officials as individuals in their official capacity should have been added or joined as a party or parties to the proceedings prior to the rulings on the parties’ respective summary judgment motions and, accordingly, we reverse the court’s entry of summary judgment with respect to Counts I through IV of the Lakefront Owners’ complaint. We also find the court was without authority to enter an order as to Count V on April 24, 2014. After the State of Indiana is given the opportunity to present its position with respect to its ownership interest or the interest of the public in or to the disputed beach area, the trial court may rule on the parties’ summary judgment motions or proceed to trial with respect to one or more of the Lakefront Owners’ claims. We express no opinion regarding the allegations under any of the counts of the Lakefront Owners’ complaint or arguments set forth in the parties’ summary judgment materials or on appeal by the parties or amici curiae with respect to the Lakefront Owners’ claims.
Conclusion. For the foregoing reasons, we reverse the court’s December 26, 2013 order entering summary judgment with respect to Counts I through IV of the Lakefront Owners’ complaint, reverse the court’s April 24, 2014 order with respect to Count V, and remand to allow the addition of the State of Indiana or appropriate State officials as individuals in their official capacity as a party or parties, and for further proceedings consistent with this opinion.
In Marvin Crussel v. State of Indiana , a 12-page opinion, Judge Pyle writes:
Marvin Crussel (“Crussel”) appeals, following a bench trial, his conviction for Class B misdemeanor reckless driving.1 Crussel concedes that he drove at an unreasonably high rate of speed but argues that we should reverse his conviction because the evidence presented was insufficient to show endangerment. Concluding that the trial court, acting as factfinder, could have reasonably inferred that Crussel’s act of driving ninety-one miles per hour in a fifty-five mile-per-hour zone at around 10:30 p.m. in the dark of night on a portion of a country road that had houses and cross streets endangered the safety and property of others, we affirm his conviction. * * *NFP civil decisions today (2):
Crussel’s argument—which in essence challenges the significance applied to the evidence of the circumstances surrounding his act of recklessly driving at an unreasonably high rate of speed—is nothing more than an invitation to reweigh the evidence, which we will not do.
NFP criminal decisions today (6):
Ind. Decisions - On rehearing, Supreme Court strikes "first clause of footnote 3"
In First American Title Insurance Company v. Stephen W. Robertson, Insurance Commissioner of the State of Ind., in his Official Capacity, on Behalf of the Ind. Dept. of Insurance, a 2-page, 5-0 opinion on rehearing, Justice Rucker writes:
The Commissioner of the Indiana Department of Insurance (“Commissioner”) seeks rehearing of this Court’s opinion in which we determined a petitioner seeking judicial review of an agency decision must file the agency record as defined by the Administrative Orders and Procedures Act and that the failure to do so results in dismissal of the petition. See American Title Ins. Co. v. Robertson, 19 N.E.3d 757 (Ind. 2014). * * *ILB: See the Nov. 13, 2014 opinion.
In his Petition for Rehearing, the Commissioner takes issue with the first clause of the footnote contending, “the Court’s judgment reversing the trial court for failing to dismiss the First American petition for judicial review appears inconsistent with its summary affirmance of the Court of Appeals concerning the timeliness of the Commissioner’s hearing order and First American’s failure to exhaust administrative remedies.” Pet. for Reh’g at 1. According to the Commissioner, “there is substantial tension, if not outright conflict, among these statements.” Id. at 3. We agree and therefore grant rehearing to delete the first clause of footnote three. In all other respects the original opinion is affirmed.
Law - "Legislation to Curb Civil Forfeiture Advances in States ;" Indiana update
From the WSJ Law Blog, a short article by Jacob Gershman. Some quotes:
Georgia lawmakers are set to vote on legislation intended to rein in the state’s civil forfeiture procedures, part of a national push for more scrutiny and limits on asset-seizure programs that law enforcement officials say help curb drug crimes but critics say are prone to abuse.ILB: Senator Hershman has a limited bill, SB 388, now in House Judiciary, that would require:
The Republican-led Senate in Georgia could vote on HB 233 as early as Thursday, officials said. It passed the House unanimously earlier this month. Republican Gov. Nathan Deal has said the state should consider revising its forfeiture laws. A spokeswoman for his office said the governor doesn’t comment on pending legislation.
The bill would require that annual standardized reports on agency forfeitures be posted online; require that district attorneys use the money they seize for “official prosecutorial purposes,” and subject law enforcement to more rigorous auditing, according to a Atlanta Journal-Constitution report.
More sweeping legislation curbing civil forfeiture also just passed the New Mexico Legislature and awaits the governor’s signature. That measure would give more rights to innocent owners, require that forfeiture hearings take place only following convictions, and mandate that seized proceeds be deposited into a state general fund rather than prosecutor-controlled accounts.
Critics of civil forfeiture laws say the power to seize assets from people never charged with a crime encourages law enforcement agencies to “police for profit” and lacks safeguards to protect the innocent.
Reporting of property forfeiture. Requires the Indiana prosecuting attorneys council to make an annual report to the legislative council concerning civil forfeitures conducted in Indiana, and requires the state police department to annually report to the legislative council the amount of money it has received from the federal government as the result of a forfeiture conducted by the federal government.For more, see this Feb. 22nd ILB post as a starting point. In addition, our Supreme Court, on March 24th, in Sargent v. State, reversed a civil forfeiture on a 3-2 vote.
Ind. Gov't. - "Scott County sheriff fears losing a generation to drugs, HIV" [Updated]
A powerful story from Maureen Hayden, CNHI, in the Rushville Republican (here via Ind. Econ. Digest). Some quotes:
INDIANAPOLIS - After 13 years in the military - most of them with a special operations team that pursued terrorist targets around the world - Dan McClain was ready to come home to rural Scott County and raise his family.[Updated] See also this long story in the March 25th Chicago Tribune.
He soon discovered, he said, “It’s not what it used to be.”
Now the county sheriff, McClain finds himself amid the largest single HIV outbreak in the state’s history. A growing number of inmates in his jail are diagnosed with HIV, the virus that causes AIDS.
Every one of 55 newly confirmed cases of HIV in Scott County - more are pending confirmation - is linked to intravenous drug users who shared needles while injecting a highly addictive painkiller called Opana.
The cause of the scourge is well known to those who live in Scott County, as health officials scramble to control the crisis.
But just last week, McClain and his deputies came upon a flophouse where a group of addicts was shooting drugs into their veins.
“Everybody knew of the risk,” he said, “but that’s the nature of addiction - that they just don’t care.” * * *
Why Scott County has become the epicenter of a growing health crisis is something that McClain and other local leaders are trying to figure out.
Their community is poorer and less educated, with fewer work opportunities, than most of the state. It has ranked 92nd among Indiana’s 92 counties on the state Health Index for six years, put at the bottom of the list by childhood poverty, lack of healthcare access and other factors.
“We’re like many rural communities in Indiana. You drive through our small towns and see a lot empty storefronts,” McClain said. “Too many people here just feel hopeless.” * * *
The drugs aren’t new. About a decade ago, law enforcement in Scott County and throughout Indiana saw growing abuse of the prescription painkillers hydrocodone and oxycodone. As manufacturers changed those drugs to make them harder to inject, addicts just turned to other opiates.
The surge in drug use lead to a surge in crime. McClain’s jail is so crowded with addicts that he’s farmed out prisoners to neighboring county jails.
Now he faces a public health crisis, as well.
An immediate worry for McClain is how to pay the medical costs of the newly infected, HIV-positive inmates. He had 10 confirmed cases last week, with more expected. And those are just the ones he could convince to get tested. Others are likely infected but refuse the test.
McClain worries not just about them but their families. Most HIV cases involve people in their 20s and 30s. Many have children. Two cases involve pregnant women.
“I worry about the lost generation,” he said. “A lot of people we’ve arrested have kids who are now being raised by their grandparents. We’re going to have whole generation of children who don’t know what it means to be raised by their parents.”
[Updated at 10:17, 3/16/15] Some new tweets from reporter Hayden:
- Gov Pence authorizes emergency needle exchange program for Scott County where HIV confirmed cases now up to 79 with more expected.
- Gov's emergency order also orders state health dept to up mobile site to sign up residents in high-poverty Scott Co for Medicaid HIP.
- Pence calls HIV outbreak in Scott Co an "Indiana problem" but health officials say he opposes expanding needle exchange elsewhere
Courts - "Negative Yelp, Angie’s List reviews prompt dog obedience business to sue"
Interesting story yesterday by Justin Jouvenal of the Washington Post; a quote:
Lawsuits over negative reviews have risen in recent years with the popularity of sites such as Yelp, Angie’s List and TripAdvisor that allow users to rate and provide feedback on businesses. The reviews have become an increasingly important factor for companies, generating new customers — or sending them fleeing.
In 2012, a D.C.-based contractor sued a Fairfax woman for $750,000 over her one-star takedown of his work on her home. And the Virginia Supreme Court is expected to decide soon whether Yelp will be required to turn over the names of anonymous users who disparaged Alexandria’s Hadeed Carpet Cleaners. First Amendment advocates are watching that case closely.
Courts - Is this case "Better Call Saul" in real life?
On March 24th the NY Times Science Section had a story by George Johnson titled "When Science Is Lost in a Legal Maze." It began:
In a saner world, where science and the law meshed more precisely, a case like Firstenberg v. Monribot would have been dead on arrival in court. But that is not what happened.Later in the story:
Earlier this month, five years after the lawsuit was filed, the New Mexico Court of Appeals upheld a lower court’s ruling that Arthur Firstenberg, an outspoken opponent of wireless technology, could not seek $1.43 million in damages from his neighbor, Raphaela Monribot, for damaging his health by using her iPhone and a Wi-Fi connection.
A self-described sufferer of a medically unrecognized condition called electromagnetic hypersensitivity, he was already known in Santa Fe for his unsuccessful effort to block the installation of Wi-Fi in the city library and other public places.If you haven't been watching Better Call Saul, it is the prequel to Breaking Bad, telling the early story of the young lawyer Jimmy who later becomes "Saul." It is a great show, do watch it in order.
When I heard that Mr. Firstenberg, who lives a couple of miles from me, was filing a tort claim seeking damages for what amounted to electromagnetic trespassing, I assumed the case would be quickly dismissed. Instead, in 2010, it entered the maze of hamster tubes that make up the judicial system.
Wednesday, March 25, 2015
Ind. Decisions - Supreme Court decides one today
In Dustin E. McCowan v. State of Indiana, an 11-page, 5-0 opinion, Justice Massa writes:
Among the most fundamental precepts of American criminal justice is that the accused is presumed innocent until proven guilty beyond a reasonable doubt. Today we examine our holding in Robey v. State, 454 N.E.2d 1221 (Ind. 1983), and state unequivocally and prospectively that it is the absolute right of every criminal defendant to receive the following jury instruction upon request: “The presumption of innocence continues in favor of the defendant throughout the trial. You should fit the evidence to the presumption that the defendant is innocent if you can reasonably do so.” In this case, however, the jury instructions adequately encompassed these principles, which was the minimum required by prior precedent, and thus the trial court’s failure to use this precise language was not error. * * *
Two passages of our ruling in Robey have proven to be in conflict. The first mandated the trial court include, upon request, a jury instruction as to the presumption of the accused’s innocence continuing throughout the trial, and that the jury should fit the evidence to a theory of innocence if it was reasonable to do so. The second then undid this seemingly bright line rule, in favor of a flexible standard requiring that the jury instructions as a whole must discuss the same principles. Today we resolve that conflict in favor of the rule. We do not believe, however, that the trial court in this matter committed an abuse of discretion in providing jury instructions which satisfied the flexible standard of Robey, given the previous ambiguity in the law. In all other respects, we summarily affirm the holding of our Court of Appeals below, pursuant to Indiana Appellate Rule 58(A)(2).
Ind. Gov't. - Open house scheduled for Dunes pavilion project
Updating a number of earlier ILB posts on the Indiana Dunes Pavilion projects, here are some quotes from today's IDNR news release:
The Department of Natural Resources has scheduled an open house on April 6 to introduce plans for adaptive reuse of the pavilion at Indiana Dunes State Park.The news release links to a quite informative and responsive 5-page FAQ on the project, access it here.
The open house will be from 5-6:30 p.m. (CDT) at the Indiana Dunes Visitor Center, 1215 N. State Road 49, Porter, IN, 46304. The center is north of the Indiana Toll Road and Interstate 94, and south of Indiana Dunes State Park and U.S. 20.
DNR staff will be available to provide an overview of the pavilion’s history and answer questions related to the process used for selecting Pavilion Partners, LLC, to design the project and operate it through a public/private partnership.
“We have waited a long time to find the right partner to restore this iconic building to its original glory,” said Dan Bortner, director of the DNR Division of State Parks. “We look forward to seeing the Indiana Dunes State Park Pavilion alive with people – not just in summer but year- round.”
Pavilion Partners, LLC, will be on hand with information and timelines related to the project. This will include designs for a new concession area, a pavilion rooftop restaurant, new restrooms with showers and family dressing rooms for beachgoers, and a conference/banquet center.
The open house will provide an opportunity to talk one-on-one with DNR staff and Pavilion Partners and ask questions or offer suggestions.
The ILB hopes shortly to post links to the Pavilion Partners LLC lease with IDNR, plus the prospectus and proposal. [Updated: Here it is now, a 95-page pdf document, so somewhat slow loading.]
Additionally, according to the release, renderings/drawings of the planned convention center will be available at the open house scheduled for April 6.
Ind. Decisions - Court of Appeals issues 6 opinion(s) today (and 11 NFP memorandum decisions)
For publication opinions today (6):
In Norris Avenue Professional Building Partnership v. Coordinated Health, LLC, a 16-page opinion, Judge Najam writes:
Norris Avenue Professional Building Partnership (“Norris”) appeals the trial court’s judgment for Coordinated Health, LLC (“Coordinated Health”) on Norris’ complaint for breach of a lease agreement. Norris raises a single issue for our review, namely, whether the trial court erred when it concluded that Coordinated Health did not breach the lease agreement. We reverse and remand with instructions.In In the Matter of the Termination of the Parent-Child Relationship of J.W., Jr., A.W., and D.D., Minor Children, T.D., Mother, and J.W., Sr., Father v. Ind. Dept. of Child Services, an 11-page opinion, Judge Najam writes:
T.D. (“Mother”), and J.W., Sr. (“Father”) (collectively, “the Parents”) appeal the trial court’s termination of their parental rights over J.W., Jr., Z.W., and D.D. (“the Children”). The Parents raise a single issue for our review: whether the statutory waiting period under Indiana Code Section 31-35-2-4(b)(2)(A)(iii) is tolled during any period in which the Indiana Department of Child Services (“DCS”) fails to provide or otherwise make services available to a parent prior to seeking the termination of that parent’s parental rights. On this question of first impression, we hold that Indiana Code Section 31-35-2-4(b)(2)(A)(iii) simply requires the DCS to demonstrate compliance with the statutory waiting period—namely, that a child has been removed from a parent for fifteen of the most recent twenty-two months immediately prior to the termination hearing. That statute does not condition the waiting period on whether the DCS provided or otherwise made available any type of services to the parent. As such, we affirm the trial court’s termination of the Parents’ parental rights.In April Goodwin, Tiffany Randolph, and Javon Washington v. Yeakle's Sports Bar and Grill, Inc., a 13-page opinion, Judge Najam writes:
This case presents yet another opportunity for Indiana’s appellate courts to clarify the Indiana test for determining whether a duty exists in a negligence action, an issue that has created confusion at every level of our judiciary. There are two tests in Indiana. First, if a duty is well-established in our case law, and the case before the court is substantially similar to that case law, then that duty applies. If, on the other hand, the case before the court presents facts and circumstances that have not been addressed in prior decisions of Indiana’s appellate courts, then in determining whether a duty exists, we must balance the three factors articulated in Webb v. Jarvis, 575 N.E.2d 992, 995 (Ind. 1991), including the reasonable foreseeability of harm to the person injured. * * *In The Peoples State Bank v. Benton Township of Monroe County, Indiana, a 20-page opinion, Judge Bailey writes:
Here, the Bar’s sole contention in its summary judgment motion was that it did not owe a duty to protect the Appellants from Carter’s criminal acts because they were not reasonably foreseeable. But, as our supreme court has held, reasonable foreseeability does not determine duty where, as here, the duty is well-established. See Yost, 3 N.E.3d at 515; Bartolini, 799 N.E.2d at 1053; Sharp, 790 N.E.2d at 465. The Bar owed the Appellants a duty to protect them from the foreseeable criminal acts of third parties. As such, the Bar cannot satisfy its burden to affirmatively negate the duty element of the Appellants’ negligence claims. See Hughley, 15 N.E.3d at 1003. Thus, the trial court erred when it entered summary judgment in favor of the Bar, and we reverse and remand for further proceedings.
The Peoples State Bank (“the Bank”) appeals the denial of its motion to correct error, which challenged a grant of summary judgment in favor of Benton Township of Monroe County, Indiana (“Benton Township”) upon the Bank’s collection complaint. The Bank presents a single, consolidated issue for review: whether summary judgment was improvidently granted to Benton Township as opposed to the Bank, upon the trial court’s conclusion that a loan transaction was void. We affirm. * * *In Larry Bell v. State of Indiana, an 11-page opinion, Judge Mathias concludes:
The purported contract executed by a township employee in contravention of statutory requirements is invalid. The Bank may not pursue additional equitable remedies against Benton Township, beyond the partial settlement agreement. Accordingly, the trial court properly granted summary judgment to Benton Township as opposed to the Bank.
The trial court did not abuse its discretion by admitting into evidence Bell’s outof-In Chelsea Taylor v. State of Indiana, a 12-page opinion, Judge Bailey writes:
court statement that he was able to “read” people. This statement was not
hearsay because it was the statement of a party opponent, namely Bell himself.
It was relevant and not unfairly prejudicial. Nor was Bell’s statement
inadmissible character evidence. Lastly, even if we agreed with Bell that the
statement was inadmissible, any error in the admission of the statement would
have been harmless given the evidence regarding C.M.’s inability to be aware
that Bell was engaging in sexual intercourse with her. Affirmed.
Chelsea Taylor (“Taylor”) appeals her conviction for Neglect of a Dependent, as a Class A felony. Taylor presents three issues for review, one of which is a challenge to the sufficiency of the evidence. Concluding that the State did not present sufficient evidence of probative value, we reverse. * * *NFP civil decisions today (5):
The inference-stacking without establishment of a predicate fact, which the prosecution invited and the State deems sufficient to withstand appeal, is not constitutionally adequate. The State failed to adduce sufficient proof to support Taylor’s conviction for Neglect of a Dependent.
NFP criminal decisions today (6):
Environment - More on wind turbines and Indiana bats
The ILB has had a number of posts on this topic, here are some of them.
Today JD Supra has an article by Rafe Petersen of Holland & Knight LLP, titled "Court Upholds Endangered Species Act Incidental Take Permit for Windfarm," that begins:
On March 17, 2015, Judge Leon of the United States District Court for the District of Columbia issued a memorandum opinion upholding the United States Fish and Wildlife Service's (USFWS) issuance of an incidental take permit for the killing of endangered Indiana bats at the Buckeye Wind Power Project in Ohio. The plaintiffs, Union Neighbors United, a non-profit corporation that was formed to address issues relating to the siting of industrial wind turbines, challenged the USFWS finding that the permit will, to the maximum extent practicable, minimize and mitigate the impacts on the bats.
The Indiana Bat was placed on the Endangered Species Act (ESA) list of "endangered" species in 1967 due to large decreases in population size and an apparent lack of winter habitat. It is currently facing additional threats related to "white nose syndrome", which is disease of hibernating bats that has been associated with steep population declines.
Ind. Decisions - "Supreme Court Rules Indiana Schools Not Required to have Free Bus Service"
That is the headline to this brief story in the TriState Homepage:
A huge shift could be coming to how our Indiana kids get to school. In fact, some school districts might scrap bus service altogether.The Indianapolis Star has a longer story here.
In a unanimous ruling, the Indiana supreme Court overturns a lower court's decision that claimed charging bus fees was unconstitutional. Therefore, it states districts are not required to provide free bus service to all students.
The high court says "the framers did not intend for every aspect of public education to be free."
Some cash strapped districts around the state have suggested the possibility of ending bus service as a way to close large budget deficits.
The Supreme Court opinion, issued yesterday, is Lora Hoagland, On Behalf of Herself and All Others Similarly Situated v. Franklin Township Community School Corp.
Ind. Courts - More on "Dyer dentist seeking more than $15 million in lawsuit against state"
The ILB has updated its March 23rd post with a copy of the 12-page, 12/31/14 opinion by Judge McCarty in Atcha v. Ind. Prof. Lic. Agency, that concluded:
For all the foregoing reasons, the Final Order of the Indiana State Board of Dentistry in the administrative proceedings entitled In the Matter of the License of Irfan A. Atcha, DDS, Cause Number 2012 ISDS 0005 is hereby REVERSED and set aside as contrary to a constitutional right and privilege pursuant to Ind. Code § 4-21.5-5-14(d).
Ind. Decisions - "Supreme Court: Ball State can detain transcripts"
That is the headline to a story yesterday in the Muncie Star-Press, reported by Seth Slabaugh. Some quotes some the long story:
MUNCIE – The Indiana Supreme Court has ruled that Ball State University does not have to turn over the official college transcript of a student who left the school with an unpaid tuition balance exceeding $9,000.ILB: Here is the March 18th opinion in Ball State University v. Jennifer Irons; In Re the Marriage of: Jennifer Irons and Scott Irons.
“We asked the court to take a look at the ... question of whether or not colleges and universities have a common law lien over the transcript of a student who fails to pay ... loans, tuition or fees, and the court agreed that in fact there is a common law lien,” BSU attorney Jim Williams told The Star Press on Monday. “This is an important part of the toolbox any college or university in Indiana uses to collect outstanding debt.” * * *
The University of Indianapolis and Butler, Indiana Wesleyan and Taylor universities became “friends of the court” who joined Ball State in pressing its position.
The Supreme Court also ruled that Ball State could not be “dragged ... by the heels” into divorce court as a party to a dispute between a mother and a father over their child’s higher education expenses. Such disputes are becoming more common. * * *
Williams has compared a common law lien to a mechanic’s lien. “The mechanic has a lien on the car until the bill is paid,” he told The Star Press last year. “Technically, the mechanic can withhold the car until the bill is paid.”
The Supreme Court unanimously ordered the trial court to dismiss Ball State from the divorce action. Ball State’s appeal of the trial court’s decision had been dismissed earlier by the Indiana Court of Appeals, after which BSU appealed to the Supreme Court.
Michael Reilly, director of the American Association of Collegiate Registrars and Admissions Officers, told The Star Press it is very common for schools to place holds on transcripts.
“It really is one of the most significant incentives for students to pay their debt,” Reilly said.
Noting that Irons was unable to enroll at IU Northwest without her Ball State transcript, Reilly said, “The receiving side is requiring it, too, so it happens on both ends. One reason the receiving schools needs the transcript is to verify that a student has left the other school in good standing, he said.
Tuesday, March 24, 2015
Ind. Gov't. - "Indiana religious freedom act: Does it protect faithful or legalize prejudice?"
Harry Bruinius has this story today in The Christian Science Monitor. A quote:
Over a decade ago, many liberal states, including Connecticut, Illinois, and Rhode Island, passed their own versions of the 22-year-old federal Religious Freedom Restoration Act. Overall, at least 19 states have passed similar bills, since the federal law does not apply to the states, the US Supreme Court ruled in 1997.
But since last year, the Supreme Court’s Hobby Lobby decision has changed the bipartisan tenor of the law. The nation’s highest court used the federal religious freedom statute to rule that closely held corporations with religious objections to contraceptives were exempt from the Obamacare provision requiring their coverage. Since then, conservatives have seen state religious freedom laws as a means to combat the expanding definition of marriage, as well as other hot-button social issues.
“If we truly are doing things unto the Lord, our business can be ... a church or sanctuary,” argued Indiana Republican Rep. Bruce Borders on the House floor Monday, bringing up the question of the anesthesiologist. “People deserve protection in their businesses as well, not just on Sunday morning.”
Ind. Gov't. - Still more on: Changes to limit public access to records law buried within massive "Education deregulation" package
INDIANAPOLIS - Lawmakers say a provision that would allow government entities to charge a searching fee for records requests that take longer than two hours to fulfill will be removed from a proposal.Good news! As the ILB wrote earlier:
House Education Committee members heard testimony Tuesday about a bill that aims to aims to simplify school management by cutting obsolete and duplicate rules in education.
The current version would also change how public records are handled by all types of Indiana agencies, not just schools, sparking mixed reviews from open-records advocates.
Bill sponsor Rep. Tony Cook, a Cicero Republican, says he plans to remove the $20 search fee and all other changes to the Public Record Act in a future amendment.
The language changing the public records law has been in the bill since introduction, a bill which the synopsis labels "Education deregulation." The changes to the public records law, however, would apply across-the-board, and this inclusion in a law otherwise dealing with education might be called log-rolling by some.
Ind. Courts - Complying with the revisions to Administrative Rule 9 - Q & A #7
[The ILB has created a new category, "Adm. Rule 9 Questions," which will give you direct access to all the Q&A on this topic.]
Responses are from Maggie Smith, Frost Brown Todd LLC, who serves on the Court's Committee on Rules of Practice and Procedure.
Q1: Are medical records entitled to be filed on green paper as a matter of right?
Q1 SHORT ANSWER: Mostly no. Certain types of medical records are declared confidential by statute, which would allow exclusion under A.R. 9(G)(2)(b) as a matter of right. But the vast majority of medical records are not deemed confidential by any state statute and, therefore, the only way to exclude them would be via the four-part process in AR 9(G)(4). (See effect of HIPAA below.)
Q1 LONG ANSWER: The statute many attempt to use to support a broad-based assertion of confidentiality for medical records is Ind. Code §5-14-3-4(a)—part of the Access to Public Records Act—which provides, “The following public records … may not be disclosed by a public agency, unless access to the records is specifically required by a state or federal statute or is ordered by a court under the rules of discovery … (9) Patient medical records and charts created by a provider ….”
BUT … 5-14-3-4(a)(9) says only that “the following public records … may not be disclosed by a public agency.” So this statute does not broadly declare that all medical records are confidential. Instead, it presumes that medical records are “public records” and only prevents a “public agency” from disclosing them, and even then allows them to be disclosed when “ordered by a court under the rules of discovery.” Therefore, 5-14-3-4(a)(9) is not a statute declaring medical records to be confidential in litigation between private parties and a litigant would need some other statute declaring medical or health records to be confidential in order to invoke 9(G)(2)(b).
The following is a sampling of Indiana statutes that do declare certain types of medical records confidential or identify certain circumstances where medical records will be confidential:
- “mental health record” (16-39-2-3, 16-39-3-10)
NOTE: “Mental health records” means “recorded or unrecorded information concerning the diagnosis, treatment, or prognosis of a patient receiving mental health services or developmental disability training. The term does not include alcohol and drug abuse records.” §16-18-2-226. The Code does not define what constitutes “mental health services.” Other statutory references suggest “mental health services” include anything related to a mental illness, but the term “mental illness” is not defined in the statutes, either. So it will likely come down to how the physician/medical community characterizes the condition at issue.
- medical records from an autopsy (16-39-7.1-2)
- medical records provided to “hospital medical staff committees” for “research purposes,” “gathering statistics and other information concerning the prevention and treatment of diseases, illnesses, and injuries” and “reducing morbidity or mortality” (16-39-6-1, 16-39-6-3)
- “health records obtained [by a coroner]” (36-2-14-21);
- medical records “generated to prove that an individual is qualified for” “impairment” or “disability benefits” (33-39-7-17; 33-38-8-15; 33-38-7-12; 2-3.5-4-5; 36-8-6-13; 5-10.4-5-2; 36-8-7-16; 36-8-8-12.7; 36-8-7.5-13)
- medical record “that is confidential under 42 U.S.C. 290dd-3, 42 U.S.C. 290ee-3, or the regulations adopted under those statutes.” [these statutes have now been “omitted” but used to deal with mental health and substance abuse records] (34-43-1-10)
- medical records of a “communicable disease or other disease that is a danger to health” (16-41-8-1; 34-43-1-12)
- medical records made in connection with volunteer firefighting injuries (4-15-10-7; 36-8-12-10.5; 36-8-12-10.7)
- medical records from employer-mandated medical examinations of employees as a precondition to employment (22-9-5-20)
- medical records from baseline statewide physical examination for police and firefighters (36-8-8-19)
- when a hospital responds to a subpoena for the production of its medical records, the certified copies of “hospital medical records” must be placed in an envelope with the words “Confidential Medical Records” written on the envelope (34-43-1-8).
If someone knows of such a statute, please let us know so we can pass it along to the readers.
In summary, if one of the above statutes declares the specific type of medical record confidential, then exclusion is automatic under A.R. 9(G)(2)(b) and all a party need to do is file the AR 9(G)(5) Notice on white paper citing the statute, and then file the medical records on green paper.
But for the majority of medical records that are filed in Indiana courts, the only way to exclude them from public access and file on green paper would be via the four-part process in AR 9(G)(4).
Q2: What role does HIPAA play as far as confidentiality in state court judicial proceedings?
Q2 SHORT ANSWER: HIPAA protects privacy interests in Protected Health Information, but does not declare all medical records confidential in all situations so the answer is, “it depends.”
Q2 LONG ANSWER: In most court proceedings, it is unlikely that HIPAA will provide the grounds for green paper filings.
In most cases, the medical records will have been obtained by a valid, signed release from the patient. In this circumstance, HIPPA does not prohibit anything regarding future disclosure. Thus, the only way to exclude them from public access and file on green paper would be via the four-part process in AR 9(G)(4).
If the medical records were obtained via 45 C.F.R. § 164.512(j) (“Uses and disclosures to avert a serious threat to health or safety”), such as, for example, guardianship proceedings, disclosure is permitted. If these records do not involve mental health records, then only way to exclude them from public access and file on green paper would be via the four-part process in AR 9(G)(4).
If medical records are obtained via subpoena or some other court-ordered mechanism, 45 C.F.R. § 164.512(e) still allows those medical records to be used in litigation and only requires the party seeking the record to seek a “qualified protective order” which “(A) Prohibits the parties from using or disclosing the protected health information for any purpose other than the litigation or proceeding for which such information was requested; and (B) Requires the return to the covered entity or destruction of the protected health information (including all copies made) at the end of the litigation or proceeding.”
But as we know, the Indiana Supreme Court has declared that a protective order only governs the exchange of information between the parties during discovery and does not govern what is thereafter filed in open court. Therefore, the parties must use the four-part test in AR 9(G)(4) to exclude the records.
Note that this approach—not automatic exclusion even though the HIPAA Qualified Protective Order was issued—is consistent with how federal courts treat medical records. For example, the court in Karpenski v. American General Life Companies, LLC, 2013 WL 5588312 (W.D. Wash. 2013), noted that the HIPAA Qualified Protective Order issued during discovery did not govern whether the documents would thereafter be filed under seal. Instead, to seal documents filed in federal courts, “the party must articulate compelling reasons supported by specific factual findings, that outweigh the general history of access and the public policies favoring disclosure, such as the public interest in understanding the judicial process.” The Karpenski court ultimately concluded that the overall protections in HIPAA provided the “compelling reasons” needed to seal documents. Cf. Womack v. Delaware Highlands AL Services Provider, LLC, 2012 WL 1033384 (D. Kan. 2012).