Friday, October 21, 2016

Ind. Decisions - Supreme Court decides one today; and J. Slaughter's 1st majority opinion

In Mary K. Patchett v. Ashley N. Lee, a 12-page, 5-0 decision, including a separate concurring opinion, Justice Slaughter writes:

In Stanley v. Walker, 906 N.E.2d 852 (Ind. 2009), we interpreted Indiana’s collateral-source statute to permit a defendant in a personal-injury suit to introduce discounted reimbursements negotiated between the plaintiff’s medical providers and his private health insurer, so long as insurance is not referenced. Today, we hold the rationale of Stanley v. Walker applies equally to reimbursements by government payers. The animating principle in both cases is that the medical provider has agreed to accept the reduced reimbursement as full payment for services rendered. The reduced amount is thus a probative, relevant measure of the reasonable value of the plaintiff’s medical care that the factfinder should consider. * * *

The parties agreed that Indiana Evidence Rule 413 allowed Lee to introduce her accidentrelated medical bills totaling $87,706.36 as evidence those charges were reasonable. The parties disagreed, however, whether Patchett could introduce evidence that Lee’s providers accepted a reduced amount as payment in full. Specifically, because Lee was enrolled in the Healthy Indiana Plan (HIP), a government-sponsored healthcare program, her providers, as HIP participants, accepted HIP’s prevailing reimbursement rates of $12,051.48 in full satisfaction of those charges— an 86-percent discount from the amounts billed.

Lee moved before trial to prevent the jury from hearing the reduced HIP rates. Patchett objected, but the trial court granted Lee’s motion. In addition to finding that the HIP payments are subject to the collateral-source statute and not permitted by Stanley, the court excluded the HIP amounts under Evidence Rule 403, because it found HIP’s reduced rates would only confuse the jury. The court certified its order for interlocutory appeal, observing that “whether [Patchett] may prove the reasonable value of [Lee’s] medical expenses by introducing evidence of the discounted payments made to her medical providers through HIP is of critical importance to the jury’s determination of damages.”

The Court of Appeals accepted jurisdiction and affirmed. Patchett v. Lee, 46 N.E.3d 476 (Ind. Ct. App. 2015). The court concluded Stanley was limited to “evidence of ‘discounted amounts’ arrived at as the result of negotiation between the provider and an insurer”. Id. at 487. Because the reduced HIP amounts “were not calculated based upon market negotiation”, the court held they are “not probative of reasonable value” and were properly excluded. Id. Patchett then sought transfer, arguing the courts below erred in finding Stanley v. Walker inapplicable to HIP discounts. We grant transfer, thus vacating the Court of Appeals opinion, and reverse. * * *

Stanley v. Walker made evidence of the reduced reimbursements a healthcare provider accepts as full payment for services rendered to be presumptively admissible in a personal-injury suit for damages concerning the reasonable value of necessary medical care. We hold that the trial court misinterpreted Stanley by holding the collateral-source statute required the exclusion of accepted reimbursements from government payers. Moreover, we find the court abused its discretion by excluding such evidence under Rule 403. We reverse and remand with instructions to allow Patchett to introduce evidence of the reduced HIP rates accepted by Lee’s medical providers so long as Patchett can do so without referencing their source.

Rush, C.J., and Massa, J., concur.

Rucker, J., concurs in result with separate opinion in which David, J., joins. Largely for reasons the majority explains I agree “the rationale of Stanley v. Walker applies equally to reimbursements by government payers.” Slip op. at 2 (emphasis added). I write separately however because I continue to believe Stanley was wrongly decided. * * *

Nonetheless neither party nor their aligned amici asks us to reconsider Stanley. And importantly, in the years since Stanley was decided, the legislature has not amended the collateral source statute in a way that demonstrates disapproval with this Court’s judicial interpretation. Further, the landscape in the healthcare industry has not changed dramatically since Stanley was decided and thus our doctrine of stare decisis also militates against charting a different course. For these reasons I concur in the result reached by the majority.

Posted by Marcia Oddi on October 21, 2016 02:43 PM
Posted to Ind. Sup.Ct. Decisions

Ind. Decisions - Two orders suspending attorneys for noncooperation

Two orders issued yesterday: "Suspending Respondent from the Practice of Law in Indiana for Noncooperation"

Posted by Marcia Oddi on October 21, 2016 11:17 AM
Posted to Ind. Sup.Ct. Decisions

Ind. Decisions - Court of Appeals issues 0 opinion(s) today (and 5 NFP memorandum decision(s))

For publication opinions today (0):

NFP civil decisions today (2):

In re the Termination of the Parent-Child Relatinship of A.C. (Minor Child), and D.C. (Mother) v. The Indiana Department of Child Services (mem. dec..)

In the Matter of the Civil Commitment of B.J. v. Eskenazi Hospital/Midtown CMHC (mem. dec.)

NFP criminal decisions today (3):

Kyle Willhite v. State of Indiana (mem. dec.)

Sheila Johnson v. State of Indiana (mem. dec.)

Jose Gutierrez v. State of Indiana (mem. dec.)

Posted by Marcia Oddi on October 21, 2016 11:08 AM
Posted to Ind. App.Ct. Decisions

Ind. Gov't. - Millions of pages of Gibson County court records will be digitized

Andrea Howe reports in the Princeton Daily Clarion in a story that begins:

Millions of pages of Gibson County court records will be converted digital archives in a $61,000 contract with Van Ausdall & Farrar approved Tuesday by Gibson County Commissioners.

Commissioners approved the company’s quote for the preservation work, which is about $9,500 less than an earlier proposal from another company.

Meanwhile, as that work proceeds, boxes of damp smelly records rescued from the basement of the old Princeton Sanitorium on West State Street are being aired out in the North Main Street Annex Building.

Volunteers from Princeton Public Library are working on copying information from those boxes as the pages dry. The process should take about 12 to 14 months, estimated Gibson County Commissioner Alan Douglas.

Posted by Marcia Oddi on October 21, 2016 10:03 AM
Posted to Indiana Decisions

Ind. Gov't. - “In my own state, in my own state of Indiana our State Police just recently uncovered intentional acts of voter fraud,” Pence said

That is from a WTTV 4 story by Jill Glavan.

The ILB last posted about voter fraud claims in Indiana on Oct. 11th, recalling the ACORN controversy in 2008.

This year there seem to be two parallel stories, and MUCH confusion. But the upshot may be just so much sound and fury ...

A voter registration group is signing up prospective new voters around the state, and the Indiana State Police appears to be investigating them ...

At the same time, as John Tuohy wrote in the Indianapolis Star yesterday:

As Republican presidential nominee Donald Trump repeats his message that the general election process is "rigged," the top election official in the home state of his running mate, Indiana Gov. Mike Pence, said she has found thousands more incidents of what she characterized as potential "voter fraud."

Republican Secretary of State Connie Lawson said her office has found voter registration forms containing first names and birth dates different from what voters provided. She said she has handed those altered records over to the Indiana State Police for review.

But there is much more in the story, including:
Though Lawson said thousands of tampered forms were discovered, neither office spokeswoman Valerie Warycha nor State Police would reveal precisely how many. Warycha said a number of registration forms each election are changed by voters themselves to provide updated information. In addition, government employees make a certain number of data entry errors. But she said the number of changed registrations this year was much higher than in past elections, which led officials to believe fraud was being committed. * * *

In Hamilton County, Republican elections administrator Kathy Richardson said she had not received any complaints and said she was miffed how Lawson concluded so quickly that the alleged anomalies might be fraud.

"I don't know how you distinguish between people purposely changing their information and those who didn't," Richardson said. "In an election like this, where everyone wants to vote, you are going to get a lot of changes. People change their first names or last names or change their addresses. Especially people who haven't voted in a while.

Then the story touches on the State Police investigation:
State Police also are investigating alleged fraud connected to the voter registration efforts of the group Patriot Majority USA. State Police officers raided the group's offices Oct. 4 and days later alleged fraud in 56 counties.

State Police Capt. Dave Bursten said the latest allegations could be linked to the earlier raid.

"What I can tell you at this moment is the changing of a first name and/or date of birth is consistent with what we are seeing on a number of voter registration applications submitted by PMUSA IVRP," he said in an email.

Craig Varoga, president of Patriot Majority USA, accused Gov. Mike Pence last week of using the State Police to suppress Indiana voters and violate their constitutional rights. And the group recently launched radio ads on black-oriented stations and placed ads in black newspapers across the state Saturday, accusing the governor and Republican vice presidential nominee of voter suppression.

Pence and State Police denied the accusations.

On Tuesday, Varoga said Lawson was trying to blame others for mistakes in her own office.

"In 2014 Connie Lawson was publicly forced to admit that 1 in 8 voters in the Secretary of State's registration lists had inaccurate information," he said in an email. "Instead of fixing the problem, now she is blaming the Bureau of Motor Vehicles, online registration and others for her gross incompetence."

The state allegations of fraud come as Trump has made a "rigged" election a prominent allegation in his recent campaign speeches.

“The election is absolutely being rigged by the dishonest and distorted media ... but also at many polling places,” Trump tweeted Sunday.

But, the story continues:
Andy Downs, director of the Mike Downs Center for Indiana Politics, said altering thousands of registration forms online and in the county offices would require a small army, he said.

"Coordinated voter fraud would be very complicated and labor intensive," he said. "I don't know how many people have that type of organization. And creating the false registration record is only part of it. Then you would have to get the fake people into the voting places to cast ballots."

A lengthy Oct. 20 story from Brian Slodysko of the AP begins:
INDIANAPOLIS (AP) — After initially warning of potential widespread voting fraud, Indiana's secretary of state has acknowledged that many of the thousands of altered registration records she flagged might just be residents rushing to correct their names or birth dates ahead of the election.

Republican Secretary of State Connie Lawson told The Associated Press she wanted Indiana State Police to investigate to ensure there was no widespread fraud after her office found a heavier than usual number of changes to voter registration records this election cycle.

"It's very possible that because of heightened activity this year that many of those changes are changes that the individual made," Lawson said Wednesday. "... That should give Indiana voters the comfort that we are vigilant and we are protecting their rights and the elections here are not rigged." * * *

Julia Vaughn, policy director for the nonpartisan government watchdog group Common Cause Indiana, said that before Lawson makes allegations of possible fraud her office "should make sure the voter file records haven't been altered through software snafus or human errors made by people in county or state agencies."

"There is almost no history of this kind of fraud here so her response helps to fuel irrational claims by Donald Trump and others that the election will be stolen through voter fraud," Vaughn said.

Today Zach Osowski and Chelsea Schneider have an Indianapolis Star story headed "Democrats blast Indiana 'voter fraud' talk as partisan." Some quotes:
Indiana Democrats are accusing Indiana Secretary of State Connie Lawson of playing partisan games and using “inflammatory rhetoric” when she alleged thousands of cases of voter registration discrepancies in Indiana could be voter fraud. * * *

Party spokesman Drew Anderson said with high-profile races in Indiana and with Republican presidential nominee Donald Trump claiming the national election is rigged, Lawson using a term like “voter fraud” without proof that fraud has actually occurred reeks of partisan politics.

“It should be the duty of our elected officials to calm the waters ahead of what is sure to be a very vigorous election,” Anderson said at a Thursday news conference. “Instead … Lawson rushed to judgment without apparently knowing all the facts or without doing her homework.”

Responding to Democrats, Lawson said voters have contacted her office for nearly two weeks, saying that their birth date or first name was changed on their registration without their knowledge. Lawson has said her office is unsure why the records were changed, but voters needed to be alerted. * * *

Local election officials in the Indianapolis area expressed confidence in the voting process, saying they're not seeing cases in which a voter's information has been altered without that person's knowledge.

What they are seeing is voters not finding themselves when they check their registration in a separate database kept by the secretary of state at the office's website, The clerks suspect those cases stem from voters putting incorrect information into the site.

Emily Shrock, the Democratic Party's voter protection director, said the discrepancies highlighted by Lawson could be as simple as a woman getting married and not changing her name on her voter registration. She said for Lawson to throw around words like fraud without having any proof to back that up depresses voter turnout.

Also today Mitch Smith, dateline Hammond, Ind., reports in a long story for the New York Times appears to pinpoint the genesis of the State Police investigation:
Debbie Hoskins, the elected clerk of Hendricks County, said she noticed problems several weeks ago with roughly 10 voter registration forms submitted by the Indiana Voter Registration Project.

Some of the forms were missing information, said Ms. Hoskins, a Republican. In other instances, the signatures on the forms did not seem to match those already in a state database. Ms. Hoskins said her office contacted one registered voter and asked about a form purporting to update some registration information. The voter claimed to have filled out no such form.

“Things didn’t feel right,” said Ms. Hoskins, whose concerns were to the State Police. “Things didn’t look right.”

THE INVESTIGATION The Indiana State Police served a search warrant on Oct. 4 at the Indiana Voter Registration Project office in Indianapolis, in response to a tip in August about voter registration forms being submitted with “missing, incomplete and incorrect information.”

At first the inquiry focused on just two counties, including Hendricks, but within a few days it had expanded to 56 of Indiana’s 92 counties.

Capt. David Bursten, a State Police spokesman, declined to say how many voter registration forms had been called into question. He said the investigation remained active and that no one had yet been arrested.

The NYT story then makes the jump right to the Secretary of State:
This week Connie Lawson, Indiana’s secretary of state, said that “thousands of dates of births and first names were changed” in the voter registration system and that “this may be a case of voter fraud.”

That expanded the investigation by the State Police. In a statement, Captain Bursten said that “the changing of a first name and/or date of birth is consistent with what we are seeing on a number of voter registration applications submitted” by the voter registration project.

THE VOTERS Reports of altered voter profiles created concern among citizens that they might have been unregistered. Ms. Hoskins, the county clerk, said a number of voters had been calling to check whether they were still eligible to vote.

“There are a lot of people that are worried,” she said, adding that in each of those cases, “We haven’t had a problem so far.”

Posted by Marcia Oddi on October 21, 2016 09:06 AM
Posted to Indiana Government

Thursday, October 20, 2016

Ind. Decisions - 7th Cir. rules on Illinois law regulating the concealed-carry rights of nonresidents

In Culp v. Madigan (CD Ill.), 22-page 2-1 opinion, Judge Posner writes:

The plaintiffs in this case, nonresidents of Illinois each of whom has a concealed-carry license from his home state, travel to Illinois whether on business or for family or other reasons and want, while they are in Illinois, to be allowed to carry a firearm even if they are not within the exceptions to the restrictions on nonresident gun carrying just listed, but are not allowed to do so because they aren’t residents of states that have firearm laws substantially similar to Illinois’. They argue that Illinois’ refusal to issue concealed-carry licenses to them violates Article IV of, and the Second and Fourteenth Amendments to, the Constitution. The district judge declined to issue a preliminary injunction, precipitating this appeal. * * *

The critical problem presented by the plaintiffs’ demand—for which they offer no solution—is verification. A nonresident’s application for an Illinois concealed-carry license cannot be taken at face value. The assertions in it must be verified. And Illinois needs to receive reliable updates in order to confirm that license-holders remain qualified during the five-year term of the license. Yet its ability to verify is extremely limited unless the nonresident lives in one of the four states that have concealed-carry laws similar to Illinois’ law. A trial in this case may cast the facts in a different light, but the plaintiffs have not made a case for a preliminary injunction. AFFIRMED

MANION, Circuit Judge, dissenting. [beginning on p. 8]
Just four years ago, this court invalidated Illinois’ decades-old blanket ban on the carrying of firearms in public. Moore v. Madigan, 702 F.3d 933 (7th Cir. 2012). We recognized that the Second Amendment requires states to “permit law-abiding and mentally healthy persons to carry loaded weapons in public.” Berron v. Ill. Concealed Carry Licensing Review Bd., 825 F.3d 843, 845 (7th Cir. 2016). It was only in response to our decision in Moore that Illinois finally became the last state in the nation to enact a concealed-carry law.

Although Illinois now reluctantly allows its residents to carry concealed weapons with a license, it still significantly restricts the rights of nonresidents to do so. State law prevents the residents of 45 states from even applying for an Illinois concealed-carry license because the Department of State Police has not classified their states’ public-carry qualifications as “substantially similar” to those Illinois imposes. These nonresidents, including the plaintiffs in this case, have no opportunity to prove that they meet Illinois’ requirements. Based solely on their states of residence, they are deprived of any opportunity to exercise their Second Amendment rights in Illinois.

When a state law infringes on the fundamental Second Amendment right to keep and bear arms for self-defense, it must satisfy heightened scrutiny. Our precedents instruct that to sustain such a law, a state must present “an extremely strong public-interest justification and a close fit between the government’s means and its end.” Ezell v. City of Chicago, 651 F.3d 684, 708 (7th Cir. 2011). Illinois has not done so here. As explained below, the state’s chosen method to regulate non-resident concealed-carry license applications is not sufficiently tailored to its goal of properly vetting out-of-state applicants’ criminal and mental histories. Therefore, the ban violates the Second Amendment.

Nevertheless, the court holds that the plaintiffs are not entitled to preliminary relief because the application ban is not “unreasonable.” The court’s application of rational-basis review to the nonresident application ban is directly contrary to Supreme Court and Seventh Circuit precedent. Under the proper standard of review, the plaintiffs are certain to succeed on the merits of their Second Amendment claim.1 I would reverse the district court’s judgment and remand with instructions to issue a preliminary injunction. I respectfully dissent.

Posted by Marcia Oddi on October 20, 2016 06:50 PM
Posted to Ind. (7th Cir.) Decisions

Ind. Decisions - Supreme Court issued four disciplinary orders October 7th

The Supreme Court issued 4 disciplinary orders on October 7th:

  • In the Matter of: Adam Mears, a 1-page order accepting resignation and concluding proceeding

  • In the Matter of: Felix O'Neill Rippy - a 1-page "Published Order Imposing Reciprocal Discipline" - respondent had been suspended in Texas for 18-months

  • In the Matter of: Joseph M. Robertson II - 2-page order:
    On September 8, 2014, Respondent, who practices in Jackson County, drove while intoxic ated to the Shelby County Courthouse for a scheduled small claims hearing. Upon arriving at Superior Court 2, Respon dent made repeated physical sexual advances on the court’s receptionist. The judge and a security officer were summoned, a breath test was administered to Respondent, and the results indicated an alcohol concentration equivalent (“ACE”) of 0.15. The judge immediately convened a contempt hearing, during which Respondent had to lean on the rail in front of the bench to steady himself. Respon dent was found in direct contempt and ordered jailed until his ACE returned to zero. As a result of these events, the small claims hearing for which Respondent had appeared had to be continued for another date and all other hearings scheduled in the court that day were delayed at least an hour. Respondent was charged with several crimes in connection with this incident and eventually pled guilty to operating while intoxicated (“OWI”) as a class A misdemeanor. * * *

    For Respondent’s professional misconduct, the Court suspends Respondent from the practice of law for a peri od of one year, beginning November 14 , 201 6 , with 90 days actively served and the remainder stayed subject to completion of at least two years of probation on the following terms and conditions * * *

  • In the Matter of: John D. Pierce - a 1-page order suspending respondent from the practice of law for noncooperation

Posted by Marcia Oddi on October 20, 2016 01:11 PM
Posted to Ind. Sup.Ct. Decisions

Environment - "National Park Service says banquet center at beach would constitute public-to-private conversion"

Updating a lengthy list of earlier ILB posts on the Indiana Dunes pavilion controversy, Kevin Nevers of the Chesterton Tribune reported last evening in a long story beginning:

The proposed banquet center at Indiana Dunes State Park beach would constitute a conversion of public recreational land under the Land and Water Conservation Fund (LWCF) Act of 1965.

That’s the finding of Roger Knowlton, acting chief, recreation grants, at the National Park Service’s Midwest Regional Office, communicated in a Sept. 16 letter to Department of Natural Resources Director Cameron Clark.

Knowlton’s finding means that, before Pavilion Partners LLC may actually break ground on a banquet center, the DNR must identify and substitute--in place of the footprint removed from public recreational use at the Dunes State Park lakefront--some other property “determined by NPS to be of at least equal fair market value and of reasonably equivalent usefulness and location,” as NPS puts it in the final LWCF rule published in the Federal Register in 1986.

Posted by Marcia Oddi on October 20, 2016 11:35 AM
Posted to Environment | Indiana Government

Courts - "Last night’s presidential debate: The Supreme Court and the candidates"

Amy Howe of SCOTUSblog posts this morning on the discussion of the SCOTUS during last night's 3rd presidential debate, concluding:

No matter who is elected, the next president’s ability to influence the court’s direction will hinge on his or her ability to nominate, and have the Senate confirm, new justices. The current vacancy on the court, created by the death of Justice Antonin Scalia last February, came up only once, when Clinton expressed her “hope that the Senate would do its job and confirm the nominee” – Chief Judge Merrick Garland of the U.S. Court of Appeals for the D.C. Circuit, although she did not refer to him by name – “that President Obama has sent to them.” Clinton did not say, and Wallace did not ask, whether she would re-nominate Garland if she were elected and the Senate had not acted on his nomination by the time she took office.

Posted by Marcia Oddi on October 20, 2016 11:29 AM
Posted to Courts in general

Ind. Decisions - Court of Appeals issues 2 opinion(s) today (and 13 NFP memorandum decision(s))

For publication opinions today (2):

In James A. McGee v. Shanna Kennedy , a 9-page opinion, Judge Bailey writes:

Shanna Kennedy (“Kennedy”) and James McGee (“McGee”) were involved in an automobile accident and litigation ensued. McGee filed an Indiana Trial Rule 12(B)(6) motion to dismiss on statute of limitations grounds and Kennedy filed an Indiana Trial Rule 59 Motion to Correct Error in order to amend the filing date of her complaint. The trial court granted the Trial Rule 59 motion, McGee filed a motion to reconsider, the motion to dismiss was set for hearing, and McGee initiated an appeal. While the appeal was pending, the trial court purportedly granted the motion to dismiss. Lacking jurisdiction, we dismiss the interlocutory appeal.

McGee presents a single, consolidated issue: whether the trial court properly granted Trial Rule 59 relief. Kennedy presents a single, consolidated issue: whether the trial court properly granted McGee’s Trial Rule 12(B)(6) motion to dismiss. We address the procedural and substantive allegations of the parties to the extent necessary to resolve an issue that we raise sua sponte: whether there is subject matter jurisdiction to hear the appeal. * * *

In essence, Kennedy sought a summary means to amend her complaint by presenting an affidavit and asking the trial court to correct error with reference to Trial Rule 59. McGee, in turn, filed an “exhibit.” (App. at 25.) Kennedy could not, however, simply circumvent summary judgment proceedings by referencing Trial Rule 59 and obtaining a generic ruling thereon. We do not consider her pre-trial motion to be a “timely” filing of a Motion to Correct Error defined as a final judgment by Appellate Rule 2(H)(4).3 Likewise, McGee could not deprive Kennedy of the opportunity to amend her complaint and obtain a final disposition by means of a dismissal while an appeal pended. In short, the procedures employed did not result in a final judgment, that is, one which disposes of all claims as to all parties. With no final judgment before us, we dismiss the interlocutory appeal.

In State of Indiana v. Tyson Timbs and a 2012 Land Rover LR2, a 13-page, 2-1 opinion, Judge Mathias writes:
The State of Indiana filed a complaint for forfeiture in Grant Superior Court seeking to obtain a 2012 Land Rover LR2 owned by Tyson Timbs (“Timbs”). The trial court ruled in favor of Timbs, and the State appeals, presenting one issue, which we restate as whether the trial court erred in concluding that forfeiture of Timbs’s vehicle would constitute a constitutionally excessive fine. We affirm. * * *

Forfeiture of the Land Rover, which was worth approximately four times the maximum permissible statutory fine, was grossly disproportionate to the gravity of Timbs’s offense. We therefore affirm the trial court’s conclusion that forfeiture of the Land Rover violated the Excessive Fines Clause of the Eighth Amendment.

Vaidik, C.J., concurs.

Barnes, J., dissents with opinion. [that begins, on p. 12, and concludes] I am keenly aware of the overreach some law enforcement agencies have exercised in some of these cases. Entire family farms are sometimes forfeited based on one family member’s conduct, or exorbitant amounts of money are seized. However, it seems to me that one who deals heroin, and there is no doubt from the record we are talking about a dealer, must and should suffer the legal consequences to which he exposes himself.

Timbs dealt heroin and got caught. I vote to reverse the trial court’s denial of the State’s forfeiture request.

NFP civil decisions today (3):

Michael A. Wilson v. State of Indiana and Allen County Courts (mem. dec.)

Sondra Rabin v. S.T.M. Enterprises, LLC (mem. dec.)

Eric Leo Kamradt v. Theresa Ann Kamradt (mem. dec.)

NFP criminal decisions today (10):

State of Indiana v. Kevin Ford (mem. dec.)

Elexus Lloyd v. State of Indiana (mem. dec.)

Clifford M. Lawrence v. State of Indiana (mem. dec.)

Ra'Dreeka Gillespie v. State of Indiana (mem. dec.)

Bernie C. Harmon v. State of Indiana (mem. dec.)

Johnny Dutrayl McSwain v. State of Indiana (mem. dec.)

Jeffrey S. Heironimus v. State of Indiana (mem. dec.)

Timothy Hooker v. State of Indiana (mem. dec.)

Elijah Roberson v. State of Indiana (mem. dec.)

Dyshaun Tyrell Elliott v. State of Indiana (mem. dec.)

Posted by Marcia Oddi on October 20, 2016 11:09 AM
Posted to Ind. App.Ct. Decisions

Wednesday, October 19, 2016

Ind. Decisions - Court of Appeals issues 6 opinion(s) today (and 9 NFP memorandum decision(s))

For publication opinions today (6):

In Central Indiana Podiatry, P.C., Northwest Surgery Center, LLC, d/b/a Foot & Ankle Surgery Center, f/k/a Foot & Ankle Surgery Center, LLC and Anthony E. Miller, D.P.M. v. Barnes & Thornburg, LLP, a 23-page ruling with two opinions, Judge May writes:

Central Indiana Podiatry, P.C. (“CIP”), Northwest Surgery Center, LLC d/b/a Foot & Ankle Surgery Center f/k/a Foot & Ankle Surgery Center, LLC (“FASC”), 1 and Anthony Miller, D.P.M. (“Miller”) (collectively “the Miller Parties”) appeal summary judgment for Barnes & Thornburg, LLP (“B&T”). The Miller Parties present multiple issues for our review, which we consolidate and restate as: 1. Whether the Miller Parties’ allegations of fraud preclude B&T from relying on the Release Agreement; and 2. Whether the terms of the Release Agreement preclude the Miller Parties from suing B&T for the alleged acts of malpractice. We affirm.

B&T had provided legal services to Miller, as owner and sole shareholder of CIP and FASC, since the early 1990’s. The current case stems from a disagreement regarding legal fees. * * *

The Miller Parties did not properly present their fraud claims to the trial court because they did not do so in a pleading. The trial court did not err when it granted summary judgment in favor of B&T because the Release Agreement prohibits the Miller Parties from suing B&T for actions taken in the Vogel Federal Litigation. Accordingly, we affirm.

Bailey, J., concurs.
Crone, J., concurs with separate opinion. [that begins, on p. 20] I agree with my colleague’s resolution of the issues presented in this appeal. I write separately, however, to question the wisdom of allowing attorneys to prospectively insulate themselves from liability for future acts of legal malpractice. * * *

Legitimate arguments can be made that lawyers should be allowed to limit liability to clients for past acts of malpractice in arm’s-length negotiations involving independent counsel; this is nothing more than the settlement of an existing claim. But, in my view, allowing lawyers to prospectively limit liability to clients for future acts of malpractice subverts the very nature of the attorneyclient relationship. Until and unless our supreme court abolishes this practice, Hoosiers seeking competent and diligent legal representation may be left to fend for themselves against lawyers who wish to avoid liability for future acts of malpractice.

In Kevin L. Snyder v. Anastasia Snyder, an 8-page opinion, Judge Altice writes:
Kevin L. Snyder (Husband) appeals from the trial court’s order dissolving his marriage to Anastasia Snyder (Wife). Concluding sua sponte that this appeal is untimely, we dismiss.

Because Husband’s motion to reconsider was deemed denied months earlier, his notice of appeal therefrom was untimely. Timeliness aside, the September 29, 2015 order was neither a final judgment nor an appealable interlocutory order. The order was not a final judgment for the same reason as the March 30, 2015 order—it left the valuation and distribution of the Vehicles for a later date and it did not include the “magic language” set forth in T.R. 54(B). Nor does the September 29, 2015 order fall within any of the App. R. 14(A) categories for interlocutory appeals as of right—unlike the March 30, 2015 order, the trial court’s ruling on the motion to reconsider did not include an order for the payment of money. Finally, Husband has not sought or obtained the requisite authorization to pursue a discretionary interlocutory appeal pursuant to App. R. 14(B). Thus, to the extent this is an appeal from the September 29, 2015 order, we lack jurisdiction to entertain it. Appeal dismissed.

In T.A. v. State of Indiana, an 8-page opinion, Sr. Judge Barteau writes:
T.A. appeals the juvenile court’s denial of his petitions for expungement in six juvenile proceedings. We reverse and remand with instructions.

T.A. raises one question of law, which we restate as: whether the juvenile court erred in denying his petition for expungement. * * *

Next, T.A. argues that pursuant to the plain language of the statute, the trial court should have granted the petition because T.A. did not have any pending charges when he filed it. The State responds that, pursuant to statute, the juvenile court was permitted to consider T.A.’s post-petition criminal charge. * * *

The State asserts it would be absurd for the trial court to be allowed to schedule a hearing but disallowed from considering criminal charges that were filed after the petitioner filed the petition for expungement. However, the plain language of section 35-38-9-1(e), as applied to the consideration of whether a petition meets the requirements for expungement, does not contradict any other portion of the statute or the act as a whole. As a result, we must apply the plain language of the statute without recourse to the rules of statutory construction, and we will not read into the statute “a legislative intent other than that which is clearly stated.” Trout v. State, 28 N.E.3d 267, 271 (Ind. Ct. App. 2015). We conclude the court should have determined whether there was a pending criminal charge at the time the petition was filed, as opposed to a later date. As a result, the court erred here in considering T.A.’s post-filing criminal charge. See id. at 272 (trial court that denied petition for expungement erred in considering evidence of another violent act by petitioner that did not result in a conviction, even though the petitioner did not deny committing the act). The State does not claim that T.A.’s petition violated any other provisions of Indiana Code section 35-38-9-1. We must reverse the denial of the petition.

In State of Indiana v. Charles Summers , a 9-page opinion, Chief Judge Vaidik writes:
After being ordered to register as a sex offender in Illinois for ten years, Charles Summers moved to Indiana. Summers later registered as a sex offender in Indiana. When Indiana applied its tolling statute to Summers (in order to extend Summers’ registration period by the amount of time he was incarcerated in Indiana for new crimes committed), Summers claimed that applying the statute to him violated Indiana’s prohibition against ex post facto laws. He argued that when he committed his underlying offense in Illinois, Indiana had not yet enacted its tolling statute. Because Summers was under a tolling requirement in Illinois, we find no punitive burden to maintaining that requirement across state lines. Because there is no ex post facto violation, we reverse the trial court and remand this case. * * *

First, as in Tyson, Summers was a sex offender in Illinois; by moving across state lines, Summers merely maintained his sex-offender status. Second, although Indiana adopted its tolling provision several years after Summers was adjudicated a juvenile delinquent in Illinois, Summers was already under a tolling requirement in Illinois. There is no punitive burden to maintaining both of these requirements across state lines. Because Summers has not established an ex post facto violation, we reverse the trial court’s dismissal of the criminal charges against Summers in Cause No. F6-233 and reverse the trial court’s grant of Summers’ petition to remove his name from the sex-offender registry in Cause No. MI-70. Reversed and remanded.

In Ryan Clark v. State of Indiana, a 6-page opinion, Judge Pyle writes:
Following his participation in a horrific home invasion, Ryan Clark (“Clark”) was convicted of the following sixteen offenses: (1) two counts of rape as Class A felonies; (2) three counts of criminal deviate conduct as Class A felonies; (3) five counts of confinement as Class B felonies; (4) one count of robbery as a Class C felony; (5) one count of carjacking as a Class C felony; (6) two counts of battery as Class C felonies; and (7) two counts of battery as Class A misdemeanors. He now appeals those convictions and argues that the evidence is insufficient to support them. Specifically, he contends that the testimony of victim A.M. (“A.M.”) was incredibly dubious. Finding that the incredible dubiosity rule does not apply in this case, we affirm Clark’s convictions. * * *

Here, our review of A.M.’s testimony reveals that the incredible dubiosity rule simply does not apply in this case. A.M.’s testimony was not inherently contradictory. She never wavered in her identification of Clark and had several opportunities to view his uncovered face, including three times in well-lit conditions. Further, the identifiable mark on Clark’s hip as well as DNA evidence implicating his friend provided circumstantial evidence of Clark’s guilt. Clark’s suggestions that A.M. was too distraught to make a reliable identification or that there was not enough light for her to clearly see the intruders are requests for us to reweigh the evidence. This we cannot do.

In Edward A. Holt, Jr. v. State of Indiana , a 10-page opinion, Judge Pyle writes:
Edward A. Holt, Jr., (“Holt”) appeals his sentence imposed after his guilty plea to two counts of Class C felony child molesting.1 On appeal, he asks us to find that his four year sentence was inappropriate and to reduce or suspend it accordingly. In response, the State requests that we also find Holt’s sentence inappropriate but that we increase it to six years for each conviction. Because we do not find that Holt’s sentence was inappropriate, we affirm. * * *

In light of the nature of Holt’s offenses and his character, we cannot agree with him that his sentence was inappropriate and warrants a reduction in his sentence. As we have also determined that we will not increase his sentence, we affirm the trial court.

NFP civil decisions today (4):

E.F. v. Indiana Department of Child Services (mem. dec.)

Beverly R. Newman v. Meijer, Inc. (mem. dec.)

In the Matter of the Involuntary Term. of the Parent-Child Relationship of A.B. and A.B. (Minor Child) and their Father J.B., J.B. (Father) v. Ind. Dept. of Child Services (mem. dec.)

Gladys Hale and Oma Bolen v. Ricky Handshoe, Gary Handshoe, and Bertha Jimeniz (mem. dec.)

NFP criminal decisions today (5):

Wayne Mitchell v. State of Indiana (mem. dec.)

Leah S. Fink v. State of Indiana (mem. dec.)

Natasha Peters v. State of Indiana (mem. dec.)

Dorris Latrese Dooley v. State of Indiana (mem. dec.)

Jack Hiatt v. State of Indiana (mem. dec.)

Posted by Marcia Oddi on October 19, 2016 11:20 AM
Posted to Ind. App.Ct. Decisions

Ind. Gov't. - More on "Allowing guns in parks proposed" in Fort Wayne

This Oct. 12th ILB post reported the effort in Fort Wayne to "remove language in the city code prohibiting residents from carrying firearms in city parks" and noted that "This story may sound familiar to many ILB readers who recall similar issues involving Hammond and Evansville," going on to discuss a similar situation in Hammond that resulted in a 3/15/13 COA opinion, Dykstra v. The City of Hammond.

Today Dave Gong reports in the Fort Wayne Journal Gazette:

In a 6-3 preliminary vote Tuesday, the Fort Wayne City Council approved changes to a city ordinance banning firearms from city parks.

The proposal brought forward by Councilman Jason Arp, R-4th, will remove firearms from a list of items including paint ball guns, BB guns and fireworks that are prohibited from city parks. Arp and supporters of the change say the update is necessary to bring the ordinance into line with state law and possibly avoiding future costs in legal fees.

“The reason why is it is a violation to Indiana Code 35-47-11.1, which prohibits local units from the regulation of firearms,” Arp told the council. * * *

[However] Changing the law won’t have an actual impact on city policy, since changes to state law in 2011 regarding the carrying of firearms in public spaces supersede local ordinances, city attorney Carol Helton said.

“Because our ordinance predates the adoption of the state law, … it is not a violation of the state law for that ordinance to remain as written,” Helton said, citing the 2013 case Dykstra v. City of Hammond.

Dykstra states, “regardless of whether the Ordinances were still in the Hammond Municipal Code, they became void upon the effective date of Indiana Code chapter 35-47-11.1. An individual cannot be adversely affected by a void ordinance, because by its very nature, a void ordinance is “[o]f no legal effect; null.”

Therefore, taking the word “firearm” out of the city ordinance would have no legal impact whatsoever, Helton said.

Posted by Marcia Oddi on October 19, 2016 10:36 AM
Posted to Indiana Government

Ind. Gov't. - More on "Monroe County treasurer candidate's campaign signs go viral"

Updating this post from yesterday, the $$ Bloomington Herald-Times editorializes today:

Republican candidate for county treasurer Ann Collins has made a couple of simple statements on a billboard. She says “I won’t steal and I know how to count.”

The social media world and some heavy hitters in the national media, including ABC News, have covered the candidate’s direct, no-frills approach. The implication is that these simple promises are kind of funny in a campaign for a public office that so clearly handles public money. Not stealing and knowing how to count should be givens, right?

If they knew of the recent history of some of the people elected to public offices that oversee taxpayer funds in Monroe County, they wouldn’t be laughing.

The Collins campaign is clever, but it makes a serious point about the performance and honesty of too many public officials in the past few elections.

Posted by Marcia Oddi on October 19, 2016 10:31 AM
Posted to Indiana Government

Ind. Courts - "Judge: Made decision with tragic result"

Renee Bruck reported yesterday afternoon in the Madison Courier:

Jefferson Superior Court Judge Michael Hensley explained his decision to deny a warrant request on a stalking charge more than a week after an ongoing domestic abuse case turned fatal.

Hensley issued a statement Monday concerning the stalking case filed against Anthony Russell just days before officials believe he killed his wife before killing himself.

Officials found Anthony Russell, 51, of Deputy, dead from a self-inflicted gunshot wound Oct. 7 in the 800 block of West Second Street. Less than two hours later, police and the Jefferson County Coroner found 44-year-old Laura Russell dead from multiple stab wounds at the Russell residence in Deputy. * * *

The two deaths came just days before Anthony Russell was due to appear in Jefferson Superior Court for an initial hearing on a felony charge of stalking after allegedly violating a court-ordered no-contact order with his wife.

Prosecutors requested a warrant be issued in the stalking case, but Hensley denied the request and issued a summons for Anthony Russell to appear in court following a three-day holiday weekend.

[Judge] Hensley’s decision to summons the man to court caused some to question why a warrant wasn’t issued sooner.

The story continues with long statements from both Judge Hensley and Jefferson County Prosecutor Chad Lewis. Judge Hensley writes in part:
When I do not find probable cause on a warrant request, I will now issue an order for a hearing to be held on the same day as the warrant request. I am hopeful the new procedure prevents a similar tragedy in the future.
Prosecutor Lewis writes in a long statement that begins:
The prosecutor’s office welcomes any procedure changes the judge is willing to make in an effort to prevent a similar tragedy in the future. The judge acknowledging that court procedure could help prevent another tragic decision is a step forward to combat domestic violence and aid in public safety. We look forward to being involved in that discussion and have several suggested changes.
A story from KREM2 News by Shay McAlister begins:
MADISON, Ind. (WHAS11) – More than a week after the controversial death of Laura Russell, Jefferson County Indiana Superior Judge Michael Hensley has released a statement in explaining his decision as it relates to the incident.

According to police, Anthony Russell attacked his estranged wife in her home, stabbing her multiple times, killing her and then killing himself. The incidents occurred on Oct. 7. The day before Laura’s murder, court documents show the Jefferson County Indiana Prosecutor filed felony 5 stalking charges and a motion to have Anthony arrested. Hensley denied that motion.

In a statement delivered to the Madison Courier on Monday, Hensley said, “I made what I thought to be the correct legal decision. Obviously I made a decision that had the most tragic result possible. “

Posted by Marcia Oddi on October 19, 2016 09:17 AM
Posted to Indiana Courts

Ind. Decisions - Still more on: 7th Cir. to rehear Ivy Tech anti-gay employment discrimination case en banc

Updating this ILB post from Oct. 12th (last week), the 7th Circuit on Tuesday, Oct. 11th announced that it had granted an en banc rehearing of Kimberly Hively v. Ivy Tech Community College, and vacated the earlier panel decision.

Katelyn Haas of the Indiana Daily Student reports today in a story headed "Ivy Tech releases transgender inclusive policy while facing discrimination lawsuit," that:

Ivy Tech released a new policy this week to protect transgender and gender nonconforming students and faculty from discrimination, 
according to a press release.

The policy guidelines 
require all school records to reflect the student’s gender and name, allow students to use the facilities that match their gender identity, and grant transgender and gender nonconforming students the right to express their 
gender identity openly or keep it private, as well as to be addressed by the name and pronouns that correspond to their gender identity.

It also protects them from administrators, faculty or staff from revealing an individual’s transgender status or gender non-conforming presentation to others unless the individual requests or consents to such disclosure.

Chris Paulsen, campaign manager of Freedom Indiana, said the new policy is fully inclusive.

“It’s the strongest policy in the state, actually,” Paulsen said. “It discusses both gender pronouns, name changes. It’s very strong. We’re pretty happy.”

The policy went into effect July 1 and was announced last week. Fanter said Ivy Tech values and embraces diversity. He said the college follows an equal opportunity policy that explicitly prohibits employment discrimination based upon a person’s sexual orientation.

Megan Holden of the Lafayette Journal & Courier also reported on this policy in a story this week:
Ivy Tech Community College has a new policy [copy here] in place to protect transgender and gender nonconforming students.

The statewide college system adopted a guideline that lays out the rights of students with the goal of creating a safe campus community for transgender and gender nonconforming students, Ivy Tech spokesman Jeff Fanter said. It was implemented in July but was only recently made public by advocacy group Freedom Indiana.

"The policy provides a beginning framework for transgender individuals and campus leaders and builds upon Ivy Tech's position of national leadership in higher education by signifying that our LGBTQ students and employees are of vital importance," Fanter wrote in an email interview. * * *

Ivy Tech is facing a lawsuit against a former part-time instructor from the South Bend who's accusing the school of failing to hire her full-time because she is a lesbian.

The suit was dismissed in July because federal law doesn't protect employees from workplace discrimination based on sexual orientation. The 7th U.S. Circuit Court of Appeals in Chicago last week agreed to review the case again. Judges won't examine whether Kim Hively has evidence of discrimination but rather whether she should be allowed to try to prove the claims, the IndyStar reported.

Ivy Tech denies the allegations.

"Ivy Tech Community College values and embraces diversity," Fanter wrote in an email. "It is an equal opportunity employer that does not condone, and in fact explicitly prohibits, employment discrimination based upon a person's sexual orientation."

Posted by Marcia Oddi on October 19, 2016 08:47 AM
Posted to Ind. (7th Cir.) Decisions | Indiana Government

Tuesday, October 18, 2016

Ind. Decisions - Court of Appeals issues 1 opinion(s) today (and 7 NFP memorandum decision(s))

For publication opinions today (1):

In State of Indiana ex rel. Indiana Department of Transportation v. Joshua Dehaven and FBi Buildings, Inc. , a 10-page opinion, Judge Riley writes:

Appellant-Plaintiff, State of Indiana, ex rel. Indiana Department of Transportation (INDOT), appeals the trial court’s denial of its motion for summary judgment in favor of Appellees-Defendants, Joshua DeHaven and FBi Buildings, Inc. We affirm.

INDOT raises two issues on appeal, one of which we find dispositive and which we restate as: Whether INDOT is entitled to recover, as a matter of law, the actual cost incurred to repair the bridge after DeHaven struck it with his trailer. * * *

INDOT contends that the trial court erred when it denied its summary judgment on damages. It asserts that as a tort victim, INDOT must be restored to the position it held prior to DeHaven’s negligence and, therefore, it is entitled to recover the actual cost of repairs, which constitute reasonable damages as a matter of law. However, Appellees respond that once INDOT submitted evidence of the costs to repair the damage to the bridge, Appellees “were afforded an opportunity to designate evidence establishing that the value of the damage sustained was less than the cost evidence tendered by [INDOT], . . . by demonstrating that INDOT had failed to reasonably mitigate its damages.” * * *

While we agree with INDOT that Appellees must take their victim as they find it, we also point out that a victim is under a duty to mitigate damages.

NFP civil decisions today (2):

In the Matter of the Guardianship of A.P., Adult, Louisa Jurich v. Louis Picicco (mem. dec.)

In Re the Matter of the Termination of the Parent-Child Relationship of: G.S. and B.S. (Minor Children), And N.S. (Father) v. The Indiana Department of Child Services (mem. dec.)

NFP criminal decisions today (5):

Cassidi Mosier v. State of Indiana (mem. dec.)

Richard Jones v. State of Indiana (mem. dec.)

Lynn K.C. Sines v. State of Indiana (mem. dec.)

Phillip D. Martin v. State of Indiana (mem. dec.)

Bennie Truth v. State of Indiana (mem. dec.)

Posted by Marcia Oddi on October 18, 2016 11:00 AM
Posted to Ind. App.Ct. Decisions

Ind. Gov't. - "We have come a long way since the days of sitting in the gallery and carefully noting floor votes by hand"

Although I remember those days, that is not the point of this long September Government Technology article by Eyragon Eidam. The point:

While the general design of a website is important to an end user, access to the meat of it all is the important part to government watchdog group the Sunlight Foundation.

“The advice that we have given, particularly as different government agencies come to us and [ask], ‘How can we make our website more functional?’ [is] we often point out that the best way to do this cheaply … is to improve the accessibility of your data so that at least it can get used,” said Sunlight Senior Analyst Emily Shaw.

In releasing data, whatever it may be, Shaw argues that other groups outside of government may be able to translate that data into usable information for other constituents. While an easy-to-navigate website is an added bonus, it means nothing if there’s no substance behind it.* * *

The Center for Data Innovation agrees that there’s work to be done in making more of the legislative process publicly available. Director (and GovTech columnist) Daniel Castro said there are gaps in the process, especially when it comes to things like scanning handwritten notes and committee votes.

He sees this as cause for collecting more digitally. “Right now in some states you’ll basically have handwritten changes to bills or things like that where it is not being captured electronically — especially committee votes — so it’s hard to actually see that process if the information isn’t digital. Capturing the data well in a digital format is another big thing we are looking at.”

In some states, bills are regularly posted as PDFs, which Castro said is a clear indicator that legislatures need to update their systems. The format can make finding information a laborious and difficult process.

“These types of things are a huge impediment to transparency,” he said.

Posted by Marcia Oddi on October 18, 2016 09:40 AM
Posted to Indiana Government

Ind. Gov't. - "Monroe County treasurer candidate's campaign signs go viral"

The story by Ernest Rollins is in the $$ Bloomington Herald-Times. A quote from the story:

Republican candidate for Monroe County treasurer Ann Collins has two billboards in Bloomington promoting her campaign. * * *

The billboards alert the public to a simple message about Collins’ campaign — “I won’t steal and I know how to count.” Collins said that message is a shorter version of her campaign slogan. She added it is meant to illustrate two things about her campaign to the voter in a simple, direct way: that she is qualified and she is an honest person.

Posted by Marcia Oddi on October 18, 2016 09:27 AM
Posted to Indiana Government

Law - Algorithms ... Is there a problem?

The ILB has had several earlier posts on the use of predictive algorithms in sentencing and in the use "black boxes" (proprietary software) in evidence determinations. Here are some related stories:

  • The NYT Book Review on Sunday had this about “Weapons of Math Destruction,” a new book by mathematician Cathy O’Neil:
    In a phone interview, she said part of what makes mathematics so dangerous is what makes it so alluring in the first place. Numbers offer the sheen of objectivity; algorithms seem to “transcend morality,” as O’Neil put it, when in fact they only obfuscate the human assumptions that go into creating them.

    “Every algorithm sorts winners and losers,” O’Neil said, which in turn exacerbates whatever inequality already exists. She points to recidivism risk scores, used by judges in sentencing decisions, as one of the most egregious examples. “Ironically,” she told me, “the reason they were introduced was to improve what was known to be a racist justice system.” The idea was that data and mathematical models would eliminate the influence of human bias. But the models include such inputs as whether an inmate’s friends and relatives have criminal records, and whether an inmate resides in a “high-risk” neighborhood. The algorithms, in other words, are built on the system they were meant to reform — benefiting those from privileged backgrounds and trapping almost everyone else in a pernicious feedback loop. “We have a new technology that we don’t have safety standards for,” O’Neil said about these “weapons of math destruction.” “We had to build a concept for a safe car. We had to test for safety. We have to do that with algorithms as well.”

  • "Algorithms Aren’t Biased, But the People Who Write Them May Be: Mathematical models that create rankings often use proxies to stand in for things the modelers wish to measure but can’t," is an Oct. 14th $$ WSJ article by Jo Craven McGinty, referencing the same book. A few quotes:
    In particular, she is concerned about mathematical models that rank or score individuals, institutions or places, often by using proxies to stand in for things the modelers wish to measure but can’t.

    College rankings, for example, approximate the quality of education by using metrics such as admission rates and alumni donations. Recidivism scores measure the likelihood a criminal will commit future offenses based on information such as whether friends or relatives have criminal histories. Predictive policing forecasts future crime based on past enforcement.

    The algorithms are what Dr. O’Neil calls “weapons of math destruction.” WMDs, she says, share three characteristics: They are biased. They are opaque. And they are scalable. * * *

    In her book, Dr. O’Neil criticizes recidivism scores for convicted criminals because the formulas often are complicated and may use information that would be inadmissible in court, and she condemns predictive policing, noting that arrests don’t offer a complete picture of crime, or even a reliable random sample, so some areas get a free pass while others are disproportionately targeted.

  • The WSJ article points to an article on predictive policing in this month’s Significance magazine—a publication of the U.K.’s Royal Statistical Society and the American Statistical Association.

  • A Sept. 13th article, "The great question of the 21st century: Whose black box do you trust?" by Tim O'Reilly begins:
    Some years ago, John Mattison, the Chief Medical Information Officer of Kaiser Permanente, the large integrated health provider, said to me, "The great question of the 21st century is going to be 'Whose black box do you trust?'" Mattison was talking about the growing importance of algorithms in medicine, but his point, more broadly, was that we increasingly place our trust in systems whose methods for making decisions we do not understand. (A black box, by definition, is a system whose inputs and outputs are known, but the system by which one is transformed to the other is unknown.)

    A lot of attention has been paid to the role of algorithms in shaping the experience of consumers. Much less attention has been paid to the role of algorithms in shaping the incentives for business decision making.

    For example, there has been hand-wringing for years about how algorithms shape the news we see from Google or Facebook. Eli Pariser warned of a "filter bubble" in which the algorithm takes account of our preferences and continues to feed us more of what we already want to hear, rather than exposing us to other points of view. This is a real risk - though one that search engines and social media companies are making efforts to overcome.

    But there's a deeper, more pervasive risk that came out in a conversation I had recently with Chris O'Brien of VentureBeat. And that is the way that algorithms also shape the choices made by writers and publishers. Do you write and publish what you think is most newsworthy, or what will get the most attention on social media?

Posted by Marcia Oddi on October 18, 2016 08:55 AM
Posted to General Law Related

Monday, October 17, 2016

Environment - "Indiana wind turbines blades revolving slower to protect endangered bats"

Christopher Stephens of CNHI News Service reports in a long story that begins:

ELWOOD — With Halloween just around the corner, it’s not unusual to see a plastic bat hanging from a doorway or window.

But for many of the real-life nocturnal mammals in Indiana, October also means migration season and a potential for mass killing of the animal by wind farms.

Between 600,000 and 900,000 bats are killed in the United State each year by wind turbines, according to a study published in the academic journal Bioscience. Many are killed through collisions with whirling blades or through barotraumas, the technical term for internal injuries to an animal when it passes through low-pressure zone created in the wake of a spinning turbine.

“Wind farms really impact the migratory bats – they are getting absolutely hammered,” said Tim Carter, who runs Ball State University’s bat laboratory.

Though all migratory species of bats are susceptible, the deaths in Indiana are particularly damaging to the endangered Indiana bat and northern long-eared bat, which are already facing declining numbers because of the deadly white-nose fungal disease that is decimating Hoosier roosting areas.

More from the leng story:
The Fowler Ridge Wind Farm, which operates 355 turbines in Benton County, worked with the U.S. Fish and Wildlife Service to develop a plan to reduce fatalities by 50 percent. The plan requires that turbines be shut down and turned perpendicular to the wind during low-wind times between sunset and sunrise.

Last year, 118 bat carcasses were found around turbines between Aug. 1 and Oct. 14, according to the company’s take report.

The idea behind Incidental Take Permits is to mitigate deaths while still allowing the clean-energy companies to operate economically, Georgia Parham, a representative of the U.S. Fish and Wildlife Service, said.

Posted by Marcia Oddi on October 17, 2016 02:53 PM
Posted to Environment

Ind. Law - "Counselor: Sexting issue has reached 'boiling point' among youths"

Rebecca R. Bibbs of The Anderson Herald Bulletin has a long story on sexting and efforts to education young people about the legal implications. Some quotes:

ANDERSON – The questions asking whether young people could be arrested for possession or distribution of child pornography and be labeled a sex offender popped up on the screen in the darkened band room at Highland Middle School.

As they did, 30 or so girls twittered among themselves, hitting a button on their Chromebooks to answer whether they thought the statements were true or false.

“Two children exchanging sexts, that’s illegal,” confirmed Julie Coon of Kids Talk. A program of Aspire, Kids Talk allows children to discuss abuse they have experienced in a safe environment.

She spent four days at the school ushering each student through one of six sessions on sexting and social media use. The program is one used for the first time at middle schools throughout Madison County. * * *

Though most people may associate sexting primarily with cellphone use, the term also can apply to the transmission of images and written messages by way of email, instant messaging and social media. The term can apply to the person who creates the image or message, the recipient of the image or message or a person who forwards an image or message.

“Sexting has become such a big issue among youth in Madison County, it’s reached a boiling point,” Coon said.

She said many young people reported they didn’t understand the transmission of nude or semi-nude images was against the law.

“One of the reasons we created the program is to take that excuse away,” she said.

Posted by Marcia Oddi on October 17, 2016 01:58 PM
Posted to Indiana Law

Law - "Missing From Hacked Emails: Hillary Clinton Herself"

This story on p. 6 of today's $$ WSJ, reported by Peter Nicholas, Colleen McCain Nelson and Byron Tau, gives valuable insight into the Clinton campaign's decision-making process. A sample:

The emails, hacked from campaign chairman John Podesta’s private account, depict an operation that treats Mrs. Clinton as something of a board chairman or perhaps a sitting president. There is a formality to dealings with the ex-first lady and secretary of state. Her own campaign manager, Robby Mook, has sent her notes addressing her as “Madame Secretary.” * * *

Conference calls with Mrs. Clinton have been highly scripted, emails show. Staffers planned out the agendas of calls in advance, according to the messages.

Calendar invitations included among the Podesta emails show calls with Mrs. Clinton that routinely included a wide circle of advisers. One call from March 2016 included 24 advisers, consultants and staffers. * * *

One of her closest confidants, Huma Abedin, said in an interview: “It does take a village to support Hillary Clinton.”

This seems a remarkable contrast to the opposition campaign.

Posted by Marcia Oddi on October 17, 2016 01:44 PM
Posted to General Law Related

Ind. Decisions - Court of Appeals issues 1 opinion(s) today (and 6 NFP memorandum decision(s))

For publication opinions today (1):

In Charles J. Davis Sr. v. Jay Phelps, Bartholomew County Clerk , a 4-page opinion, Judge Baker writes:

Charles Davis Sr. appeals the trial court’s order dismissing his complaint for failure to make a timely payment of filing fees. Finding that the trial court was statutorily required to give Davis forty-five days to make the payment, but gave him only thirty days, and that Davis made the required payment within fortyfive days, we reverse and remand. * * *

In this case, the trial court gave Davis only thirty days from the date of the order denying his motion for waiver of the partial filing fees to make the required payment. Based on the plain language of the relevant statute, Davis should have been afforded at least forty-five days. And the trial court did, in fact, receive Davis’s payment on April 11, 2016—less than forty-five days after March 2, 2016, when the order was entered. Given the plain language of Indiana Code section 33-37-3-3(d), we reverse the trial court’s order dismissing Davis’s complaint and remand with instructions to Davis to re-send the filing fee of $17.18 within forty-five days of the certification of this decision and for further proceedings.

NFP civil decisions today (0):

NFP criminal decisions today (6):

Mark T. Hager v. State of Indiana (mem. dec.)

Tyrice Halliburton v. State of Indiana (mem. dec.)

Mark A. Drescher v. State of Indiana (mem. dec.)

Warren Parks v. State of Indiana (mem. dec.)

Matthew S. Wagoner v. State of Indiana (mem. dec.)

Jeffrey S. Heironimus v. State of Indiana (mem. dec.)

Posted by Marcia Oddi on October 17, 2016 11:34 AM
Posted to Ind. App.Ct. Decisions

Ind. Gov't. - "A study of four Indianapolis area hospitals this year found one in five newborns were born with opiates — from heroin or prescription painkillers — in their bloodstreams"

Maureen Hayden of CHNI newspapers reports again on the opiate crisis in Indiana and other states. A sample:

[T]he overflow crowd that had gathered at the Indiana Convention Center were there for a grim reason: Tied by profession or interest in some way to the problem of drug addiction, they knew the opiate epidemic gripping Indiana appears to be getting worse, not better, as evidence by increasing reports of heroin and prescription painkiller overdoses this past year.

In Indianapolis alone, police and rescue workers are on a record pace to revive over 1,500 overdosed addicts this year.

That number only hints at the reality of addiction's harmful reach: A study of four Indianapolis area hospitals this year found one in five newborns were born with opiates — from heroin or prescription painkillers — in their bloodstreams and had to be treated for drug withdrawal.

"I don't have much reason to feel optimistic," said [Indiana Attorney General Greg Zoeller], who's been an ardent advocate of more resources for addiction prevention and treatment since soon after taking office.

Posted by Marcia Oddi on October 17, 2016 09:41 AM
Posted to Indiana Government

Ind. Decisions - "Widow wins $2M verdict against IU Health"

Shari Rudavsky has a good recounting of a trial court jury verdict in this Oct. 14th Indianapolis Star story. A sample:

Late last week, after deliberating for 2½ hours, a jury returned a $2 million verdict against Indiana University Health Methodist Hospital for Smith’s death in December 2006.

The decision, which took 10 years, in part because the first judge assigned to the case retired, came as long-awaited relief to Monica Smith, who lost her car and house after her husband died at age 45. Under Indiana law, the verdict will be capped at $1.25 million, but that doesn’t bother Smith.

“It’s never been about the financial part. It’s always been about justice for Vincent,” Smith said. “I’m glad I was able to get a jury to actually hear me. … They got to hear me. They got to hear what I was saying. They came back with the verdict I have always known I had.” * * *

In the middle of the night of Dec. 19, Smith was found unresponsive. Attempts to revive him using a drug to reverse the effects of morphine failed. Immediately after Smith died, the pump, which might have revealed how much morphine he had received, was cleaned and Smith’s data erased.

Scott Benkie, Monica Smith’s attorney, argued that in doing so the hospital destroyed data that could have been relevant in determining why Vincent Smith died, a legal term known as “spoliation of evidence.” An autopsy showed Smith had four times the average dose of morphine in his blood at the time of his death.

IU Health disputed the hospital had done anything wrong.

Hospital procedure called for pumps to go immediately for cleaning and redistribution as soon as they were available without recording any data from the device, hospital officials said.

Posted by Marcia Oddi on October 17, 2016 09:31 AM
Posted to Ind. Trial Ct. Decisions

Ind. Decisions - Transfer list for week ending October 14, 2016 [Updated]

Here is the Clerk's transfer list for the week ending Friday, October 14, 2016. It is one page (and 1 case) long.

One transfer granted last week:

  • Chuck W. Adams, Charles E. Howard, et al. v. ArvinMeritor, Inc., et al. - Transfer was granted, with opinion, on October 12, 2016. See the ILB opinion summary here.

ILB Note: The ILB transfer list entry for Oct. 7th commented:

Interestingly, as of this writing, the Oct. 3rd order of the Supreme Court denying transfer, by a vote of 3-2, in the Parkview Hospital case, is not listed on this Oct. 7th transfer list. The ILB wrote about the denial on Oct. 6th and Oct. 10th.
The Parkview transfer denial is not included in this week's new list either... Did including the Parkview denial on a transfer list simply slip through the cracks?

[Updated 10/18/16] The Court's October 7th transfer list has now been corrected with the addition to the list of the Oct. 3rd denial of transfer in the Parkview Hospital case.

Posted by Marcia Oddi on October 17, 2016 09:10 AM
Posted to Indiana Transfer Lists

Ind. Decisions - Upcoming oral arguments this week and next

This week's oral arguments before the Supreme Court (week of 10/17/16):

Thursday, October 20

  • 9:00 AM - State of Indiana v. David Brown (49S05-1606-CR-00348) During a bench trial, the trial court entered an order sustaining the defendant’s challenge to the admission of certain evidence. The State initiated an appeal, but the Court of Appeals dismissed and remanded after concluding the State lacked statutory authority to appeal. State v. Brown, No. 49A05-1506-CR-752 (Ind. Ct. App. Mar. 31, 2016) (mem. dec.), vacated. The Supreme Court has granted a petition to transfer the case and has assumed jurisdiction over the appeal.

    ILB: This was a NFP COA ruling from March 31, 2016 (which the ILB elected to summarize), where the COA sua sponte decided the State did not have authority to bring the appeal.

  • 9:45 AM - City of Lawrence Utilities Service Board, City of Lawrence, Indiana, and Dean Jessup, Individually and in his Official Capacity v. Carlton E. Curry (49S02-1609-CT-00481) A newly-elected mayor fired the superintendent of the city’s Utility Service Board. The superintendent brought this action for wrongful discharge and other claims, asserting Indiana Code section 8-1.5-3-5(d) gave the Utility Service Board exclusive authority to discharge him. The Marion Circuit Court granted the superintendent’s motion for summary judgment. A divided Court of Appeals reversed, finding the mayor had statutory authority to discharge the superintendent. City of Lawrence Utilities Serv. Bd. v. Curry, 55 N.E.3d 895 (Ind. Ct. App. 2016), vacated. The Supreme Court has granted a petition to transfer the case and has assumed jurisdiction over the appeal.

    ILB: This was a June 8, 2016, 2-1 COA opinion where the majority held:

    We find as follows: (1) the mayor had authority to terminate Curry’s employment; (2) as such, Curry has no right to prevail on an intentional interference with employment relationship claim; and (3) Curry is not entitled to recover under the Wage Payment Statute. We reverse the judgment of the trial court with respect to the wrongful discharge and intentional interference with employment relationship claims and remand with instructions to enter summary judgment in the Government’s favor on those two counts. We affirm the trial court’s order with respect to the Wage Payment Statute count.
  • 10:30 AM - Trondo L. Humphrey v. State of Indiana (53A01-1509-MI-01305) Trondo Humphrey was convicted of murder in 1996, and his conviction and sentence were affirmed on direct appeal. The Madison Circuit Court denied post-conviction relief. The Court of Appeals reversed, finding trial counsel rendered ineffective assistance. Humphrey v. State, 56 N.E.3d 84 (Ind. Ct. App. 2016), vacated. The Supreme Court has granted a petition to transfer the case and has assumed jurisdiction over the appeal.

    ILB: This was a June 23, 2016 COA opinion:
    "Trondo L. Humphrey appeals the denial of his petition for post-conviction relief. As his trial counsel’s assistance was ineffective and his petition is not barred by laches, we reverse and remand.

Next week's oral arguments before the Supreme Court (week of 10/24/16):

Thursday, October 27

  • 10:30 AM - Tresa Megenity v. David V. Dunn (22S04-1609-CT-00465) In a karate class, David Dunn executed a kick which allegedly injured Tresa Megenity. Megenity sued Dunn, claiming he was negligent. The Floyd Superior Court found Dunn did not breach any duty he owed Megenity, and granted him summary judgment, citing Pfenning v. Lineman, 947 N.E.2d 392 (Ind. 2011). A divided Court of Appeals reversed, holding a trier of fact must determine whether Dunn breached a duty to Megenity. Megenity v. Dunn, 55 N.E.3d 367 (Ind. Ct. App. 2016). The Supreme Court has granted a petition to transfer the case and has assumed jurisdiction over the appeal.

    ILB: This was a 2-1 May 24, 2016 COA opinion where the dissent writes:

    I respectfully dissent from the majority’s decision reversing the trial court’s summary judgment and holding that a genuine issue of material fact exists as to whether Dunn’s kick “was outside the range of ordinary behavior for a karate student engaged in a kicking-the-bag practice drill.”
    This argument will take place in the Emens Auditorium on the campus of Ball State University, 1800 W. Riverside Ave, Muncie, Indiana 47303 at 10:30 a.m. EDT.

Webcasts of Supreme Court oral arguments are available here.

This week's oral arguments before the Court of Appeals (week of 10/17/16):

Wednesday, October 19
  • 11:00 AM - Robertson v. Anonymous Clinic, et al. (71A03-1512-CT-02199) The case arises out of the administration of allegedly defective steroids that caused injury, with the injured plaintiffs suing the defendant medical providers. The manufacturer of the defective steroids is not a party. The central issue is whether allegations that the medical providers negligently decided to use the type of steroid and then failed to properly vet and investigate the manufacturer of the defective steroids are subject to the provisions of the Indiana Medical Malpractice Act (“MMA”) or are claims of simple negligence. The Department of Insurance, administrator of the Patient’s Compensation Fund, has intervened, arguing that the claims are simple negligence, while all parties argue that the allegations are subject to the MMA. The Scheduled Panel Members are: Judges Bradford, Pyle and Altice. [Where: Court of Appeals Courtroom (WEBCAST)]

Friday, October 21

  • 1:00 PM - Hannum Wagle & Cline Engineering et al. v. American Consulting (49A05-1601-PL-00033) American Consulting, Inc. d/ b/ a American Structurepoint, Inc. (”ASI”) filed a Verified Complaint for Injunctive Relief and Damages against Hannum Wagle & Cline Engineering, Inc., d/ b/ a HWC Engineering (”HWC”) and former ASI employees, (collectively ”Defendants”), alleging Defendants had engaged in a calculated scheme to raid ASI of employees and to target ASI’s customers for the purpose of unfairly competing with ASI and impermissibly siphoning ASI’s business. After a hearing, the trial court issued a preliminary injunction on December 11, 2015, which was modified on January 25, 2016, and partially dissolved on May 20, 2016. HWC and Defendants appeal the granting of the preliminary injunction, and ASI appeals the granting of the petition to partially dissolve the injunction. Before this court are several questions: whether a preliminary injunction is appropriate, whether the alleged violations contravened the restrictive covenant, and whether the covenant has expired. The Scheduled Panel Members are: Judges Baker, Kirsch and Robb. [Where: Purdue Krannert Center for Executive Education, West Lafayette]

Next week's oral arguments before the Court of Appeals (week of 10/24/16):

Tuesday, October 25
  • 1:30 PM - Jill Polet, et. al. v. ESG Security, Inc., et. al. (49A02-1510-CT-1631) This case arises out of the 2011 Indiana State Fair stage collapse. On April 17, 2015, ESG Security, Inc., one of the Defendants, filed a motion for summary judgment and argued that it owed no duty to the Plaintiffs, did not breach any duty, and did not cause the Plaintiffs’ injuries. On September 14, 2015, the trial court granted ESG’s motion for summary judgment. On appeal, the Plaintiffs/Appellants argue that ESG had a duty to exercise due care when assuming responsibility for the safety and protection of those it served and that a jury must determine whether ESG breached its duty and whether and to what extent ESG proximately caused the injuries. The Scheduled Panel Members are: Judges Robb, Mathias and Brown. [Where: Court of Appeals Courtroom (WEBCAST)]

ONLY those Court of Appeals oral arguments presented in the Supreme or Court of Appeals Courtrooms generally will be accessible via videocast.

Past Court of Appeals oral arguments 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.

Posted by Marcia Oddi on October 17, 2016 09:01 AM
Posted to Upcoming Oral Arguments

Friday, October 14, 2016

Ind. Decisions - Court of Appeals issues 3 opinion(s) today (and 12 NFP memorandum decision(s))

For publication opinions today (3):

In William Brandon, Jr. and Sarah Brandon v. Buddy & Pal's III, Inc., d/b/a Buddy & Pal's Place and Thomas Walker, an 11-page opinion, Chief Judge Vaidik writes:

William Brandon Jr. was injured in a bar fight. He sued Thomas Walker—the person who hit him—and the bar where the fight occurred. Although Walker failed to file an answer and was found to be in default, Walker appeared for trial three years later and represented himself, disputing his liability. During closing argument, Brandon’s attorney urged the jury to find that the bar was 85% at fault and that Walker was only 15% at fault. The jury, however, found that Brandon himself was 100% at fault. Brandon then filed a motion to correct error arguing that the default established Walker’s liability and that the only thing left to be determined was damages. The trial court found that Brandon waived this issue.

We agree with the trial court that Brandon waived this issue. That is, because Brandon did not object to Walker participating in the trial, did not argue the effect of Walker’s default at trial, and asked the jury to find that Walker was 15% at fault, he cannot now fall back on the position that Walker is 100% at fault (based on the default). We therefore affirm the trial court.

In Kent R. Blair, Sr. v. State of Indiana, a 12-page opinion, Judge Robb writes:
Following a bench trial, Kent Blair was convicted of invasion of privacy, a Level 6 felony, and criminal trespass, a Class A misdemeanor. The trial court sentenced Blair to one and one - half years executed in the Indiana Department of Correction. Blair ap peals his convictions and sentence, raising three issues for our review: (1) whether the evidence is sufficient to sustain his convictions, (2) whether the trial court abused its discretion in sentencing him, and (3) whether his sentence is inappropriate i n light of the nature of the offenses and his character. Concluding the evidence is sufficient, the trial court did not abuse its discretion in sentencing Blair, and his sentence is not inappropriate, we affirm.
In Adam K. Baumholser v. State of Indiana , a 13-page opinion, Judge May writes:
Adam K. Baumholser appeals his convictions of three counts of child molesting, one as a Class A felony and two as Class C felonies. As the admission of certain character evidence and forensic interviewer testimony was not fundamental error, and as Baumholser’s sentence was neither inappropriate nor an abuse of discretion, we affirm.
NFP civil decisions today (4):

In re the Termination of the Parent-Child Relationship of R.Q. and N.Q.: K.Q. (Mother) v. Indiana Department of Child Services (mem. dec.)

In the Matter of: V.K. (Minor Child), Child in Need of Services, and M.V. (Mother) v. The Ind. Dept. of Child Services; M.V. v. J.K. (mem. dec.)

In the Guardianship of S.S. and J.N., Minor Children, Marla New v. Kenneth Scrogham and Teresa Scrogham (mem. dec.)

Rachelle L. Purcell v. Gary A. Purcell (mem. dec.)

NFP criminal decisions today (8):

Walter Ward, III v. State of Indiana (mem. dec.)

Mark Madejek v. State of Indiana (mem. dec.)

Herbert Lee Brown, III v. State of Indiana (mem. dec.)

Ronald Weaver v. State of Indiana (mem. dec.)

Dakota Fraley v. State of Indiana (mem. dec.)

Jasmine Sivels v. State of Indiana (mem. dec.)

Richard Wilson v. State of Indiana (mem. dec.)

Matthew Weeks v. State of Indiana (mem. dec.)

Posted by Marcia Oddi on October 14, 2016 11:13 AM
Posted to Ind. App.Ct. Decisions

Law - "David McCraw, a newsroom lawyer for The Times, describes the mosaic of legal issues that he encounters on a typical day"

"FOIA, Subpoenas and Singapore’s Libel Laws: All in a Day’s Work," is the heading to this long "Times Insider" column from August 10, 2016. A sample:

Libel suits are rare — our only active case was just dismissed by a judge in New Orleans — but a steady stream of complaint letters find their way to my desk and need to be dealt with. Some are rants, some are detailed and well-researched lawyer letters. And then there is the person who claims to have uncovered a secret code in a Tweet posted by a Times columnist.

In recent years, I have spent increasing amounts of time waging legal battles against secrecy, seeking to open court files or get documents for our reporters through the Freedom of Information Act. We sue — a lot. And we’re pretty much alone. The last time we checked the statistics, The Times had filed 14 federal FOIA suits over a two-year period; our peers in the mainstream media had filed a total of six altogether.

This column became newly relevant because of the letter New York Times VP and Assistant General Counsel David McCraw sent to Donald Trump’s legal team in response to a retraction request about The Times’s article "Two Women Say Donald Trump Touched Them Inappropriately."

Posted by Marcia Oddi on October 14, 2016 10:55 AM
Posted to General Law Related

Courts - "Louisville panhandling law struck down"

Recall this August 9, 2015 ILB post headed "7th Circuit Invalidates Anti-Panhandling Ordinances After Reed v. Town of Gilbert" and this August 17, 2015 update.

Today Andrew Wolfson reports in the Louisville Courier Journal:

One day before the Kentucky Supreme Court weighs the constitutionality of Lexington’s panhandling ordinance, a Jefferson District Court judge Thursday struck down Louisville’s ordinance.

Judge Eric Haner held that Louisville’s “aggressive panhandling” ordinance enacted in 2007 is unconstitutional because any crime that carries the penalty of incarceration must be the product of the General Assembly. * * *

In the case pending before the state Supreme Court, an attorney for Dennis Champion also argues that the ordinance usurps the power of the legislature to enact criminal laws. Champion’s lawyer, Linda Roberts Horsman, says the Lexington ordinance is “patently unconstitutional because it criminalizes speech” in violation of the First Amendment.

There is much to read in both today's story and the linked earlier story on the case pending before the Kentucky Supreme Court.

Posted by Marcia Oddi on October 14, 2016 09:57 AM
Posted to Courts in general

Ind. Gov't. - "State PAC advises Newburgh to provide public emails to C&P"

Shannon Hall reports today in the Evansville Courier & Press (C&P):

After attempting to charge the Courier & Press hundreds of dollars for access to Newburgh town emails, the town will provide the emails at no cost after the Indiana Public Access Counselor considered it a block of access.

"We received the ruling and we are prepared to provide you with your requested emails. We will get with our IT contractor to pull the emails off the server at no charge per the opinion of the public access counselor," Newburgh Town Manager Christy Powell states in an email sent Thursday.

Later Thursday, Powell issued this statement:

"As you know, the Town of Newburgh is always prepared to provide requested public records in a timely manner. The only question was one of who should bear the cost of these requests, the requester (In this case The Courier) or the taxpayers," the statement reads. "The Public Access Counselor has determined that it is the taxpayers. The Town will abide by the ruling and will charge the Courier only $.10 per page as required by the opinion."

In his decision, the access counselor said Newburgh's attempt to charge hundreds of dollars was, in effect, an attempt to charge the taxpayers twice for a single service.

In August, the Courier & Press requested digital copies for all emails between Newburgh police commission members -- Tonya McGuire, Bill Kavanaugh and Leanna Hughes -- from July 1-31. Powell responded concerning the cost of the request, saying if the Courier & Press wanted emails off the town's servers it would require the town's IT contractor, PC Quest, to retrieve the emails at a rate of $90 an hour.

"This cost will be passed on to the Courier," the August email states.

A PC Quest employee told the town the request would take about six to eight hours, costing $540 to $720. * * *

The town considered the cost of having the contractor to retrieve the emails as a direct cost, which would allow them to pass the cost to the Courier & Press as the requester. The public access counselor disagreed.

"If the town chooses to provide you the information on a thumb drive or a compact disc, it may charge 105 percent of the cost of the CD or flash drive and any labor to drag and drop the .pdf files onto the actual medium," Luke Britt, Indiana's Public Access Counselor, states in his advisory opinion. "This would be a fairly negligible cost and would not come close to approaching the price quoted to you."

The story links to the PAC opinion (and background documents).

(As of this writing, the opinion is not available on the PAC site, but when it is, this link should reach it directly.)

ILB comment: The lesson here may be to ask for the file that results from the search for the emails to be provided digitally on a flash drive.

Otherwise, each individual email and iteration thereof may be printed out and provided in paper form, or printed out and scanned and then provided as an individual pdf document, all at a rate of $0.10/page.

Posted by Marcia Oddi on October 14, 2016 09:26 AM
Posted to Indiana Government

Ind. Decisions - Updating "Appeals court says video 'indisputably contradicts' South Bend police testimony"

Updating yesterday's ILB post, the ILB has now located a link to the police dashboard camera video that is at the center of the dispute.

It is available in this September 9, 2016 South Bend Tribune story on the Court of Appeals opinion.

Posted by Marcia Oddi on October 14, 2016 09:01 AM
Posted to Ind. App.Ct. Decisions

Thursday, October 13, 2016

Ind. Decisions - Still more on "Appeals court says video 'indisputably contradicts' South Bend police testimony"

Updating earlier ILB posts on the 2-1, Sept. 8th Court of Appeals opinion in Royce Love v. State of Indiana, Christian Sheckler reports today in the South Bend Tribune in a story that begins:

The Indiana attorney general's office this week blasted the state Court of Appeals for accusing South Bend police officers of giving false testimony about a man's 2013 arrest.

The state filed a petition Tuesday asking the Indiana Supreme Court to reinstate Royce Love's convictions for forcibly resisting law enforcement and mistreating a police dog. Last month, the lower appellate court reversed Love's convictions after finding that video evidence "indisputably contradicts" officers' sworn statements about the arrest.

The officers testified that Love was "extremely combative" and tried to walk away after leading police on a vehicle chase. But in a 2-1 decision, the appellate court said a police dashboard camera showed that Love surrendered before officers used Tasers, deployed a dog and kicked him.

In a petition to the Supreme Court, Deputy Attorney General Ellen Meilaender wrote that the appellate court majority went beyond its authority by re-weighing evidence that was already considered by a jury.

Meilaender also wrote that the video was too dark, blurry and obscured to support allegations that the officers gave false testimony.

ILB: Here is the appellate docket in the case. Here is the State's petition to transfer.

Posted by Marcia Oddi on October 13, 2016 01:43 PM
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Court of Appeals issues 1 opinion(s) today (and 5 NFP memorandum decision(s))

For publication opinions today (1):

In Danny Sims v. Andrew Pappas and Melissa Pappas, a 16-page opinion, Sr. Judge Shepard writes:

During a trial over damages caused by a drunk driver, the defendant acknowledged his intoxication and responsibility for the collision. He objected to admitting evidence about two decades-old convictions for alcohol-related offenses. The objection was overruled and the jury ultimately returned a verdict, mostly for compensatory damages.

While we do not embrace his proposal that prior convictions should be barred outright as they mostly would be in a criminal trial, we conclude that in this case they neither proved nor disproved any facts that were central to the main questions the jury decided – compensatory damages and loss of consortium. As they were not relevant to these issues and unfairly prejudicial (though probably not to the question of punitive damages), we reverse and order a new trial. * * *

The trial court erroneously admitted evidence of Sims’ prior alcohol-related convictions from 1983 and 1996, and the error was not harmless. The trial court’s judgment entered on the jury verdict is reversed and this cause is remanded for retrial.

Riley, J., concurs.
Altice, J., dissenting with separate opinion. [that begins, at p. 13] I agree with the majority’s conclusion that the ten-year limit set out in Ind. Evidence Rule 609 does not apply in this context. I cannot agree, however, with the majority’s ultimate conclusion, based on an Ind. Evidence Rule 403 analysis, that the trial court abused its discretion by admitting evidence of Sims’s 1983 and 1996 prior alcohol-related offenses. * * *

Though relevant to the issue of punitive damages, the prior convictions’ remoteness in time does tend to diminish their probative value. In my mind, however, this should go to the weight of the evidence rather than its admissibility, and I cannot say that the trial court abused its discretion in this regard. See Spencer v. State, 703 N.E.2d 1053, 1056 (Ind. 1999) (even though remote crimes had low probative value and the Court was “inclined to think this evidence should not have been admitted”, the Court found no abuse of discretion in the trial court’s admission of the evidence). Accordingly, I respectfully dissent.

NFP civil decisions today (0):

NFP criminal decisions today (5):

Sam Milligan v. State of Indiana (mem. dec.)

T.G. v. State of Indiana (mem. dec.)

Thomas King v. State of Indiana

Fronse W. Smith, Jr. v. State of Indiana (mem. dec.)

Dennis Linderman v. State of Indiana (mem. dec.)

Posted by Marcia Oddi on October 13, 2016 11:59 AM
Posted to Ind. App.Ct. Decisions

Env. - "Vermont Wind Project Needs Support, So Company Offers to Pay Voters"

Wind farms and turbines continues to be a topic of discussion nationwide, here is a list of some of the ILB entries re Indiana.

Today Katharine Q. Seelye of the NY Times has a lengthy story on a New England project, Some quotes:

WINDHAM, Vt. — To many residents in this tiny town in southern Vermont, the last-minute offer of cash was a blatant attempt to buy their votes.

To the developer that offered the money, it was simply a sign of how attentively the company had been listening to voters’ concerns.

The company, Iberdrola Renewables, a Spanish energy developer, wants to build Vermont’s largest wind project on a private forest tract that spans Windham and the adjacent town of Grafton. The project would consist of 24 turbines, each nearly 500 feet tall, and generate 82.8 megawatts of power, enough to light 42,000 homes for a year if the wind kept blowing, though the houses could be in Connecticut or Massachusetts.

Residents of the two towns will vote Nov. 8 on whether to approve the project, which has pitted neighbor against neighbor. No one knows which way the vote will go. * * *

At the meeting, which drew more than 100 residents, the developer shared its new plan. It reduced the number of turbines to 24 from 28 and increased the money paid to Windham to $1 million from $715,000 a year for the 25 years. The payments would cut property taxes in half and provide $150,000 a year for charities, fire departments and educational scholarships.

The company said it would also set aside $350,000 each year for direct payments to Windham’s 311 registered voters — $1,125 apiece annually, or $28,135 over 25 years, which a voter could accept or not.

In Grafton, the company set aside $215,000 for voter payments. The town’s 504 registered voters would each receive $427 a year, or $10,665 over 25 years. (Windham would have 16 turbines and Grafton eight.)

Asked if the company was trying to buy votes, a spokesman, Paul Copleman, said that Iberdrola was merely responding to what residents had said they would need to win approval, and that the developer would abide by the result.

In an email later, he added, “Our current proposal is based on feedback from community members who are frustrated that the tax relief from the project would give a larger break to those with more expensive properties.”

Kathy Scott, 74, a retired bookkeeper and one of the Windham residents who negotiated the package, said residents, not the company, came up with the idea of payments.

She said her group saw them as a way to “level the playing field” with second-home owners, many of whose homes have high assessments and who would benefit more from the tax cuts. (Although second-home owners pay 60 percent of the town’s taxes, they cannot vote here, a sore point for them.)

Opponents were outraged at the payments, perceiving them as an attempt to buy votes, and complained to state officials.

Posted by Marcia Oddi on October 13, 2016 08:39 AM
Posted to Environment

Wednesday, October 12, 2016

Ind. Gov't. - "Pence inaction on pardons confusing"

Niki Kelly, who has written a number of stores on Indiana gubernatorial pardons (see ILB posts from Dec. 22, 2014, Sept. 4, 2013 and Jan. 8, 2012, reports this afternoon in the Fort Wayne Journal Gazette in a long story that begins:

INDIANAPOLIS - The man touting grace and forgiveness for running mate Donald Trump has been stingy granting that mercy to those seeking pardons in Indiana.

Gov. Mike Pence has issued only three pardons in nearly 4 years.

In comparison former Gov. Mitch Daniels - who claimed to have the lowest pardon percentage of any governor - issued 62 pardons in eight years. That's about 8 a year.

The Journal Gazette contacted Pence's office Tuesday for a response and had not yet received a statement.

Pence has denied 39 pardons and another 20 are awaiting action.

That includes the now-infamous pardon request of Keith Cooper - a man who spent nine years in prison for a crime it appears he didn't commit.

He hasn't been officially exonerated by a court though DNA evidence tied another man to the crime; eyewitnesses have recanted and the deputy prosecutor in the case has urged pence to pardon Cooper.

"I feel like if this petition had been filed under Daniels he would have had the courage to grant it," said Cooper's attorney, Elliot Slosar.

Pence has total discretion on whether to give pardons, which is essentially executive forgiveness. It is often sought to allow a former offender to move past the restrictions a felony conviction holds - like being unable to get certain jobs or certifications, as well obtain a firearm carry permit.

Posted by Marcia Oddi on October 12, 2016 03:04 PM
Posted to Indiana Government

Ind. Decisions - 7th Circuit decides one Indiana case today, relying on res ipsa loquitur

In James Blasius v. Angel Automotive Inc (ND Ind., Van Bokkelen), a 27-page opinion, Judge Blakey (ND Ill., sitting by designation) writes:

In July 2009, Appellant James Blasius purchased a used 2005 Ford Excursion. In June 2012, Blasius entrusted Appellee Angel Automotive, Inc. (“AAI”) with upgrading the vehicle to make it “safe” and “reliable.” Blasius alleges that AAI negligently betrayed that trust when, one day and about 200 miles after pick up, the vehicle caught fire and was destroyed. The district court granted summary judgment for AAI after concluding that: (1) Blasius failed to present evidence that AAI’s work proximately caused the fire; and (2) the doctrine of res ipsa loquitur did not apply. Blasius appealed. For the reasons explained be‐ low, the decision of the district court is REVERSED. * * *

Our ruling, of course, takes no position regarding Appellant’s ability to link his vehicle fire to AAI’s conduct by a preponderance of the evidence at trial, nor do we opine up‐ on the strength of Appellant’s negligence claim as a whole. Such a determination rightfully belongs in the hands of the fact finder at trial. At present, it is enough to say that a genuine issue of material fact exists as to the proximate cause of the fire that consumed Blasius’ vehicle, and that, for the purpose of settling that dispute, Appellant is entitled to rely on the doctrine of res ipsa loquitur.  

For these reasons, the judgment of the district court is REVERSED and REMANDED for further proceedings con‐ sistent with this opinion.  

Posted by Marcia Oddi on October 12, 2016 01:50 PM
Posted to Ind. (7th Cir.) Decisions

Ind. Decisions - Supreme Court decides one today

In Chuck W. Adams, Charles E. Howard, et al. v. ArvinMeritor, Inc., et al., a 3-page, 5-0, per curiam opinion, the Court writes:

Adams and Howard filed a complaint alleging among other things that they are owed unpaid wages because they were not paid the “prevailing wage” for their work. Indiana Code section 11-10-7-3 provides that “an offender employed by a private person under this chapter will be paid at least the prevailing wage for that type of work . . . including applicable wage increases for overtime work.” Meritor Heavy Vehicle Systems and all its related companies, officers, and employees named as defendants (collectively “Meritor defendants”), and the State defendants1 filed motions to dismiss the wage claims, arguing in part that Indiana Code chapter 11-10-7 does not create a private right of action. The trial court granted the motions and dismissed the claims.

A majority of the Court of Appeals reversed, concluding Adams and Howard have a private right of action under section 11-10-7-4, which provides that an enterprise operating under chapter 11-10-7 “is a private enterprise subject to laws governing the operation of similar enterprises in Indiana.” Adams v. ArvinMeritor, Inc., 48 N.E.3d 1, 8-9 (Ind. Ct. App. 2015), aff’d on reh’g by, 53 N.E.3d 1182 (Ind. Ct. App. 2016). The majority noted that private enterprises are subject to the Wage Payment Statute, which allows an employee to file an action in court to collect unpaid wages. See I.C. § 22-2-5-2. And the majority concluded Adams and Howard may pursue their wage claims. Adams, 48 N.E.3d at 9.

Judge May dissented on this issue, concluding the trial court properly dismissed the wage claims because Indiana Code section 11-10-7-4 did not explicitly create a private right of action for offenders to pursue wage claims. Id. at 16, and 53 N.E.3d at 1184 (May, J., dissenting in part). The Meritor defendants seek transfer. We agree with Judge May. We grant transfer, adopt and incorporate by reference the dissent’s original and rehearing opinions addressing the wage claims, see Ind. Appellate Rule 58(A)(1), and affirm the trial court’s dismissal of these claims. We summarily affirm those parts of the Court of Appeals opinions addressing Adams’s other claims. See App. R. 58(A)(2).

Posted by Marcia Oddi on October 12, 2016 01:30 PM
Posted to Ind. Sup.Ct. Decisions

Law - "Facebook, Twitter and Instagram sent feeds that helped police track minorities in Ferguson and Baltimore, ACLU says"

Craig Timberg and Elizabeth Dwoskin report today in a Washington Post story that begins:

A powerful surveillance program that police used for tracking racially charged protests in Baltimore and Ferguson, Mo., relied on special feeds of user data provided by Twitter, Facebook and Instagram, according to an ACLU report Tuesday.

The companies provided the data — often including the locations, photos and other information posted publicly by users — to Geofeedia, a Chicago-based company that says it analyzes social media posts to deliver real-time surveillance information to help 500 law enforcement agencies track and respond to crime. The social media companies cut off Geofeedia’s access to the streams of user data in recent weeks after the ACLU discovered them and alerted the companies about looming public exposure.

The popularity of Geofeedia and similar programs highlights how the rise of social media has given governments worldwide powerful new ways to monitor crime and civil unrest.

Posted by Marcia Oddi on October 12, 2016 11:30 AM
Posted to General Law Related

Ind. Decisions - Court of Appeals issues 1 opinion(s) today (and 8 NFP memorandum decision(s))

For publication opinions today (1):

In Brenda K. (Layman) Smith and John C. Smith v. Dunn Hospitality Group Manager, Inc. d/b/a Comfort Inn, a 9-page opinion, Judge Riley concludes:

The Smiths contend that the relevant provisions of the Innkeeper Statute are not applicable because “[t]he Comfort Inn’s agents facilitated the theft of the Smiths’ property.” (Appellants’ Br. p. 11). To support their argument, the Smiths rely on a negligence theory to state that “[t]he fact that the Smiths’ personal property was removed from their room and disposed of without their consent or financial benefit clearly establishes injury proximately caused by the Comfort Inn’s act in allowing an unauthorized third party access to the Smiths’ room.” (Appellants’ Br. p. 13). Nevertheless, besides the assertion in the Complaint that the Comfort Inn allowed Crawley to enter their room, the designated evidence is void of any indication that the Comfort Inn or its agents conspired with Crawley to commit a theft of the Smiths’ property. In fact, by specifically relying on a negligence theory in an attempt to establish an intentional tort or criminal activity on the part of the Comfort Inn, the Smiths place their situation squarely within the statutory provision of I.C. § 32-33-7-3. Therefore, we agree with the trial court that no genuine issue of material fact exists that would prevent entering summary judgment in favor of the Comfort Inn.
NFP civil decisions today (3):

In the Matter of A.J.T. (Minor Child) M.T. (Father) v. J.R. (mem. dec.)

In Re: The Paternity of A.R. (Minor Child) A.R. (Minor Child) by Next Friend, C.T., III v. J.R. (mem. dec.)

In the Matter of the Termination of the Parent-Child Relationship of S.C., Minor Child, and S.J., Father, S.J. v. Indiana Department of Child Services (mem. dec.)

NFP criminal decisions today (5):

State of Indiana v. Christopher J. Basinger (mem. dec.)

Bryant Hughes v. State of Indiana (mem. dec.)

Arnell Lyles v. State of Indiana (mem. dec.)

Emmanuel Arrington v. State of Indiana (mem. dec.)

Charles Anthony Hardy, Jr. v. State of Indiana (mem. dec.)

Posted by Marcia Oddi on October 12, 2016 11:07 AM
Posted to Ind. App.Ct. Decisions

Courts: "In an immigration court that nearly always says no, a lawyer’s spirit is broken"

By Chico Harlan in the Washington Post, a must read story.

To understand why, just view this graphic from the story, "Odds of winning asylum swing from court to court," and focus on the Atlanta district, where the subject of the story, "Elizabeth Matherne had been practicing immigration law for four years."

Posted by Marcia Oddi on October 12, 2016 10:37 AM
Posted to Courts in general

Ind. Gov't. - "Allowing guns in parks proposed" in Fort Wayne

Dave Gong reports in the Fort Wayne Journal Gazette:

An ordinance introduced during Tuesday’s Fort Wayne City Council meeting would remove language in the city code prohibiting residents from carrying firearms in city parks.

Introduced by Councilman Jason Arp, R-4th, the measure would amend a section of the Fort Wayne city code related to the Parks and Recreation Department to remove firearms from a list of prohibited items that includes fireworks, firearms, BB guns, slingshots, pea shooters, blow guns and paintball guns.

As currently written, the ordinance violates state law regarding the regulation of firearms, Arp said. * * *

Through his proposal, Arp contends that state law prohibits local government units from regulating firearms. Arp said he believes the change, in addition to being in compliance with state law, will be good public policy. * * *

According to Indiana Code 35-46-11.1-2, local governments may not regulate firearms, ammunition and firearm accessories, or their ownership, possession, carrying, transportation, registration, transfer or storage. But state law does allow local governments to prohibit or restrict firearm possession at hospitals and in places such as the Allen County Courthouse or Citizens Square.

ILB: This story may sound familiar to many ILB readers who recall similar issues involving Hammond and Evansville.

In the Hammond case, a 3/15/13 COA opinion in Samuel G. Dykstra and Michelle L. Bahus v. The City of Hammond, the City of Hammond was sued because it did not remove from its books "city gun restrictions now voided by state law. ... The ordinances had restricted guns from city buildings or at any city board or commission meeting." The Court of Appeals held: "We hold that the trial court did not err in denying the Firearm Owners’ motion for summary judgment and granting summary judgment in favor of the City of Hammond.." As the ILB wrote at the time:

Interestingly, however, the COA designated the opinion as "Not for Publication." This although Appellate Rule 65(A) provides that a Court of Appeals opinion shall be published if it "involves a legal or factual issue of unique interest or substantial public importance."

What is the significance of a NFP designation? Under Rule 65(D): "Unless later designated for publication, a not-for-publication memorandum decision shall not be regarded as precedent and shall not be cited to any court ..."

The Supreme Court later denied transfer in Dykstra. As this July 17, 2013 ILB post reports:
Included, unremarked, on the transfer list for the week ending July 12, 2013 (on p. 2, 3rd from the bottom) was the case of Samuel G. Dykstra and Michelle L. Bahus v. The City of Hammond (NFP - initially, but then changed to "for publication"). Transfer was denied, leaving the Court of Appeals opinion standing.
The long July 17, 2013 post then goes on to discuss the Evansville case, Magenheimer.

Posted by Marcia Oddi on October 12, 2016 10:05 AM
Posted to Indiana Government

Ind. Decisions - More on: 7th Cir. to rehear Ivy Tech anti-gay employment discrimination case en banc

Updating this ILB post from yesterday, here is a story by Michael Tarm of the AP, headed " Court vacates Ivy Tech sexual-orientation bias ruling: Former college instructor claims discrimination." A quote from the story:

Civil rights groups said in filings calling on the 7th Circuit to do what it has now done that Hively's case is a chance "to correct its outdated and unworkable interpretation" Title VII of the 1964 Civil Rights Act and to expand the scope of its protections to include LGBT workers.
Here is a story from Madeline Buckley of the Indianapolis Star. Some quotes:
The fight isn't over yet for a South Bend woman who was told by a court that she could not sue Ivy Tech Community College because federal law does not protect sexual orientation from workplace discrimination.

The 7th U.S. Circuit Court of Appeals in Chicago on Tuesday agreed to take another look at the case brought by Kim Hively, a former part-time instructor at Ivy Tech who is accusing the community college of not hiring her full-time because she is a lesbian.

Hively sued Ivy Tech in 2014, but her case was dismissed. Though federal law protects employees from discrimination based on race, sex, religion, color and national origin, it does not offer protection from discrimination based on sexual orientation. In July, a panel of three 7th Circuit judges had upheld the dismissal, though they criticized the fact that sexual orientation is not included in workplace protections guaranteed under Title VII of the Civil Rights Act of 1964.

Now, the court on Nov. 30 will hear the case before its full panel of judges, the next step in the judicial process that allows Hively to continue fighting for her case. The court's earlier opinion is now vacated.

More from the story:
"It seems unlikely that our society can continue to condone a legal structure in which employees can be fired, harassed, demeaned, singled out for undesirable tasks, paid lower wages, demoted, passed over for promotions, and otherwise discriminated against solely based on who they date, love or marry," the July opinion read.

The judges will not be examining whether Hively has evidence that she was discriminated against at work because of her sexual orientation. Rather, the issue at hand right now is whether she should be allowed to try to prove those claims in the first place.

Posted by Marcia Oddi on October 12, 2016 09:47 AM
Posted to Ind. (7th Cir.) Decisions

Ind. Decisions - "Ohio Supreme Court Decision Clarifies Mineral Rights in Utica and Marcellus Shale Plays"

That is the heading of this Jones Day article in Lexology, subheaded "Law Does Not Provide for Automatic Vesting of Unused Mineral Interest Without Notice." What caught the ILB's eye was the reference to Indiana near the beginning [emphasis added by ILB]:

Many states have "dormant mineral" legislation providing for the transfer of severed mineral interests to the surface owner if the mineral owner does not develop the minerals or take other action manifesting an intent to preserve his interest over an extended period of time, typically 20 years. The basic purpose of such legislation is to promote the development of mineral resources by clearing title of unwanted mineral interests and eliminating the uncertainty about mineral ownership that can arise when many years of devise, descent, and conveyance leave oil and gas rights fragmented and disconnected from surface ownership.

Some of these statutes are expressly self-executing and provide for the automatic vesting of an unused mineral interest in the surface owner, without advance notice to the mineral owner. In 1982, the United States Supreme Court upheld Indiana's self-executing statute against a variety of constitutional challenges. Texaco, Inc. v. Short, 454 U.S. 516 (1982). Other statutes, including the Uniform Dormant Mineral Interests Act (1987), require the surface owner to take some action to reunite the mineral and surface estates.

Posted by Marcia Oddi on October 12, 2016 09:38 AM
Posted to Ind. Sup.Ct. Decisions

Tuesday, October 11, 2016

Ind. Decision - 7th Cir. to rehear Ivy Tech anti-gay employment discrimination case en banc [Updated]

The 7th Circuit has voted to rehear its 3-judge opinion in Kimberly Hively v. Ivy Tech Community College. Here, via Equality Case files, is the original, July 28th opinion, plus an August 3rd correction.

Here, via Lambda Legal, is today's order, "by the court," stating:

The Petition for Rehearing En Banc is GRANTED, and the panel's opinion and judgment are VACATED."
From the news release:
In August of 2014, Hively filed a lawsuit in a federal trial court against Ivy Tech Community College, arguing that the school violated Title VII of the 1964 Civil Rights Act when it denied her full-time employment and promotions on the basis of her sexual orientation. The trial court dismissed Hively’s lawsuit and held that Title VII does not protect employees from antigay discrimination.

In April 2015, Lambda Legal filed an appeal on Hively’s behalf seeking reversal and reinstatement of her complaint, but was denied by a panel of three judges in a decision issued July 28, 2016. Today the full Seventh Circuit Court of Appeals has agreed to rehear the case.

Here is the ILB summary of the July 28th opinion of the 7th Circuit.

Here is a July 29th ILB post quoting the Indianapolis Star, and here are quotes from an August 2nd editorial in the Fort Wayne Journal Gazette.

[Updated per EQCF]
Oral argument now set for Nov. 30, 2016 before the full court.

Posted by Marcia Oddi on October 11, 2016 04:10 PM
Posted to Ind. (7th Cir.) Decisions

Ind. Decisions - Court of Appeals issues 1 opinion(s) today (and 2 NFP memorandum decision(s))

For publication opinions today (1):

In Allen County Plan Commission, et al. v. Olde Canal Place Association, et al., a 9-page opinion, Judge Altice writes:

MRK II, LLC and Max R. Kendall (collectively, MRK) and t he Allen County Plan Commission (the Commission) appeal from the trial court’s order granting Canal Place Association and its members (collectively, OCPA ) relief from judgment under Ind. Trial Rule 60(B)(1). On appeal, MRK and the Commission argue that the trial court abused its discre tion in granting relief because OCPA cannot establish a meritorious claim as required by T.R. 60(B)(1).

We reverse and remand with instructions. * * *

We find Welton instructive. Because OCPA is not permitted to belatedly file the Record, the Record is not, and will never be, properly before the trial court. Without the Record, OCPA’s petition cannot be considered. See TOPS, 20 N.E.3d at 155; Robertson, 19 N.E.3d at 762-63. The trial court’s order setting aside the dismissal of OCPA’s petition was therefore an empty exercise. Because OCPA cannot establish a meritorious claim, the trial court abused its discretion in granting the motion for relief from judgment. We therefore reverse and remand with instructions to vacate the trial court’s judgment setting aside its dismissal of OCPA’s petition for judicial review.

NFP civil decisions today (2):

Keith A. Eenigenburg and Sandra Eenigenburg v. Joan Andreotti (mem. dec.)

Patricia A. Smith v. Kelly J. Fehrenbacher, M.D. and David J. Weaver, M.D. (mem. dec.)

NFP criminal decisions today (0):

Posted by Marcia Oddi on October 11, 2016 01:38 PM
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Transfer list for week ending October 7, 2016 [Updated]

Here is the Clerk's transfer list for the week ending Friday, October 7, 2016. It is two pages (and 19 cases) long.

No transfers were granted last week.

Interestingly, as of this writing, the Oct. 3rd order of the Supreme Court denying transfer, by a vote of 3-2, in the Parkview Hospital case, is not listed on this Oct. 7th transfer list. The ILB wrote about the denial on Oct. 6th and Oct. 10th.

[Updated 10/18/16] The Court's October 7th transfer list has now been corrected with the addition to the list of the Oct. 3rd denial of transfer in the Parkview Hospital case.

Posted by Marcia Oddi on October 11, 2016 11:04 AM
Posted to Indiana Transfer Lists

Ind. Gov't. - "Bangert: An experiment in voter fraud"

Lafayette Journal & Courier columnist has a long story that starts out with an example of "how easy it would be to get into someone’s voter registration and make changes to it." From there the article looks at the ongoing State Police investigation:

Tippecanoe County isn’t among the 57 counties targeted by the Indiana State Police investigation that started in Marion County. As of late last week, it appeared police were working their way alphabetically through Indiana’s counties, making it to Owen County. Coffey said she was preparing in case police pull Tippecanoe County in next.

State police haven’t offered much about the investigation or about when it would be done. Last week, state police issued a search warrant for the business offices of Indiana Voter Registration Project in Indianapolis. (Patriot Majority USA, the parent organization for Indiana Voter Registration Project, in turn, asked the U.S. Department of Justice’s Civil Rights Division to look for signs that the police probe was an attempt to suppress the black vote.)

As for what they were after, police offered a statement: “Victims of the activities by some agents of the Indiana Voter Registration Project may not discover they have been disenfranchised from voting until they go to vote and realize their voting information has been altered.”

How that might be happening, and whether it includes the state’s online system, state police aren’t saying.

ILB: The ILB remembers the ACORN controversy in 2008, and has located several posts about it. Start with this one from Nov. 14, 2008, headed: "Still more on "ACORN followed law on suspect voter registrations.'"

Posted by Marcia Oddi on October 11, 2016 10:45 AM
Posted to Indiana Government

Ind. Gov't. - "Old Crown Point marriage mill ordinance tossed"

Rob Earnshaw reported last weekend in the NWI Times (here via the IED) in an interesting story that begins:

CROWN POINT — A 1936 ordinance banning the commercialization of marriage ceremonies has been wiped off the city slate.

The Crown Point Ordinance Committee doesn't believe the commercialization of marriage ceremonies is a big problem anymore, said Alex Kutanovski, assistant city attorney.

"It was from the time of the marriage mill," he said.

Crown Point was once the Las Vegas for area couples who rushed to be wed on the courthouse steps. From 1915 to the late 1930s, about 175,000 couples were married there.

Brides and grooms married in Crown Point because of the short wait time and ease of becoming legally wed.

Many famous figures got hitched in Crown Point, including Tom Mix, Rudolph Valentino, Muhammad Ali, the parents of Michael Jackson and former President Ronald Reagan, who married his first wife, actress Jane Wyman.

According to the Crossroads Regional Chamber of Commerce, at one point six justices of the peace were marrying couples seven days a week at all hours to keep up with demand.

Posted by Marcia Oddi on October 11, 2016 08:29 AM
Posted to Indiana Government

Monday, October 10, 2016

Ind. Gov't. - "Judge, prosecutor seek AG post"

Niki Kelly of the Fort Wayne Journal Gazette reported this weekend in the race for Indiana attorney general. Some quotes:

INDIANAPOLIS – Two men who have dedicated their lives to the law are vying for the open seat of Indiana attorney general in November.

Democrat Lorenzo Arredondo and Republican Curtis Hill Jr. are seeking to replace Greg Zoeller as the state’s top lawyer. Zoeller did not seek re-election. The four-year term pays $94,5000 annually.

Arredondo, a 75-year-old who has called East Chicago home his entire life, is the youngest of 10 children. His parents immigrated from Mexico in 1923 and his union-leader father was killed in 1955 – an event that shifted Arredondo’s focus from working in the steel mill to going to college.

After being a teacher for a while, he decided to go to law school and spent time prosecuting cases before serving as a Lake County judge for 34 years. * * *

Hill, 55, grew up in Elkhart and lives there with his wife and five children. He got his law degree from Indiana University.

“I had traveled and seen different parts of the country, but I wanted to go back to Elkhart to spend time with my parents,” he said. “I hung a shingle, and it was important for my dad to see some of my success.”

His dad was active in the civil rights movement and taught Hill how important community service was.

He practiced law for 27 years – including time as a general lawyer and as a part-time prosecutor. He ran for prosecutor in 2002 on a platform of moving the office to a full-time operation. He is in his fourth term.

“We locked up a lot of bad people doing bad things,” Hill said. “People can’t feel free unless they feel safe.”

More from the story:
The position of attorney general is primarily about defending local convictions or laws the General Assembly passed but has become increasingly political in recent years.

Zoeller, for instance, has signed on to a number of national lawsuits brought against the Obama administration. And he has defended laws passed by lawmakers that were found to be unconstitutional.

Hill said he doesn’t want the office to do things for political reasons but recognizes that executive agencies on the federal level affect Indiana government and sometimes need to be challenged.

He said legislation passed by lawmakers is presumptively constitutional.

“If it’s a situation where I think it’s a clear violation then it’s my duty to say that and be transparent about my concerns,” Hill said. “But I won’t engage in frivolous disagreement. Some legislation I might not agree with, but it’s perfectly legal.”

Arredondo, though, is using this topic as a base of his campaign.

“Lately it’s been a launching pad for young ambitious politicians who want to become governor or senator. I want to bring it back to what it was created for – the people’s lawyer,” he said. “I would not spend taxpayer time and resources on lawsuits that just can’t be won.”

He said Zoeller has used the national suits to fight alleged federal overreach. But Arredondo said he would more carefully review the legal merits of a case, not the political ones.

“Some of those lawsuits are clear and there is no point in getting into them except to make news,” he said.

Arredondo also said he won’t blindly defend questionable laws.

“There is a right not to defend if it’s not defensible,” he said, noting his time as a judge should be a great advantage as he is used to listening to both sides and reviewing all legal precedent before making determinations. * * *

Hill said he would be more aggressive defending convictions obtained by local prosecutors. He would also carefully consider when using outside attorneys at much higher rates than those working for the state.

At times, it seems Hill is talking about serving in a different office – perhaps governor?

“I’m looking forward to the opportunity to serve in this capacity. It’s a very important office,” he said. “Sometimes people ask what it’s about. I say we are the champion for the people – defender of freedom; protector of families; inspiring solutions.”

ILB: The ILB has a number of other posts on this year's race for attorney general.

Posted by Marcia Oddi on October 10, 2016 02:10 PM
Posted to Indiana Government