Tuesday, September 02, 2014

Ind. Courts - Insulting Names Don’t Belong in Lawyers’ or Judges’ Lexicons

Commentary by Joel Schumm, professor at Indiana University's Robert H. McKinney School of Law

Two recent events caused me to think about what lawyers calls each other, and what judges call lawyers. There is arguably a big gray area here, but this post offers some thoughts worth considering.

What Lawyers Call Lawyers

A female attorney recently told me about an unpleasant conversation with opposing counsel. Although litigation is often not particularly civil, an older male lawyer went out of bounds by continually referring to her as “hon.” Even more troubling, this was not the first time she’s been called “hon” or “sweetie” by male lawyers.

Some might not mind—or may even enjoy—greetings like sweetie or dear from their server at a diner, but it’s not a professional way to greet another lawyer. Whether intended or not, “hon” and “sweetie” strike many as sexist. The same lawyer would never use those equivalent terms when referring to a male lawyer.

Lawyers should strive to be professional and civil—not merely ethical under the Rules of Professional Conduct. Nonetheless, calling an opposing lawyer “hon” or “sweetie” may well violate Rule 8.4(g). That rule prohibits “conduct, in a professional capacity, manifesting, by words or conduct, bias or prejudice based upon” gender, among other things.

The Indiana Supreme Court has found violations of 8.4(g) for a lawyer who referred to someone as an “illegal alien” and another lawyer who asked a company representative if he was “gay” or “sweet” after hearing what she thought was a feminine-sounding voice.

Moreover beyond the Rules of Professional Conduct, lawyers could face sanctions if they engage in what a Maryland case refers to as “sexual trial tactics” that “undermine women litigators’ credibility, professionalism, and ability to represent their clients.” There, in a deposition of a female plaintiff who alleged the male defendant negligently infected her with genital herpes, the defendant’s male lawyer had the following exchange with the plaintiff’s female lawyer:

[Male Defense Lawyer]: It must have been in poor taste if [female lawyer] said it was in poor taste. It must have really been in poor taste.
[Female Plaintiff’s Lawyer]: You got a problem with me?
[Male Defense Lawyer]: No, I don’t have any problem with you, babe.
[Female Plaintiff’s Lawyer]: Babe? You called me babe? What generation are you from?
[Male Defense Lawyer]: At least I didn’t call you a bimbo.
The Maryland court aptly concluded: “While strategy and tactics are part of litigation, and throwing your adversary off-balance may well be a legitimate tactic, it is not legitimate to do so by the use of gender-based insults.”

What Judges Call Lawyers

Judicial Conduct Rule 2.3 requires judges to avoid words or conduct that manifest bias or prejudice—and to ensure lawyers in their courtroom do the same. A comment to the rule notes that manifestations of bias or prejudice includes “demeaning nicknames.” Rule 2.8(B) requires judges be patient, dignified, and courteous to lawyers, litigants, and others. A judge referring to a lawyer as “sweetie” or “hon” would surely runs afoul of these rules. Similar terms would also be a problem, and calling a young male lawyer “son” would seem inadvisable.

Although less of a concern, is it “dignified” to call lawyers by their first name during court proceedings? I was surprised when reviewing a transcript of a recent bench trial that the judge repeatedly referred to the female lawyer by her first name. Although seemingly less frequent, the judge also called the male lawyer by his first name. Although I’m not suggesting this is an ethical violation, I do worry how such familiarity might be perceived by the dozens of people sitting in the courtroom.

What Lawyers Call Judges

The expectation or unwritten rule for lawyers addressing judges seems easy: “Judge” or “Your Honor” on the bench and off-the-bench in the presence of other lawyers or clients. In social settings with judges who lawyers knew before they took the bench, first names are usually fine—and arguably less awkward for the judge. A recent article about the appointment of Chief Justice Rush quoted a lawyer: “I’m sure in Indianapolis she’s Chief Justice Rush. In Lafayette, she’s Loretta to everyone.”

The names we call each other say a lot about our professionalism and civility but also makes a difference in how others perceive us. In the courtroom, the formal labels are important to a dignified process. In many other settings, “Judge Smith” would much rather be “Mary” just as Professor Schumm would much rather be Joel.

Note: I hope to do a follow-up post that includes comments or stories from lawyers or judges. I encourage you to email me; we won’t use your name unless you insist.

Posted by Marcia Oddi on September 2, 2014 02:20 PM
Posted to Indiana Courts

Ind. Decisions - Supreme Court decides one today

In Natural Resources Defense Council v. Poet Biorefining- North Manchester, LLC, Poet Biorefining- Cloverdale, LLC, Central Indiana Ethanol, Inc., et al., 17-page, 5-0 opinion (with a David v. Goliath-type lineup of attorneys on p. 1), Justice David writes:

Agencies at both the state and federal level are tasked with promulgating, interpreting, and enforcing specific regulations pertaining to their particular area of expertise. Because of the agencies’ degree of expertise, courts exercise significant deference in reviewing those interpretations. Here, Indiana’s environmental agency revised its interpretation of a regulatory term and that interpretation was challenged and subjected to judicial review. But in light of the deference we show to such an agency assessment of its own regulations, we find the new interpretation reasonable—and because no more formal revision process was required, we affirm the trial court. * * *

In 2011, the Indiana General Assembly passed a law providing that for purposes of Indiana’s SIP, “chemical process plants” did not include fuel ethanol plants. Act of May 10, 2011, Public Law 159-2011, § 21(e), 2011 Ind. Acts 1614–15; Ind. Code § 13-17-3-4(e) (Supp. 2011).2 IDEM then published a nonrule policy document, citing the EPA’s Ethanol Rule and affirming its intention to interpret the phrase “chemical process plants” in Indiana’s SIP in accordance with the Ethanol Rule—in other words, to exclude ethanol plants from being classified as chemical process plants. 20110525 Ind. Reg. 318110311NRA (May 25, 2011). This change was then incorporated into the Indiana Administrative Code, see 326 Ind. Admin. Code 2-2-1(ff)(1)(U), but again, Indiana’s SIP has not yet been amended through the EPA approval process to codify this new interpretation. * * *

NRDC challenges IDEM’s policy change in a number of ways, but they boil down to two main arguments: was IDEM required to formally amend Indiana’s SIP to effect the change, and if not, is IDEM’s interpretation of the term “chemical process plant” correct? * * *

[I. SIP Revision not Required] We agree with IDEM that this provision “incorporates the SIC Manual strictly for the purpose of determining whether pollutant-emitting activities at a facility belong to the same industrial grouping.” (IDEM’s Br. at 11.) Whether the SIC Manual defines chemical process plants to include fuel ethanol plants or not, that definition is not incorporated into the PSD SIP’s definition of major stationary source or chemical process plant. As such, it does not compel IDEM to formally amend the SIP in this case. * * *

[II. IDEM’s Interpretation of Indiana’s SIP is Reasonable.] “The power of an administrative agency to administer a congressionally created . . . program necessarily requires the formulation of policy and the making of rules to fill any gap left, implicitly or explicitly, by Congress.” Chevron, U.S.A., Inc. v. NRDC, Inc., 467 U.S. 837, 843 (1984) (quoting Morton v. Ruiz, 415 U.S. 199, 231 (1974)). The same principle is true here at the state level. And here, the purpose of the Clean Air Act is to create a framework within which states may regulate and operate. To do so successfully, states and their implementing agencies must be afforded the flexibility to responsively adapt to changing technologies, market fluctuations, environmental conditions, and shifts in public policy.

Requiring the Clean Air Act and SIPs to contain each and every rule, definition, interpretation, and administrative construction would turn a framework into a hide-bound behemoth of legal provisions addressing all manner of minutia that would require years to modify for even the most basic of reasons. “[W]ere the shoe on the other foot,” (NRDC’s Br. at 32), and were IDEM promulgating an interpretation tightening pollution restrictions, we doubt that NRDC would be making this claim with such force. * * *

The only question here, then, is whether IDEM’s new interpretation is reasonable and supports the issuance of the permits in this case. More specifically, the question is whether the regulatory phrase “chemical process plant” can reasonably be interpreted to permit exclusion of fuel ethanol plants. * * *

NRDC argues that the plain meaning of “chemical process plant” must include fuel ethanol plants, because the phrase “refers on its face to a category of industrial facilities that utilize chemical processes to produce chemical products,” and “[f]uel ethanol plants fall squarely within that definition” because “converting raw plant matter to fuel ethanol is a chemical process.” (NRDC’s Br. at 39–40.) But we do not see interpretation of the phrase as needing to be that strict. * * *

Whether the interpretation is sound public or environmental policy is not something we review, nor do we seek to propose a long-term judicial definition of “chemical process plant” that will bind IDEM to our view of how that phrase should apply in every circumstance. The question we face is only whether IDEM’s exclusion of fuel ethanol plants from that phrase is reasonable, and we find that it is.

Conclusion. Neither the Clean Air Act nor Indiana’s State Implementation Plan mandate that IDEM pursue the formal SIP revision process before excluding fuel ethanol plants from the chemical process plant major source category. Moreover, there is nothing unreasonable in IDEM’s decision to define “chemical process plant” to incorporate such an exclusion as a matter of regulatory interpretation. We therefore affirm the trial court.

ILB: Interesting opinion, with some language that may cut both ways in future years.

Posted by Marcia Oddi on September 2, 2014 01:52 PM
Posted to Environment | Ind. Sup.Ct. Decisions | Indiana Government

Ind. Courts - Governor Pence Names Bruce Parent Lake Superior Court Judge

From the news release:

Indianapolis – Governor Mike Pence today named Bruce Parent as Judge in the Lake Superior Court, Civil Division.

“With nearly two decades of civil law experience and expertise in Lake County, Bruce Parent has the skills and dedication necessary to serve Hoosiers well as Lake Superior Court Judge,” said Pence.

Currently, Parent, who has served as a public defender with the Lake Superior Court since 1997, works as a sole practitioner with the Law Office of Bruce D. Parent, PC, where he is primarily engaged in family law. From 1995 to 1997, Parent worked as a Lake County deputy prosecutor. He is a registered Indiana family law mediator and member of the Lake County Bar Association, as well as the Indiana Public Defender Council. Parent earned his undergraduate degree and master’s degree from the University of Wisconsin and his law degree from Valparaiso University.

Posted by Marcia Oddi on September 2, 2014 01:48 PM
Posted to Indiana Courts

Ind. Courts - A look at the Indiana Tax Court

The ILB has received a number of notes from readers asking about the time it takes to get a decision from the Indiana Tax Court. The following table shows disposition time for final Tax Court opinions for the first nine months of 2014.

Tax Court: Final Decisions This Year (1/1/14 - 9/1/14)
Opinion Transmitted to Tax Court Transmitted to Oral Argument Oral Argument Oral Argument to Opinion Opinion Date/Author Total Time
Gary School v. DLGF (45T10-1104-TA-30) 4/19/11 182 10/18/11 (Wentworth) 1046 8/29/14 (Wentworth) 1228
Ind'pls Racquet Club v. Marion Co.Ass. (49T10-1201-TA-1) 1/17/12 295 11/7/12 (Wentworth) 652 8/21/14 (Fisher) 947
Howard Co.Ass. v. Kokomo Mall (49T10-1109-TA-00056) 9/16/11 217 4/20/12 (Wentworth) 838 8/6/14 (Fisher) 1065
Clark Co. v. DLGF (39T10-1102-TA-00009) 2/7/11 350 1/23/12 (Wentworth) 884 6/25/14 (Wentworth) 1234
Speedway Pub.Lib. v. DLGF (49T10-1103-TA-22) 3/17/11 343 2/13/12 (Wentworth) 862 6/24/14 (Fisher) 1195
Housing Ptn. v. Barth.Co. (49T10-1005-TA-23) 5/21/10 543 11/15/11 (Wentworth) 934 6/6/14 (Wentworth) 1477
Idris v. Marion Co.Ass. (49T10-1108-TA-49) 8/3/11 331 6/11/12 (Wentworth) 723 6/4/14 (Fisher) 1036
McKeeman v. Stueben Co.Ass. (02T10-1104-TA-31) 4/22/11 179 10/18/11 (Wentworth) 953 5/28/14 (Fisher) 1132
Hamilton Co.Ass. v. SPD Realty (49T10-1104-TA-28) 4/13/11 216 11/15/11 (Wentworth) 924 5/27/14 (Wentworth) 1140
Van Buren Twp. v. DLGF (49T10-1104-TA-27) 4/11/11 192 10/20/11 (Wentworth) 939 5/16/14 (Wentworth) 1131
Hoosier Roll Shop v. IDSR (49T10-1104-TA-29) 4/21/11 386 5/11/12 (Fisher) 733 5/14/14 (Fisher) 1119
Tannins v. IDOR (49T10-1303-SC-45) 3/22/13 294 1/10/14 (Wentworth) 80 3/31/14 (Wentworth) 374
Frat.Order Eagles v. Morgan Co. (49T10-1201-TA-4) 1/20/12 279 10/25/12 (Wentworth) 509 3/18/14 (Wentworth) 788
Thorsness v. Porter Co.Ass. (49T10-1102-TA-14) 2/10/11 183 8/12/11 (Wentworth) 895 1/23/14 (Wentworth) 1078
AVERAGES (in days)   285   784   1067

The left column in the table links to each opinion and its case docket. Where the oral arguments have been video-archived, links are included.

The final row of the table shows the averages:

  • The average time from transmittal to hearing was 285 days:
  • The average time from hearing to final opinion was 784 days;
  • The average time from transmittal to opinion was 1067 days.
Compare this to the statistics for the Supreme Court's first quarter:
  • The average time from grant to oral argument was 93 days;
  • The average time from oral argument to opinion was 181 days;
  • The average total time (including about 2 months for transmittal to grant, which is not an issue with the Tax Court) was 275 days.
During the first nine months of 2014, Judge Wentworth has issued 8 final opinions, and Sr. Judge Fisher has issued six final opinions. However, Judge Wentworth conducted all but one of the 14 oral arguments or hearings, meaning that 5 of Sr. Judge Fisher's opinions were based on hearings conducted by Judge Wentworth. Not shown on the table are 6 non-final opinions issued by Judge Wentworth in 2014, including this one issued August 29, dealing with a motion to strike 4 exhibits, and three non-dispositive rulings relating to a single case, filed in 2010 (Popovich).

The Annual Reports of the Tax Court, dating back to 2004, are located here. Each is two pages in length and distinguishes between final and non-dispositive written decisions. Each lists the carryover cases from the preceding year, and the new cases filed in the year covered by the Report. Using this information the ILB has created three charts.

Case backlog from 2004 to the start of 2014:

New cases filed from 2004 to the start of 2014:

Final opinions (decisions on merits) filed from 2004 to the start of 2014:

Notable from the three charts is that while the number of new cases filed has gone down starting in 2011, the backlog has soared during the same period. Also notable is that, beginning in 2011, when there are effectively two tax court judges, the number of decisions on merits issued each year has been less than that of previous years, when there was only one tax court judge.

The current staffing of the Tax Court, according to a 2012 budget request transmittal letter from Judge Wentworth, includes:

  • Tax Court Judge
  • Sr. Tax Court Judge
  • Court Administrator
  • Staff Attorney
  • Two Full-Time Law Clerks
Judge Fisher served as Tax Court judge from the court's creation in 1986 until his replacement by Judge Wentworth, who was appointed by Governor Daniels on December 22, 2010. Since that time, Judge Fisher has served the Tax Court as a Senior Judge. Judge Wentworth is up for retention at the general election this November. The voters will be asked whether she should be retained for a 10-year term.

Finally, the ILB has assembled a list of the hearings of the Tax Court already held or set for a future date in 2014.

Hearings of the Tax Court in 2014

Tax Court hearings are recorded on the Court calendar, which was my initial source in preparing this list. I have added the date the appeal was initially filed with the Tax Court. In those instances there has been a ruling subsequent to the hearing, I have so indicated with a link to the opinion. Hearings are in the Statehouse unless otherwise indicated (In 2014 only one case has been heard outside the Statehouse). 19 hearings have been set or scheduled in 2014 as of this writing.

January, 2014

  • Jan. 10, 2014 Tannins of Indianapolis, LLC v. Indiana Dep't of State Revenue (49T10-1303-SC-45) This is a small claims trial. [Filed 4/10/13]

  • Jan. 17, 2014 Orbitz, LLC v. Indiana Dep't of State Revenue (49T10-0903-TA-10) This is a hearing on the parties' motions for summary judgment. [Filed 4/23/09]

  • Jan. 27, 2014 Miller Pipeline Corp. v. Indiana Dep't of State Revenue (49T10-1012-TA-64) The taxpayer challenges whether sales tax is owed on certain items used in its business operations. Senior Judge Thomas G. Fisher, presiding. [Filed 1/6/11]

  • Jan. 28, 2014 Pinnacle Entertainment, Inc. v. Indiana Dep't of State Revenue (49T10-1206-TA-34) This is a hearing on a partial motion for summary judgment. Senior Judge Thomas G. Fisher, presiding. [Filed 6/18/12]
February, 2014

  • Feb. 5, 2014 Washington Township Assessor, et. al. v. Verizon Data Services, Inc. (49T10-1102-TA-13) Petitioners challenge whether the Indiana Board of Tax Review erred in granting summary judgment to Respondent because the Property Tax Assessment Board of Appeals failed to timely issue a final determination on Respondent's personal property tax appeal thereby making the Respondent's self-reported assessment was final. [Filed 2/24/11]

  • Feb. 14, 2014 Crystal Flash Petroleum, LLC v. Indiana Dep't of State Revenue (49T10-1104-TA-25) This is a hearing on the Respondent's Motion for Partial Summary Judgment. [Filed 4/12/11]

  • Feb. 27, 2014 RDM Sales & Service, Inc. v. Indiana Dep't of State Revenue (82T10-1001-TA-3) This is a hearing on the parties' motions for summary judgment. [Filed 3/24/10]
March, 2014

  • March 6, 2014 Larry G. Jones and Sharon F. Jones v. Jefferson Co. Assessor (39T10-1308-TA-68) Taxpayers challenge whether the Indiana Board of Tax Review erred in denying their 2008/2009 real property assessment appeals. Location: Jefferson County Courthouse, Madison, IN. [Filed 9/9/13]

  • March 20, 2014 Fresenius USA Marketing, Inc. v. Indiana Dep't of State Revenue (49T10-1008-TA-45) This is a hearing on the parties' motions for summary judgment. [Filed 10/21/10]
April 2014

  • April 7, 2014 Paul J. Elmer & Carol A. N. Elmer v. Ind. Dep't of State Revenue (49T10-1110-TA-64) This is a hearing on the Respondent's Motion for Summary Judgment. Senior Judge Thomas G. Fisher, presiding. [Filed 10/31/11]
May, 2014

  • May 8, 2014 West Ohio II, LLC v. Marion Co. Assessor, et. al. (49T10-1404-TA-9) This is a hearing on Petitioner's Petition to Enjoin Collection of Tax. [Filed 4/14/4]

  • May 8, 2014 Washington Park Cemetery Assoc., Inc. v. Marion Co. Assessor, et. al. (49T10-1404-TA-10) This is a hearing on Petitioner's Petition to Enjoin Collection of Tax. [Filed 4/29/14]

  • May 23, 2014 Spencer Co. Assessor, et. al. v. AK Steel Corp. (49T10-1306-TA-57) This is a hearing on the Respondent's motion for summary judgment. [Filed 7/3/13]

  • May 29, 2014 Kathryn Gillette v. Brown Co. Assessor (49T10-1305-TA-53) This is an oral argument involving whether the Indiana Board of Tax Review erred when it determined that Petitioner's submission of insurance values on her property did not establish its market value-in-use.[Filed 5/29/13]
June , 2014

  • June 19, 2014 Property Development Co. Four, LLC v. Grant Co. Assessor (49T10-1401-TA-3) The taxpayer challenges whether the Indiana Board of Tax Review erred when it determined that an Assessor could reassess property retroactively under Indiana Code § 6-1.1-9-5. [Filed 1/31/14]
July 2014
  • July 31, 2014 Popovich v. IDOR (49T10-1010-TA-53) This is a hearing on Petitioner's Motion for Trial Rule 37 Sanctions. [Filed 10/4/10]
August 2014 (none)

September, 2014

  • Sept. 5, 2015 Hamilton Southeastern Utilities, Inc. v. Ind. Dep't of State Revenue (49T10-1210-TA-68) This is a hearing on the Parties' motions for summary judgment and Petitioner's motion to strike a portion of Respondent's designated evidence. [Filed 10/29/12]

  • Sept. 25, 2014 Ind. Dep't State Revenue, Inheritance Tax Division v. Estate of Janice Hamblin (49T10-1403-TA-6) The Department of Revenue, Inheritance Tax Division challenges whether the courty court erred in determining that the annuity interests transferred by the decedent via a trust, could be valued as though they were life estates. Senior Judge Thomas G. Fisher presiding. [Filed 3/11/14]
October, 2014

  • Oct. 9, 2014 Pulte Homes of Indiana, LLC v. Hendricks County Assessor (49T10-1302-TA-11) The Taxpayer challenges whether the Board erred in dismissing taxpayer's appeal on the basis that the issue raised by taxpayer on its Form 133 (that common areas of developments have a zero value) was not an objective error, but rather a subjective error which necessitated the filing of a Form 131. [Filed 2/11/13]
November, 2014 (none yet)

December, 2014 (none yet)

Posted by Marcia Oddi on September 2, 2014 01:43 PM
Posted to Ind. Tax Ct. Decisions | Indiana Courts | Indiana Government

Ind. Courts - Blackford Circuit Court admonishes attorney for not wearing socks

Here it is, not to be missed, a 3-page "Order directing proper attire beworn by Todd A. Glickfield," signed by Judge Dean A. Young, and dated Aug. 25, 2014.

Posted by Marcia Oddi on September 2, 2014 01:09 PM
Posted to Ind. Trial Ct. Decisions

Ind. Decisions - Court of Appeals issues 0 today (and 1 NFP)

For publication opinions today (0):

NFP civil opinions today (1):

In Re the Matter of Z.G., J.C., and H.H.: Children Alleged to Be Children in Need of Services S.H. (Mother) & K.G. (Father of Z.G.) v. The Indiana Department of Child Services (NFP)

NFP criminal opinions today (0):

Posted by Marcia Oddi on September 2, 2014 12:33 PM
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Transfer list for week ending August 29, 2014

[Search all the Transfer Lists: The ILB feature, "Search the ILB Transfer Lists," allows you to do just that, back to Feb. 2004. Check it out. Read the instructions. Note that the search is now current through the June 20, 2014 list.]

Here is the Clerk's transfer list for the week ending Friday, August 29, 2014. It is two pages (and 22 cases) long.

Three transfers were granted this week:

  • Cornelius Hines v. State of Indiana - This is a NFP June 17th opinion concluding:
    The trial court concluded, “in weighing the two together I think that the prior criminal record and the type of offenses he’s committed outweigh any mitigating factor.” Transcript at 213. We agree with the trial court’s analysis. Hines’s sentence is not inappropriate.

  • Kenneth Griesemer v. State of Indiana - This is a 2-1, May 23rd opinion where the majority concludes:
    Because the evidence most favorable to the State permits an inference only that the police induced Griesemer’s criminal behavior, but does not contain any evidence permitting an inference that Griesemer was predisposed to commit patronizing a prostitute, entrapment was established as a matter of law, and we must reverse Griesemer’s conviction. Reversed.

  • State Farm Mutual Automobile Insurance Company v. Kimberly S. Earl and the Estate of Jerry Earl - This is a Jan. 24th, 2-1 opinion where the majority writes:
    In this case, we are presented with an issue of first impression in Indiana. More particularly, appellant-defendant State Farm Mutual Automobile Insurance Company (State Farm) asks us to join other states that have determined Uninsured Motorist (UM) insurance limits to be inadmissible. * * * State Farm contends that evidence of the bodily injury limit was both irrelevant and prejudicial. Determining that evidence of the bodily injury limit was in fact both irrelevant and prejudicial, we reverse and remand this cause to the trial court for further proceedings consistent with this opinion.

Posted by Marcia Oddi on September 2, 2014 12:26 PM
Posted to Indiana Transfer Lists

Ind. Decisions - 7th Circuit rules Indiana right-to-work law is not unconstitutional [Revised]

Here is the first report, from ABC and WRTV6.

The Indiana Supreme Court is considering the question on Thursday.

Here is the 59-page, 2-1 opinion in Sweeney v. Pence (ND Ind., Simon). Judge Tinder writes:

Plaintiff‐Appellants, members and officers of the International Union of Operating Engineers, Local 150, AFL‐CIO (“the Union”) appeal the district court’s dismissal of their suit, arguing that the Indiana Right to Work Act violates their rights under the United States Constitution and is preempted by federal labor legislation. Because the legislation is not preempted by the scheme of federal labor law and does not violate any constitutional rights, we affirm the district court’s dismissal of the suit.
Chief Judge Wood's dissent begins on p. 32:
Today’s decision is either incorrect or it lays bare an unconstitutional confiscation perpetuated by our current system of labor law. In my view, the better view is the former: the majority has simply misunderstood the federal statutory scheme, taken as a whole. The plain language of section 14(b) of the National Labor Relations Act (NLRA) does not support such sweeping force for Indiana’s Right to Work law. IND. CODE § 22‐6‐6. No ruling of the Supreme Court has gone this far, and the legislative history of section 14(b) (for those who consider it relevant at all) is inconclusive. Even if, however, one thought that there were some ambiguity in the NLRA, the principle of constitutional avoidance provides a powerful reason to reject the majority’s holding. I would find sections 8(2) and 8(3) of Indiana’s statute, Ind. Code § 22‐6‐6‐8(2), (3), preempted by federal statute. I therefore respectfully dissent.

Posted by Marcia Oddi on September 2, 2014 11:57 AM
Posted to Ind Fed D.Ct. Decisions

Ind. Courts - Marion County Small Claims Courts [Updated]

The Indiana Supreme Court has this morning released the July 2014 Final Report prepared by the National Center for State Courts on the Marion County small claims court. The Report recommends (see p. 23) that the small claims courts transition into a unified section within the Civil Division of the Superior Court.

The Report is located on this Courts webpage along with earlier reports and recommendations.

The ILB has a lengthy list of earlier posts on this topic, dating back to 2004. See particularly this July 14, 2014 ILB post, where the ILB asked some questions of an individual who is very well-attuned to Marion County politics, including:

ILB Q: Marion county legislators of both parties appear to be totally against reforming our small claims court system. That does not bode well for any change. Can you tell me why there is such total resistance to legislative change, including merging the 9 small claims courts into the county court system?
[Updated at 10:15 AM] The Indiana Courts have now released this announcement about the new report:
A national courts consultant recommends changes to the Marion County Small Claims Courts. The National Center for State Courts (NCSC) submitted a report to Indiana outlining the need to transition the small claims courts into a unified section within the civil division of the superior courts.

The NCSC report is the second report in recent years recommending changes to the structure of the small claims system. The report is available online at http://www.in.gov/judiciary/3844.htm. In May 2012, the Task Force on the Marion County Small Claims Courts made similar recommendations. Those study results can also be found online.

This NCSC study was prepared at the request of the Marion County Circuit Court and funded by a grant from the Indiana Supreme Court. Marion County Circuit Court Judge Louis Rosenberg stated that the NCSC report together with the earlier task force study detail a “reliable factual basis for identifying the shortcomings of the present system.”

The NCSC report:

· Provides a statistical profile of the small claims system with charts and tables featuring how the system is financed and how it manages caseload

· Details a principal inefficiency of the current system in mismatching of resources with caseloads

· Notes that local revenues from filing fees have not kept pace with court expenditures

Court of Appeals Judge John G. Baker, co-chair of the Task Force on the Marion County Small Claims Court, said, “every organization or group studying this matter has come to the same conclusion. The flexibility and responsiveness of the proposed changes will better serve all of the people in Marion County.”

Incorporating the township courts into a Small Claims Division of the Marion County Superior Court requires new legislation. The Supreme Court has submitted the NCSC report to leadership in the General Assembly along with the Supreme Court’s recommendations for implementation of reforms to the system.

Posted by Marcia Oddi on September 2, 2014 09:51 AM
Posted to Indiana Courts

Ind. Courts - "Purdue rebuffed on points of lawsuit"

Updating a long list of earlier ILB stories relating to the dispute between Purdue and Michael Wartell, Rebecca S. Green had this long story Aug. 30th in the Fort Wayne Journal Gazette. It begins:

In its request to have a judge reconsider whether it has to provide a copy of a report to former IPFW Chancellor Mike Wartell, Purdue University asked the court to review documents it hadn't made available before.

On Thursday, a U.S. District Court judge ruled that, not only would the court not consider those additional documents that were previously unavailable to the magistrate who made the ruling on the report, but again ruled that the report in question was not protected by attorney-client privilege.

In July, U.S. District Magistrate Judge Andrew P. Rodovich ruled Purdue University could not claim a report generated by attorney John C. Trimble hired to investigate Wartell's forced retirement in 2011 was protected by attorney-client privilege.

Rodovich's ruling came after the Indiana Court of Appeals found the same thing in connection to the report in a state-level case filed by Wartell in Tippecanoe County.

After his removal, Wartell filed a complaint against the university in Tippecanoe County, challenging his retirement and claiming discrimination and harassment. Purdue hired Trimble as an independent investigator.

The investigation was completed in February 2013 and reported to a group of Purdue board members, which found that no discrimination had taken place.

Wartell also filed a federal lawsuit, alleging that the school had never enforced the policy on anyone who did not want to leave, including chancellors.

During the course of the state lawsuit, Purdue refused to disclose the Trimble report, a decision smacked down by the Indiana Court of Appeals, which ruled that the document was a public record.

In the federal lawsuit, a federal magistrate judge ruled in July that the document was subject to discovery and should be disclosed as part of the lawsuit process, according to court documents.

According to the federal lawsuit, in late 2010 or early 2011, then-Purdue President France Córdova announced in a meeting that, before her term as president was over, she wanted to increase the number of women in the administration.

Requests from IPFW that Wartell be allowed to stay were denied. Purdue replaced him with a 64-year-old woman, Vicky Carwein, and she assumed his duties in September 2012.

In the most recent ruling, issued late Thursday by U.S. District Judge Robert L. Miller Jr., the court said again the document should be turned over to Wartell and found that Trimble did not disclose any attorney-client relationship with the university.

“Tossing Mr. Trimble at least in the direction of the bus, Purdue argues that the magistrate judge let (Trimble) through his omission, waive the attorney-client privilege,” Miller wrote. ­

“(T)hat Mr. Trimble didn't do so was evidence that he was acting merely as an investigator, rather than as Purdue's attorney.”

In their partial appeal of Rodovich's ruling, Purdue's attorneys wanted the court to consider a number of documents previously unavailable to Rodovich when he made his July ruling. Miller ruled that those documents were not to be considered in the appeal.

An appeal of the state case is pending before the Indiana Supreme Court.

Posted by Marcia Oddi on September 2, 2014 09:31 AM
Posted to Indiana Courts

Ind. Law - "Lake, Porter law enforcement remain grounded in use of drones"

From a story today in the Gary Post-Tribune - some quotes:

A new Indiana law became effective July 1, requiring law enforcement agencies to obtain a search warrant before using a drone to collect evidence.

But there’s not much reason to think the law, or the need for a search warrant, will be an issue in Northwest Indiana any time soon.

None of more than half-dozen area police departments contacted by the Post-Tribune said it owned drones. And many added there was no plan to obtain one in the future.

Lake County Sheriff John Buncich described the purchase of a drone “cost prohibitive” and said his department has “no plans in the future to purchase.”

In Porter County, spokesman Sgt. Larry LaFlower said, “Our department doesn’t have a drone and we currently have no plans of getting one.”

Not even the local FBI office has a unmanned aircraft to use for surveillance. “Nope,” FBI Special Supervisory Agent Robert Ramsey said. * * *

Porter County Prosecutor Brian Gensel noted that while drones may eventually become standard gear for law enforcement, he hopes police first establish protocol for their use. “They could be legitimately used over a scene,” he said, suggesting that a situation involving a SWAT team might benefit from an aerial view. “It’s inevitable, you see them at fairs now. Often the development of technology gets ahead of the usage, but I hope expect that before police utilize drones they would develop protocols.”

Posted by Marcia Oddi on September 2, 2014 09:11 AM
Posted to Indiana Law

Ind. Gov't. - "Lawmaker punished for lapse Loses leadership post over nursing homes"

This may have been the biggest story published while the ILB was on mini-vacation late last week. Here is Niki Kelly's report from the Fort Wayne Journal Gazette:

INDIANAPOLIS – House Speaker Brian Bosma on Friday said he is removing state Rep. Eric Turner from the House Republican leadership team and chastised him for not staying out of a legislative debate he had a major financial stake in.

In the spring, Turner, R-Cicero, tried to sway his colleagues in a private House Republican caucus against a moratorium on new nursing homes. The bill died in the waning hours of the legislature.

He acknowledged in a statement that he has an ownership stake in Mainstreet Capital Partners, which has an interest in Mainstreet Property Group. His son, Zeke Turner, is CEO of Mainstreet Property, and his daughter, Jessaca Turner Stults, is Mainstreet’s registered lobbyist.

The business builds nursing homes. Turner claimed the construction ban would have had “no significant effect” on Mainstreet’s business model, but a report by The Associated Press said he stood to lose millions in future profits.

A House Ethics Committee review found Turner did not break the rules, which say a member with a conflict of interest cannot vote on or sponsor legislation affecting him or her personally. He did neither.

Since then, the AP reported that a company that was part of the ethics investigation was sold to an Ohio company as part of a $2.3 billion deal.

“Given the recently disclosed magnitude of Rep. Turner’s personal and family financial interest in the outcome of the nursing home moratorium debate, any involvement in the decision-making process, whether in public debate or through private discussions with fellow elected officials, presented an irreconcilable conflict,” Bosma said.

“Rep. Turner should have recused himself entirely from influencing the matter in any way given the personal financial stake involved.”

Bosma said the House Ethics Committee reached the correct conclusion under the current law but the process revealed significant gaps that must be addressed.

He plans to present a comprehensive ethics bill to address many of these issues during the 2015 session.

Bosma also said he decided weeks ago that Turner would not be part of leadership when the House reconvenes in November. Turner was House speaker pro tem.

“Calls for resignation or removal at this point mean little, as the General Assembly is officially adjourned until after the November election,” Bosma said. “My greatest concern is restoring the confidence of the public in their elected officials.”

ILB: The concept outlined in the highlighted quotes from Speaker Bosma could form a centerpoint of the new ethics law.

Posted by Marcia Oddi on September 2, 2014 09:00 AM
Posted to Indiana Government

Ind. Gov't. - "Eight ways Indiana could improve voter turnout"

Dan Carden reported over the weekend in the NWI Times in a story that begins:

Indiana's 58 percent voter turnout in the 2012 presidential election was among the worst in the country. Just 11 states saw fewer eligible voters cast a ballot.

Most nearby states did much better. Minnesota's 76.1-percent turnout was highest in the nation, followed by Wisconsin at 73 percent. Iowa pulled in 70 percent, Michigan and Ohio both had 65 percent and Illinois' turnout was 59 percent.

Kentucky was slightly worse than Indiana at 55.9 percent.

States with the highest voter turnout tended to employ a variety of tools aimed at encouraging residents to exercise the right to vote.

Here are some practices used by other states that could result in higher Hoosier turnout if adopted by Indiana lawmakers:

See the story!

Posted by Marcia Oddi on September 2, 2014 08:56 AM
Posted to Indiana Government

Ind. Gov't. - More on: Controversy about Indiana public employee salary databases

Updating this lengthy ILB entry from Aug. 19th, Michael Austen reported Aug. 27th in the Indianapolis Star:

Indiana law gives you the right to know how much public employees make.

A quick database search on the Indiana Gateway for Government Units is all it takes to see just how much money every teacher, police officer and city council member brought home last year.

Right now, the database includes doctors and staff at county hospitals. But the Indiana Hospital Association is trying to change that.

County hospitals say they're put at a disadvantage when they have to make doctor salaries publicly available, said Spence Grover, vice president of IHA. Doing so gives private hospitals they compete with access to internal information from their publicly owned competitors, but the reverse isn't true. * * *

Although they've been working toward these changes since the beginning of the year, the issue has flared up recently after IndyStar.com published a list of the 20 highest paid public employees in Indiana. Six doctors from hospitals in Dearborn and Daviess counties were on the list, and the best paid among them brought in $768,588 last year.

Most hospitals didn't disclose salaries at all. So there could be higher paid doctors at any of the public hospitals that didn't file required forms with the state.

An advisory opinion issued this month by Attorney General Greg Zoeller's office confirms that the law does require county hospitals to report employee compensation to the state. It leaves unanswered the question of whether the state can keep that information to itself and prevent its public release.

That still needs to be settled by the State Board of Accounts, the agency charged with collecting compensation data for every unit of government in Indiana.

The attorney general's opinion was issued at the State Board of Accounts' request and after receiving input from the hospital association, said Bryan Corbin, a spokesperson for Zoeller's office.

Paul Joyce, state examiner with the Board of Accounts, said he wants to ensure the law is interpreted and applied the same way to all public hospitals. Right now, it isn't.

This year, fewer than half the state's county hospitals filed compensation disclosure forms with the state.

"My goal," Joyce said, "is 100 percent compliance."

That may prove harder than it sounds. In this situation, the state is powerless to enforce the law. * * *

It would take legislation to create a new method for enforcing the law, but there are other issues at stake here, including accountability and access to public records.

Although they may not be units of government in the same way state agencies or city councils are, county hospitals are still accountable to the people of the state, even if they don't receive money generated by taxes, said Steve Key, executive director of the Hoosier State Press Association.

Key said the compensation should be reported to the state and made publicly available upon request.

By January, when the compensation disclosure forms are due, Joyce said he and the board hope to be done reviewing their options. That's when they should know whether or not they'll be publishing county hospital salaries online next year.

Until then, the data is out there — at least for the 12 county hospitals that reported compensation.

ILB: See also this Aug. 22nd NY Times story by Alina Tugend headed "Secrecy About Salaries May Be on the Wane."

Posted by Marcia Oddi on September 2, 2014 08:39 AM
Posted to Indiana Government

Ind. Decisions - "LaPorte County judge denies prisoner's request for lethal injection"

Stan Maddux reported last week for WSBT, South Bend:

LAPORTE COUNTY, Ind. - An Indiana State Prison inmate serving 95 years for an Elkhart County murder wants to be put to death, but a judge Monday turned down his request.

Walter Leach, 61, is still hoping the governor or another high ranking state government official will grant his wish to be put on death row.

La Porte Circuit Court Judge Tom Alevizos denied the request by Leach for lethal injection. In his August 20 petition before the court, Leach asked to be put to death claiming Alevizos has authority to rule on his request because the Michigan City prison is in La Porte County.

No specific reason was given by Leach in his petition for wanting to be put to death. However, the request follows several unsuccessful attempts to have his murder conviction overturned, according to court records.

Alevizos ruled he cannot assume jurisdiction over Leach's request because the offender did not exhaust all of his options for pursuing his desire to die within the Indiana Department of Corrections.

And, even if all of his options within the DOC were exhausted, Alevizos said no law exists giving the court permission to grant such a request.

Leach was convicted of the July 4, 1995 slaying of Howard VanZant in Nappanee. * * *

According to court documents, Leach also filed his request for lethal injection with the offices of Gov. Mike Pence and Indiana Attorney General Greg Zoeller and Indiana State Prison Superintendent Bill Wilson.

Posted by Marcia Oddi on September 2, 2014 08:35 AM
Posted to Ind. Trial Ct. Decisions

Ind. Courts - "Gary courthouse to be closed ‘until further notice’ "

That is the headline to this Aug. 29th story by Carrie Napoleon in the Gary Post-Tribune. Some quotes:

GARY — The Lake County Courthouse in Gary will be closed indefinitely following a small fire Thursday that damaged a key electrical component.

Lake County Commissioner Michael Repay, D-Hammond, said Friday the minimal smoke issues from the fire have been repaired, but a vital component of the electrical system has been destroyed.

“The component, a switch gear, has a long lead time for production and will cause the Gary Courthouse to be closed until further notice,” Repay said in a press release.

The story goes on with details of relocations of various court offices, where to file, etc. This story by Rob Earnshaw published the following day in the Post-Tribune gives more details about temporary relocations.

Posted by Marcia Oddi on September 2, 2014 08:27 AM
Posted to Indiana Courts

Ind. Decisions - Upcoming oral arguments this week and next

This week's oral arguments before the Supreme Court (week of 9/1/14):

Thursday, Sept. 4

  • 9:00 AM - Gregory Zoeller, et al. v. James Sweeney, et al. (45S00-1309-PL-596) Sweeney and others (collectively "the Union") filed a complaint in the Lake Superior Court against the Attorney General and the Labor Department Commissioner (collectively "the State") seeking a declaratory judgment that Indiana's "right-to-work law” violated several provisions of the state constitution. The State moved to dismiss the complaint for failure to state a cause of action. The trial court ruled that two provisions, Indiana Code sections 22-6-6-8 and -10, violate Article 1, Section 21 of the Indiana Constitution because they demand particular services from unions without just compensation, and entered a declaratory judgment. The trial court granted the State's motion as to the remaining counts and dismissed them. The Supreme Court has jurisdiction over this direct appeal (civil) because the trial court declared a state statute unconstitutional. See Ind. Appellate Rule 4(A)(1)(b).

    ILB: This is the Right to Work Law challenge. This is the challenge to the J.Sedia opinion. For background and copies to the documents, see this Aug. 20th ILB post and its links, and this Aug. 24th ILB post.

  • 9:45 AM - Ruben Rosales v. State of Indiana (48S02-1404-CR-297) Rosales was convicted of attempted murder following a jury trial in the Madison Circuit Court. Without objection, the instruction on attempted murder referred to “specific intent,” but the instruction on accomplice liability did not. Rejecting the argument that the accomplice liability instruction constituted “fundamental error,” a divided Court of Appeals affirmed in Rosales v. State, 3 N.E.3d 1014 (Ind. Ct. App. 2014), vacated. The Supreme Court has granted a petition to transfer the case and has assumed jurisdiction over the appeal.

    ILB: This is a 2-1, Jan. 27, 2014 COA opinion where the majority and dissent wrote, respectively:

    As we have already noted, not every Spradlin claim amounts to fundamental error. The fundamental error exception is available only in “egregious circumstances.” Id. The record shows that Rosales was fairly tried and convicted. Affirmed.

    It is undisputed that the trial court erred in instructing the jury on accomplice liability, and it is also undisputed that the record is silent regarding whether the jury found Rosales guilty of attempted murder as an accomplice or as a principal. Relying on Thomas, the majority concludes that the error was not fundamental. I respectfully disagree.

  • 10:30 AM - Shawn Blount v. State of Indiana (49S02-1405-CR-338) Blount was charged with possession of a firearm by a serious violent felon. At the jury trial in the Marion Superior Court, a detective was allowed to testify that witnesses supplied him with the nickname of the person they believed fired the gun. The Court of Appeals reversed the conviction deciding that the “course-of-investigation” testimony was inadmissible hearsay. Blount v. State, 4 N.E.3d 787 (Ind. Ct. App. 2014), vacated. The Supreme Court has granted a petition to transfer the case and has assumed jurisdiction over the appeal.

    ILB: This was a 2-1 Feb. 24, 2014 opinion where the issue was whether the trial court abused its discretion by admitting hearsay evidence (when it allowed Detective Smith’s testimony concerning what Brock and her son told him as to their belief about who fired the gun). The COA ruled it was inadmissible hearsay.

Next week's oral arguments before the Supreme Court (week of 9/8/14):

  • No oral arguments currently scheduled.

Webcasts of Supreme Court oral arguments are available here.


This week's oral arguments before the Court of Appeals (week of 9/1/14):

Thursday, Sept. 4

  • 11:00 AM - Allen v. Hinchman, et. al. (49A02-1311-PL-975) In this case, Christa Allen appeals the trial court's grant of summary judgment in favor of Richard Hinchman, M.D., Richard Tanner, M.D., and Jeffrey Smith, M.D. Allen maintains that the trial court incorrectly determined that medical professionals are held to a lower standard of care when treating incarcerated persons. Additionally, Allen argues that prisoners with Gender Identity Disorder are entitled to medical care to maintain ongoing treatment when such care is of slight or no expense to the Satate and creates no security deficit. The Scheduled Panel Members are: Judges Baker, Kirsch and Robb. [Where:Court of Appeals Courtroom (WEBCAST)]

Next week's oral arguments before the Court of Appeals (week of 9/8/14):

Friday, September 12

  • 1:00 PM - Smith v. State (49A02-1312-CR-1015) Smith appeals her conviction of Class D felony resisting law enforcement. She argues the State did not prove she took action against the officer arresting her as to inflict bodily injury because the officer’s injuries occurred when he struck the pavement with his hand while subduing Smith in his efforts to arrest her. The Scheduled Panel Members are: Judges Baker, May and Brown. [Where:Linton-Stockton High School, Linton]

ONLY those Court of Appeals oral arguments presented in the Supreme or Court of Appeals Courtrooms will be accessible via videocast. [Note: This may be changing...]

The past COA webcasts which have been webcast are accessible here.


NOTE: For a printable version of this list of upcoming oral arguments, click on the date in the next line. Then select "Print" from your browser.

Posted by Marcia Oddi on September 2, 2014 08:23 AM
Posted to Upcoming Oral Arguments

Monday, September 01, 2014

Ind. Decisions - 7th Circuit decides three Indiana cases Aug. 29th

In U.S. v. Gonzalez, et al (ND Ind., Lozano), a 14-page opinion, Judge Bauer writes:

Our circuit is familiar with appeals from convicted gang members of the Almighty Latin Kings Nation. This appeal is a consolidation of four cases of former Latin Kings gang members who were indicted, prosecuted, and sentenced in the Northern District of Indiana. The indictment included twenty-three defendants: one defendant went to trial, twenty-one pleaded guilty, and one was never apprehended. The group was part of a major drug trafficking ring and linked to nineteen homicides. After the twenty-two convictions, four defendants filed appeals. * * *

We AFFIRM Anaya’s sentence in part and REMAND for the LIMITED PURPOSE of correcting the Judgment. We DISMISS the appeals of Gonzalez, Bernal, and Reyes. Accordingly, we GRANT the motions filed by counsel for Gonzalez and Bernal.

In Druco Restaurants v. Steak N Shake (SD Ind., McKinney), a 16-page opinion, Judge Rovner writes:
At issue in this appeal is whether a franchisor may compel several of its franchisees to engage in nonbinding arbitration of diversity claims that the franchisees brought in federal court. The district court refused to stay the franchisees’ lawsuits and declined to compel arbitration. We affirm. * * *

The district court correctly denied Steak n Shake’s motions to stay the pending litigation and to compel arbitration. Because we conclude that the district court was correct in finding that the arbitration clauses are illusory and unenforceable under Indiana law, we need not address whether the disputes were within the scope of the arbitration agreements or whether nonbinding arbitration fits within the definition of arbitration under the FAA.

In Scrogham v. Colvin (SD Ind., Pratt), a 34-page opinion, Judge Ripple writes:
Kenneth Owen Scrogham applied for disability benefits under the Social Security Act, submitting that a variety of medical conditions—including degenerative discs, spinal stenosis, sleep apnea, hypertension, arthritis, atrial fibrillation and restless leg syndrome—constituted a qualifying disability. After his application was denied, Mr. Scrogham participated in a hearing before an administrative law judge (“ALJ”) for the Social Security Administration (“Administration”). The ALJ denied Mr. Scrogham’s application for benefits, and the Administration’s Appeals Council denied his request for review. Accordingly, Mr. Scrogham filed a complaint in the United States District Court for the Southern District of Indiana, seeking judicial review of the ALJ’s decision. The district court affirmed the denial of benefits, holding that the ALJ did not err in giving less weight to the opinion of a treating physician than to the opinions of nontreating physicians, that the ALJ permissibly found Mr. Scrogham not to be credible and that the ALJ’s decision otherwise was supported by substantial evidence. Mr. Scrogham timely appealed.

We now reverse the judgment of the district court and remand for further proceedings. In our view, the ALJ’s methodology was flawed in several respects. The ALJ impermissibly ignored a line of evidence demonstrating the progressive nature of Mr. Scrogham’s degenerative disc disease and arthritis. As a result, the ALJ inappropriately undervalued the opinions of Mr. Scrogham’s treating physicians, whose longitudinal view of Mr. Scrogham’s ailments should have factored prominently into the ALJ’s assessment of his disability status. Second, even if we confined our review of the record to the snapshots of evidence that the ALJ considered, we do not think that this limited evidence builds the required logical bridge to her conclusions. Specifically, the ALJ seems to have misapprehended or at least to have considered only partially some of the evidence about Mr. Scrogham’s daily activities, rehabilitation efforts and physicians’ evaluations. This lapse affected both the ALJ’s credibility determination and her residual functional capacity assessment. Because the ALJ’s opinion reflects a flawed evaluation of the record evidence, we reverse the judgment of the district court and remand the case for further proceedings consistent with this opinion.

Posted by Marcia Oddi on September 1, 2014 03:44 PM
Posted to Ind. (7th Cir.) Decisions

Ind. Decisions - Court of Appeals issues 4 Aug. 29th (and 12 NFP)

For publication opinions today (4):

In David Hooker v. Shari Hooker , a 7-page opinion involving a pro se incarcerated appellant-petitioner, Judge Riley concludes:

Based on the foregoing, we conclude that the trial court did not abuse its discretion by reducing David’s child support payment nor did the trial court violate David’s due process rights.
In C.H. v. State of Indiana, an 18-page opinion, Judge Pyle writes:
First, because the officer had reasonable suspicion and his actions were reasonable under the totality of the circumstances, we conclude that C.H.’s federal and state constitutional rights were not violated and that the identification testimony was properly admitted into evidence. In regard to C.H.’s double jeopardy claim, we conclude there is a reasonable possibility that the State used the same evidence to support both adjudications, and we remand to the juvenile court to vacate C.H.’s adjudication with the less severe penal consequence. Lastly, because C.H. did not object to any aspect of restitution and invited any error that may have occurred with the restitution order, we will not review his restitution challenge.
In Ronald DeWayne Thompson v. State of Indiana , an 11-page opinion, Judge Baker writes:
Appellant-defendant Ronald Dewayne Thompson appeals his convictions for Rape, a class A felony, and Criminal Deviate Conduct, a class B felony. More particularly, Thompson contends that the trial court erred when it admitted evidence that Thompson was a suspect in another sexual assault case. Additionally, Thompson argues that the State’s request to introduce evidence under Indiana Evidence Rule 404(b) did not provide reasonable notice as required by that rule and lack of such notice was not excused for good cause. Finding that the evidence was inadmissible under Evidence Rule 404(b) and that it was prejudicial, we reverse and remand for a new trial.
In Thomas D. Dillman v. State of Indiana , a 7-page opinion, Judge Pyle concludes:
In light of the above factors, we conclude that, while the trial court erred, its error did not fit the fundamental error exception to waiver. Accordingly, we conclude that Dillman waived his argument by failing to appeal the trial court’s November 23 order. As a result, he was not able to subsequently attack the trial court’s order collaterally through his motion to release his cash bond, and the trial court properly denied his motion.
NFP civil opinions today (2):

Julianna Eagan, formerly Julianna Paciorkowski v. Christopher Paciorkowski (NFP)

Charles E. Justise, Sr. v. Indiana Department of Correction (NFP)

NFP criminal opinions today (10):

Julius J. Rice v. State of Indiana (NFP)

John Palatas v. State of Indiana (NFP)

Calvin Turner v. State of Indiana (NFP)

Kalan Murphy v. State of Indiana (NFP)

Bruce Johnson-El v. State of Indiana (NFP)

Herman Gehl, II v. State of Indiana (NFP)

Colby R. McKnelly v. State of Indiana (NFP)

Quenton D. Davis v. State of Indiana (NFP)

Jeffrey Elkins v. State of Indiana (NFP)

Johnnylee Sims v. State of Indiana (NFP)

Posted by Marcia Oddi on September 1, 2014 03:30 PM
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Tax Court issues two Aug. 29th

In Gary Community School Corporation v. Indiana Department of Local Government Finance, a 12-page opinion, Judge Wentworth writes:

This case concerns the Indiana Department of Local Government Finance’s (DLGF) reduction of the Gary Community School Corporation’s exempt debt service fund levy for the 2011 budget year. * * *

In this case, the DLGF’s reduction of the School Corporation’s exempt debt service fund levy is beyond the scope of its authority and unsupported by substantial evidence. Accordingly, the Court REVERSES the DLGF’s final determination and REMANDS the matter for action consistent with this opinion.

In Gary Community School Corporation v. Indiana Department of Local Government Finance, a 5-page opinion, Judge Wentworth writes:

This matter concerns the Indiana Department of Local Government Finance’s (DLGF) Motion to Strike four exhibits that were submitted to the Court in support of the Gary Community School Corporation’s (School Corporation) original tax appeal. The Court denies the Motion in part and grants it in part.

Posted by Marcia Oddi on September 1, 2014 03:13 PM
Posted to Ind. Tax Ct. Decisions

Friday, August 29, 2014

Ind. Decisions - Supreme Court stays 2nd Lake right-to-work ruling, will hear 1st on Thursday

The Supreme Court has issued a stay in the second Lake County right-to-work case, according to a brief AP story late this afternoon:

INDIANAPOLIS — The Indiana Supreme Court has ordered a northwest Indiana judge's ruling striking down the state's right-to-work law be stayed.

The ruling signed Friday by new Chief Justice Loretta Rush stays an order by Lake County Judge George Paras in July that determined the law violates the state constitution by forcing unions to provide services to workers without payment. The order stays that ruling until the conclusion of the state's appeal of the ruling or until the high court issues a different ruling.

The Supreme Court also declined to consolidate that case with a similar case involving Indiana's right to work law because oral arguments are scheduled for Thursday in one case and briefs haven't been filed in the other.

For background, see this post on the Zoeller, et al. v. James Sweeney, et al. oral argument scheduled for Thursday, Sept. 4th, and its links.

[More]
From a release from AG Zoeller's office:
Today the Indiana Supreme Court granted the State’s unopposed motion to stay Judge Paras’ judgment in the United Steel case. The stay means Judge Paras’ ruling will not be in force until the appeal of the United Steel case is concluded or until further order of the Supreme Court. In September of last year, the separate judgment in the Sweeney case also was stayed. With both Lake County court rulings now stayed for the time being pending appeal, the State is not legally prevented from enforcing the Indiana right-to-work law’s provisions.

Meanwhile, the Indiana Supreme Court today also denied the Sweeney plaintiffs’ motion to consolidate their case with the United Steel case. The Supreme Court noted the Sweeney appeal already is fully briefed and scheduled for oral argument this Thursday, Sept. 4, whereas briefs have not yet been filed in the United Steel appeal.

Since the legal issues in the two lawsuits are similar and interrelated, the State of Indiana had consented to the Sweeney plaintiffs’ request to consolidate two cases as long as the State’s stay request also was granted. But in light of Court’s order today denying consolidation, the State will proceed with the original date for oral argument on Sweeney next Thursday in the Indiana Supreme Court. The appeal in United Steel will occur on a different timetable.

All five Supreme Court justices concurred in both of today’s rulings – granting the stay and denying consolidation -- that were signed by Indiana Chief Justice Loretta H. Rush.

ILB: As of this writing, neither of today’s rulings – granting the stay and denying consolidation - are available on the Supreme Court website.

Posted by Marcia Oddi on August 29, 2014 04:55 PM
Posted to Ind. Sup.Ct. Decisions

Ind. Law - Former Indiana law blogger under disciplinary commission scrutiny

"Indiana high court warns Richmond attorney" is the headline to this story today by Bill Engle in the Richmond Palladium Item. The long story begins:

The Indiana Supreme Court has threatened sanctions against Richmond attorney E. Thomas Kemp for his refusal to cooperate with an apparent investigation being conducted by the court's Disciplinary Commission.

The court this week gave Kemp 10 days to explain why he has failed to cooperate with the commission's investigation into grievances filed against him.

Kemp, who formerly worked in private practice with an office at 134 S. Eighth St. in Richmond, worked in the Wayne County Public Defender's office from July 2013 until he resigned July 15 of this year.

The supreme court order threatens to suspend Kemp's license to practice law in Indiana. Kemp's license was suspended in June for his failure to meet ongoing educational requirements.

It was not clear Thursday what other sanctions the court could take against Kemp if he fails to respond to its latest order. Records of disciplinary investigations are not open to the public.

Kara Kenney of WRTV 6 broke this story on Wednesday evening. Here is the story, plus video.

ILB: E.Thomas Kemp, Doug Masson, and I all started blogging at about the same time, over ten years ago. A link to Kemp's blog, KEMPlog, used to appear in the right-hand column of the ILB, as an Indiana resource, but I removed it a number of years ago because it appeared to be moribund. (The ILB still links to Masson's blog.) Here is an ILB reference to Kemp's blog, from 2006.

Posted by Marcia Oddi on August 29, 2014 08:43 AM
Posted to Indiana Law

Thursday, August 28, 2014

Ind. Decisions - Court of Appeals issues 1 today (and 8 NFP)

For publication opinions today (1):

In Nightingale Home Healthcare, Inc. v. Carey Helmuth and Physiocare Home Healthcare, LLC, a 10-page opinion, Judge Riley writes:

Issue: Whether the trial court properly found, as a matter of law, that a ten-day break in employment more than two years ago marked the commencement of Helmuth’s Non-Compete Agreement.

Nightingale is an Indiana corporation engaged in the business of providing in-home healthcare, hospice care, and private duty care to Indiana residents. On January 24, 2008, Helmuth commenced his employment with Nightingale as a patient advocate, promoting Nightingale’s home healthcare services in the community and to facilities and physicians who were in a position to refer patients. As a condition of his employment, Helmuth was required to enter into a Non-Compete Agreement, which protects Nightingale’s proprietary and confidential information and geographically restricts Helmuth’s ability to unfairly compete with Nightingale for a period of two years after separation from the company. Every Nightingale employee signs a Non-Compete Agreement, and it is known and understood by all employees that such agreements are an essential term and condition of their employment.

On October 16, 2009, Nightingale terminated Helmuth’s employment for “substandard work” and “violation of company policies.” (Appellant’s App. p. 250). After his termination from Nightingale, Helmuth ceased to receive compensation, benefits, or perform tasks for the company. He began the process to collect unemployment compensation benefits. However, based on conversations between Nightingale and Helmuth following his termination, Nightingale offered “to revoke his termination” and have him “return to work in his prior position subject to the [Non-Compete Agreement] and the prior terms and conditions of his employment.” (Appellant’s App. p. 186). On October 26, 2009, Nightingale re-hired Helmuth. Helmuth was never asked to, nor did he sign a new Non-Compete Agreement.

Helmuth’s employment with Nightingale ended on March 5, 2012. Almost immediately thereafter, Helmuth accepted employment with Physiocare as a patient advocate, a similar position to the one he held during his employment with Nightingale and in the similar geographical market he previously worked in. * * *

Mindful that non-compete agreements are disfavored by law and strictly construed against the employer, we conclude that there is no issue of material fact that Helmuth was indeed separated from Nightingale on October 16, 2009, which marked the starting point of the two-year restrictive period of the Non-Compete Agreement. Absent the execution of a new non-compete agreement on October 26, 2009 or a written extension of the prior Non-Compete Agreement, Helmuth’s restrictive period ended on or about October 16, 2011. Therefore, at the time of entering into an employment relationship with Physiocare in May of 2012, Helmuth was no longer bound by the provisions of the Non-Compete Agreement.

NFP civil opinions today (3):

In Roger Long v. Advanced Pain Management (NFP), a 9-page, 2-1 opinion, Judge Riley concludes:

Thus, finding no basis on which to affirm the trial court’s decision, we conclude that the trial court erred in denying Long’s motion. Therefore, we reverse and remand this case for further proceedings.

ROBB, J. concurs
BRADFORD, J. dissents with separate opinion [which reads in full] I respectfully dissent. Given our preference to decide cases on the merits, the discretion afforded to a trial court in managing its docket, and the fact that I believe that the trial court was in the best position to gauge whether Long’s request for dismissal of the underlying action pursuant to Indiana Trial Rule 41(E) should have been granted, I would affirm the judgment of the trial court.

In the Matter of the Termination of the Parent-Child Relationship of: D.S. (Minor Child) and T.S. (Mother) v. The Indiana Department of Child Services (NFP)

In re the Involuntary Termination of the Parent-Child Relationship of: A.K. & H.K. (minor children) and A.K. (Mother) v. The Indiana Department of Child Services (NFP)

NFP criminal opinions today (5):

Ryan Worline v. State of Indiana (NFP)

David K. Asiedu v. State of Indiana (NFP)

Mitchell Mulnix v. State of Indiana (NFP)

Monisha Rhodes v. State of Indiana (NFP)

Daryl Gilbert v. State of Indiana (NFP)

Posted by Marcia Oddi on August 28, 2014 02:06 PM
Posted to Ind. App.Ct. Decisions

Ind. Courts - "Legal smackdown: Judge offers sharp rebuke to gay marriage ban" Plus more.

That is the headline to this editorial today in the Fort Wayne Journal Gazette:

Indiana's effort to reverse an order that overturned the state's ban on gay marriage has squandered public time and resources. But under relentless questioning from Judge Richard Posner and two of his colleagues, the state's presentation before a 7th Circuit Court of Appeals panel Tuesday went from wasteful to embarrassing.

Posner is a jurist and legal scholar of the first order. Appointed to the court in 1981 by President Ronald Reagan, he has written almost 40 books and is a senior lecturer at the University of Chicago Law School. He is generally regarded as a moderate conservative.

But there was nothing moderate about Posner's grilling of Indiana Solicitor General Thomas Fisher and attorney Timothy Samuelson, who represented the state of Wisconsin, which has joined with Indiana in attempting to maintain their bans.

As The Journal Gazette's Niki Kelly reported, Fisher argued that Indiana needs to limit marriage to heterosexuals so that unintended children would be raised in durable relationships.

But Posner pointed out that Indiana allows sterile heterosexual couples to marry, and that it allows first cousins older than 65 to marry precisely because they're unable to procreate at that age. Pointing out that gay couples are allowed to adopt children, he asked Fisher what benefit to the state could outweigh the harm done to children when their adopting parents are not allowed to marry. At various points, Posner called Fisher's arguments “pathetic” “ridiculous” and “absurd.”

But possibly the most devastating exchange occurred when Samuelson attempted to make what Posner called “the tradition argument.”

Referring to a 1967 decision by the Supreme Court, Posner said, “There was a tradition of not allowing black and white, and, actually, other interracial couples from marrying. It was a tradition. It got swept aside. Why is this tradition better?”

The three-judge appeals panel may take several weeks to deliver its ruling, and the issue is likely to be taken up by the Supreme Court during the coming year.

But it's unlikely that anyone, at any level, will do a better job of shredding the arguments for banning gay marriage better than the judges in Chicago did Tuesday.

From this column last Sunday (before the Tuesday oral argument) by Lesley Weidenbener in the Louisville Courier Journal:
INDIANAPOLIS – Does it even matter?

That’s the question I’ve been mulling as attorneys prepare to argue the constitutionality of Indiana’s law banning same sex marriage before a three-judge panel of the 7th Circuit Court of Appeals on Tuesday.

After all, two other federal appeals courts have already ruled on the matter — both deciding that such bans violate the U.S. Constitution’s equal protection clause. And a third appeals court is expected to rule anytime.

Obviously, those decisions only apply to the states in their regions — not Indiana. But the U.S. Supreme Court is expected to take up one or more of those cases as soon as this fall and its decisions become the law of the land.

So does what the Chicago-based 7th Circuit decide even make a difference? Indiana Attorney General Greg Zoeller says yes. He called the 7th Circuit — which covers Indiana, Illinois and Wisconsin — a “very strong court” with a number of influential judges.

“Quite frankly, a number of my colleagues would like to hear from the 7th Circuit,” he said.

And finally, Mark Joseph Stern of Slate yesterday put together a number of clips from Tuesday, in this not-to-be-missed article headed: "Listen to a Conservative Judge Brutally Destroy Arguments Against Gay Marriage."

Posted by Marcia Oddi on August 28, 2014 11:03 AM
Posted to Indiana Courts

Environment - 2014 Edition of Indiana Environmental Statutes now available!

This is the new, 2014 edition of the annual publication, the Indiana Environmental Statutes, that I edit and publish each year. The publication is sponsored by the Environmental Law Section of the Indiana State Bar Association.

It is a convenient desktop resource, including Title 13 (Environment) of the Indiana Code, plus the Administrative Procedures Act (AOPA) and numerous other, related, Indiana statutes.

This year the soft-bound volume is 566 pp. and costs $30.00 plus shipping (note that shipping is less if you pool orders).

Order online
(a preview of several pages also is provided at this link).

Posted by Marcia Oddi on August 28, 2014 10:42 AM
Posted to Environment

Wednesday, August 27, 2014

Ind. Decisions - Court of Appeals issues 1 today (and 7 NFP)

For publication opinions today (1):

In Marquise Lee v. State of Indiana , a 12-page opinion on rehearing, Judge Najam writes:

Marquise Lee petitions for rehearing after we affirmed his conviction for attempted aggravated battery, a Class B felony, in a not-for-publication memorandum decision. See Marquise Lee v. State, No. 49A02-1310-CR-869, 2014 WL 2187702 (Ind. Ct. App. May 27, 2014) (“Marquise Lee I”). Marquise and two of his confederates, Latoya Lee and Billy Young, were each charged with the murder of Ramon Gude, they were tried jointly to the bench, and, on their joint motion, the trial court entered an involuntary dismissal of the State’s murder charges. However, in doing so the court “kept the case open for consideration of lesser included battery charges.” Id. at *1. The court then found each of the three defendants guilty of attempted aggravated battery, and the defendants separately appealed. Following this panel’s decision, another panel of this court unanimously reversed Young’s conviction. Young v. State, ___ N.E.3d ___, 2014 WL 2616189 (Ind. Ct. App. June 12, 2014), reh’g denied (July 22, 2014). A third panel of this court unanimously affirmed Latoya’s conviction and sentence. Latoya Lee v. State [NFP], No. 49A02-1310-CR-867, 2014 WL 2587313 (Ind. Ct. App. June 10, 2014), reh’g granted and decision aff’d (August 27, 2014) (“We grant rehearing to acknowledge our awareness of the decision in Young but decline to reverse our earlier decision . . . as [Latoya] did not raise any issue concerning the charging information on appeal.”). Marquise now petitions for rehearing and asks that this panel follow the Young panel’s reasoning. We decline to do so and affirm our prior decision. * * *

In sum, we decline Marquise’s request to follow the reasoning of the Young panel. We hold that Marquise did not preserve this issue for appellate review and that the trial court did not commit fundamental error when it entered judgment against Marquise for attempted aggravated battery as an inherently lesser included offense to the State’s charge of murder. As such, we grant Marquise’s petition for rehearing and we affirm our prior decision.
Affirmed.

Some ILB observations: The panels are:
  • M. Lee (this opinion): Najam, Vaidik, Brown
  • L. Lee: Baker, Barnes, Crones
  • Young: Robb, Riley, Bradford
Today's opinion on rehearing is For Publication, while the original May 27, 2014 opinion is Not for Publication. Today's opinion cites Latoya Lee v. State, which is NFP. A week ago we saw Brandon Brummett v. State of Indiana (NFP), a one-paragraph opinion on rehearing, while the original June 2nd opinion is For Publication.

NFP civil opinions today (4):

In Cohen & Malad, LLP v. John P. Daly, Jr., Golitko & Daly, P.C. and Golitko Legal Group, P.C. (NFP), a 15-page, 2-1 opinion, Judge Baker writes:

In this case, faced with a situation in which appellant-defendant John Daly took twenty-four cases with him when he left the firm of appellant-plaintiff Cohen & Malad LLP (C&M), we are asked to examine the correct apportionment of attorney fees. C&M appeals the trial court’s determination that it was not due quantum meruit compensation from appellee-defendants John Daly Jr., Golitko & Daly, P.C. (Golitko & Daly), and Golitko Legal Group P.C. More particularly, C&M argues that the trial court failed to apply the quantum meruit recovery rule established by Galanis v. Lyons & Truitt and contends that the trial court erred in holding that C&M failed to establish any right of recovery against Golitko & Daly. We find that C&M failed to prove that Daly was unjustly enriched to its detriment and conclude that C&M failed to establish any right of recovery against Golitko & Daly. Therefore, we affirm the judgment of the trial court. * * *

BARNES, J., concurs, and CRONE, J., dissents with opinion. [ which begins, at p. 14] I respectfully dissent. While it may be true that C&M was “very well compensated” for Daly’s time while he was a salaried associate at the firm, that compensation is simply irrelevant to C&M’s quantum meruit claim for the 1000-plus hours that C&M’s attorneys contributed to the twenty-four cases that Daly took with him to Golitko & Daly. Pursuant to Galanis, C&M should be compensated for the useful work that its attorneys performed on those cases, and it should be able to recover that compensation from Golitko & Daly, which possesses the disputed fees and otherwise would be unjustly enriched by C&M’s efforts.

Jaro Mayda II v. Melinda D. Barnette (NFP)

Layne L. Dellamuth and Anita M. Dellamuth v. Ken's Carpets Unlimited, Inc. d/b/a Carpets Unlimited (NFP)

Evanston Insurance Company and Markel Corporation v. Samantha Meeks Family Practice, Inc., Samantha Meeks, and George Edwin Grant, et al. (NFP)

NFP criminal opinions today (3):

Frank Blythe v. State of Indiana (NFP)

Thomas Walter Gorski v. State of Indiana (NFP)

Latoya C. Lee v. State of Indiana (NFP)

Posted by Marcia Oddi on August 27, 2014 01:42 PM
Posted to Ind. App.Ct. Decisions

Tuesday, August 26, 2014

About this Blog - ILB gone fishing

Expect little ILB activity the rest of the week.

Posted by Marcia Oddi on August 26, 2014 09:41 PM
Posted to About the Indiana Law Blog

Ind. Decisions - Supreme Court decides one today

In Indiana Patient's Compensation Fund v. Judy Holcomb, Personal Representative of the Estate of Mable Louise Cochran, Deceased, a 7-page, 5-0 opinion, Justice Dickson writes:

This case presents a question of first impression: whether Indiana's Medical Malpractice Act's cap on attorney fees from a Patient Compensation Fund award also applies to reduce the Fund's liability. In this adult wrongful death medical malpractice case, the trial court ordered payment by the Fund to the Estate, without any reduction to reflect the limitation on attorney fees. In a divided opinion, the Court of Appeals reversed and remanded. Ind. Patient's Comp. Fund v. Holcomb, 998 N.E.2d 989 (Ind. Ct. App. Nov. 27, 2013). We granted transfer and now affirm the trial court. * * *

In conclusion, we decline to construe the Fee Cap Provision of the Indiana Medical Malpractice Act, Ind. Code § 34-18-18-1, to reduce the Patient's Compensation Fund's liability to a plaintiff AWDS claimant. The Fee Cap Provision applies only to cap the fees that the plaintiff's lawyer may charge his or her client as to the award the client receives from the Fund, but it does not lessen the Fund's liability to a claimant. We affirm the judgment of the trial court.

Oral argument was held 6/12/14.

Posted by Marcia Oddi on August 26, 2014 03:57 PM
Posted to Ind. Sup.Ct. Decisions

Ind. Courts - "Indiana, Wisconsin Lawyers Get Tough Questions Over States’ Marriage Bans"

Award-winnning reporter Chris Geidner of Buzzfeed, who just tweeted "Y'all. I've seen 10 federal appellate arguments over marriage, and I ain't seen nothing like today," has this story about today's arguments. Some quotes:

CHICAGO — Lawyers for Indiana and Wisconsin on Tuesday tried, with little success, to explain to three judges why their laws banning same-sex couples from marrying were constitutional.

In the most lopsided arguments over marriage bans at a federal appeals court this year, the 7th Circuit Court of Appeals judges clearly were ready to strike down the bans — with the only real question being what reasoning they will use to do so.

From the start of the arguments over Indiana’s ban at a little past 9:30 a.m. until the end of the arguments over Wisconsin’s ban at 11:11 a.m., 7th Circuit Judges Richard Posner, Ann Claire Williams, and David Hamilton pounded the two lawyers defending the bans with dismissive, incredulous questions about the basis and purpose for their respective states’ bans.

For the lawyers representing the same-sex couples, the judges almost assumed that the bans violate the constitutional guarantee of equal protection of the laws. The only question in the hearing Tuesday was whether the bans also violated due-process guarantees because marriage is a fundamental right.

Within minutes of Indiana Solicitor General Thomas Fisher taking to the podium to start his arguments, the tone was set.

“Why do you prefer heterosexual adoption to homosexual adoption?” Judge Posner, appointed to the bench by President Reagan, asked. When Fisher began responding that the marriage laws were unrelated to adoption, Posner was almost vitriolic in his response, saying of the state’s treatment of the children of same-sex couples, “You want them to be worse off.”

The reason for Posner’s unbending focus on the impact of the marriage ban became clear later in the arguments, when he talked about the “harrowing” stories of the discrimination faced by the children of same-sex couples that were detailed in the Family Equality Council’s amicus curiae, or friend-of-the-court, brief submitted in the Wisconsin case.

During Fisher’s rebuttal time, generally used to respond to arguments made by opposing counsel, Posner returned to the issue of the children, describing the amicus brief and asking Fisher, “It didn’t make an impression?”

At different times, Posner referred to Fisher’s arguments as “pathetic,” “ridiculous,” and “absurd.”

Remarkably, Wisconsin’s counsel fared worse.

There is much more in the story.

Posted by Marcia Oddi on August 26, 2014 03:44 PM
Posted to Ind Fed D.Ct. Decisions

Ind. Courts - "Judges quiz state about gay marriage ban's impact on kids"

Here is the story posted by Jill Disis and Tim Evans of the IndyStar.

Posted by Marcia Oddi on August 26, 2014 02:20 PM
Posted to Ind Fed D.Ct. Decisions

Ind. Decisions - "Same sex marriage bans come under tough questioning"

Here is the story posted by the NWI Times staff. A few quotes:

Judge Richard Posner, who was appointed by President Ronald Reagan, was dismissive when Wisconsin Assistant Attorney General Timothy Samuelson repeatedly pointed to 'tradition' as the underlying justification for barring gay marriage.

"It was tradition to not allow blacks and whites to marry — a tradition that got swept away," Posner said. Prohibition of same sex marriage, he said, is "a tradition of hate ... and savage discrimination."

Posner frequently cut off Indiana Solicitor General Fischer, just moments into his presentation and chided him to answer his questions.

At one point, Posner ran through a list of psychological strains of unmarried same-sex couples, including having to struggle to grasp why their schoolmates' parents were married and theirs weren't.

"What horrible stuff," Posner said. What benefits to society in barring gay marriage, he asked, "outweighs that kind of damage to children?"

The answer has to do with "procreation," Fisher answered.

"All this is a reflection of biology," Fisher said. "Men and women make babies, same-sex couples do not... we have to have a mechanism to regulate that, and marriage is that mechanism."

Posted by Marcia Oddi on August 26, 2014 02:15 PM
Posted to Ind Fed D.Ct. Decisions

Ind. Decisions - "Indiana, Wisconsin defend gay-marriage bans: Judge asks for reason behind state laws"

Here is the preliminary version of Niki Kelly's coverage today for the Fort Wayne Journal Gazette of the State's appeal of district Judge Young's ruling in favor a same-sex marriage. Some quotes:

The questioning by the 7th Circuit Court of Appeals judges was hard-hitting – using terms such as “ridiculous,” “absurd,” and saying the state’s attorneys were talking in circles.

“Don’t you have to have some empirical or common-sense reason to ban marriage?” asked Judge Richard Posner, who most actively questioned the lawyers.

“What is the benefit of the law? Who is being helped by this law if anyone? What is the harm of allowing these people to marry? Does it hurt heterosexual marriage?”

Posted by Marcia Oddi on August 26, 2014 02:09 PM
Posted to Ind Fed D.Ct. Decisions

Ind. Decisions - 7th Circuit decides one today

In Roy Smith v. Richard Brown (ND Ind., Moody), a 17-page opinion, Judge Tinder writes:

Roy A. Smith appeals the district court’s denial of his habeas petition, through which he seeks to set aside his Indiana criminal conviction due to allegedly ineffective assistance of counsel. Although we agree that it appears Smith’s counsel was particularly deficient, Smith has failed to demonstrate how his lawyer’s substandard effort prejudiced his case in light of the overwhelming evidence against him. We therefore affirm the district court’s judgment.

Posted by Marcia Oddi on August 26, 2014 01:58 PM
Posted to Ind. (7th Cir.) Decisions

Ind. Courts - Here is the 7th Circuit oral argument in the Indiana cases

Here is the oral argument in the Indiana cases. The first voice you hear is Judge Posner.

[UPDATED]
And here is the Wisconsin oral argument.

Posted by Marcia Oddi on August 26, 2014 01:05 PM
Posted to Indiana Courts

Ind. Decisions - Court of Appeals issues 8 today (and 7 NFP)

For publication opinions today (8):

In In re the Marriage of: Wade R. Meisberger v. Margaret Bishop f/k/a Margaret Meisberger, a 13-page opinion, Judge Brown writes:

Wade Meisberger (“Father”), pro se, appeals, the trial court’s Order on All Pending Issues denying his Motion to Modify Parenting Time, as well as his motion to correct error. Father raises one issue which we revise and restate as whether the court erred in denying his Motion to Modify Parenting Time and motion to correct error. We remand.
In Daryl Schweitzer and Lynn Schweitzer v. American Family Mutual Insurance Company and Jennifer Gholson Insurance Agency, a 20-page opinion, Judge Brown writes:
Based upon the record, we find the circumstances do not constitute a special relationship between Gholson and the Schweitzers and no special circumstances exist which would give rise to a duty to advise. Accordingly, Gholson was under no duty to advise the Schweitzers about the adequacy of the coverage or any alternative coverage which may have been available, and Gholson did not breach her general duty. See Myers, 921 N.E.2d at 882-890. Further, Gholson was under no duty to provide a replacement cost estimate, and an expectation of full replacement coverage does not in itself impose a duty on an agent to provide advice to an insured regarding the amount of coverage that should be purchased. Id. at 889. The trial court did not err in granting summary judgment in favor of Gholson. * * *

Based upon the designated evidence set forth above and in the record, we find the Schweitzers are not entitled to additional payments under their homeowners insurance policy and that the trial court did not err in granting summary judgment in favor of American Family.

For the foregoing reasons, we affirm the trial court’s grant of summary judgment in favor of Appellees.

In Jeffrey Crider v. Christina Crider, a 57-page opinion, Judge Barnes writes:
Jeff Crider appeals various parts of the trial court’s decree dissolving his marriage to Christina Crider, as well as several post-judgment orders. Several business entities in which Jeff has an interest also have intervened in this case. We affirm in part, reverse in part, and remand. * * *

We cannot say the trial court erred in ordering Jeff to pay to Christina an equalization judgment of $4,752,066, plus interest accruing after ninety days, and to pay any attorney fees Christina incurs in collecting the judgment. We also find no clear error in the trial court’s valuations of CCI, North Park, and Logan, and in its decisions to exclude purported loans made by Robert to Jeff from liabilities of the marital estate; to conclude otherwise would constitute reweighing the evidence. We also affirm the trial court’s decision to delay reduction of Jeff’s child support obligation for ninety days. However, the trial court’s decision to modify the obligation after the first appeal was initiated is void, and Jeff’s support obligation remains at $308 per week. We also hold that upon Jeff’s payment of the equalization judgment, the trial court should recalculate Christina’s income and Jeff’s child support obligation accordingly. Although the trial court did not err in granting Christina security interests in Jeff’s CCI stock and his LLC membership interests, we find error in its decision to automatically vest “ownership and control” in those stock and membership interests upon Jeff’s failure to pay the equalization judgment within 180 days. We reverse the dissolution decree to that extent and remand for further proceedings consistent with this opinion. Finally, although the garnishment and attachment orders did not erroneously garnish or attach future-acquired property by Jeff, and it was proper to extend garnishment or attachment to future loan proceeds he may receive from the Crider Entities, we remand for the trial court to enter amended garnishment, attachment, and child support income withholding orders that comply with Indiana Code Section 24-4.5-5-105.

In State of Indiana v. Brandon Scott Schulze, a 6-page opinion, Judge May writes:
The State of Indiana appeals the reinstatement of Brandon Scott Schulze’s driving privileges, which had been suspended because he refused to take a chemical test for alcohol intoxication in violation of the Indiana Implied Consent law. See Ind. Code § 9-30-6-7. The trial court reinstated Schulze’s privileges because the deputy who offered the test to Schulze was not certified to administer the test. The State argues the court’s decision was erroneous because Schulze’s refusal to take the test obviated any need for a deputy trained to administer the test. We reverse.
In Louise Frontz, Guardian of the Person and Estate of Brian O'Neal Frontz, and Brian Frontz v. Middletown Enterprises, Inc., d/b/a Sinclair GlassIn Steven Anderson v. State of Indiana , a 6-page opinion, Judge May writes:
Steven Anderson appeals his conviction of Class D felony escape. He asserts the trial court committed fundamental error by allowing the State to introduce evidence of the events leading up to his escape. We affirm. * * *

Anderson’s actions on June 4 were not evidence of a prior bad acts which would prejudice him, but merely part of the “single transaction” of escape, and therefore the evidence from June 4 was properly admitted to prove an escape that continued into June 5.

In Ann Withers v. State of Indiana , a 10-page opinion, Judge Crone writes:
Ann Withers appeals the termination of her placement in the Madison County Drug Court program and reinstatement of her sentences in causes 48C04-1207-FB-1287 (“Cause 1287”) and 48C04-1208-FD-1440 (“Cause 1440”). She argues that the trial court committed fundamental error in taking judicial notice of attendance reports in her Drug Court file and abused its discretion in terminating her placement and reinstating her sentences. We conclude that the trial court was authorized to take judicial notice of the attendance reports pursuant to Indiana Evidence Rule 201(b)(5) and did not abuse its discretion in terminating her placement and reinstating her sentences. Therefore, we affirm.
In Lamont Carpenter v. State of Indiana , a 9-page opinion, Judge May concludes:
As the jury was not aware Carpenter was an SVF [seriously violent felon], he was not prejudiced by the partial bifurcation of his trial. Additionally, the trial court did not abuse its discretion in admitting Exhibit 17 as it was not hearsay, and Carpenter was not subjected to double jeopardy when he was convicted of possession of a firearm by an SVF and possession of a handgun with altered identifying marks. Accordingly, we affirm.
NFP civil opinions today (4):

In re the Marriage of: Robin D. (Hanson) Blankenship and James E. Hanson, James E. Hanson v. Robin D. (Hanson) Blankenship (NFP)

Leroy Shoaff v. Denisa Dekker (NFP)

Orange County v. Review Board of the Indiana Department of Workforce Development and Daniel Harris (NFP)

Destiny Skeen v. Review Board of the Indiana Department of Workforce Development and Hub Restaurant LLP (NFP)

NFP criminal opinions today (3):

Lawrence Mulry v. State of Indiana (NFP)

Jose B. Rodriguez v. State of Indiana (NFP)

Fernando Miranda v. State of Indiana (NFP)

Posted by Marcia Oddi on August 26, 2014 11:36 AM
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Who will be arguing for the Indiana same-sex marriage plaintiffs? [Updated]

There was some dispute the end of last month as to who would argue the consolidated plaintiffs' position before the 7th Circuit today, as there were three sets of plaintiffs, with three sets of attorneys. The Baskin counsel petitioned the court to be permitted to represent all three sets of plaintiffs, as detailed in this July 31st ILB post. The 7th Circuit summarily denied the Lambda Legal motion, as posted here, August 1st:

IT IS ORDERED that the motion is DENIED. In the absence of an agreement, plaintiffs' counsel in appeal nos. 14-2386, 14-2387, and 14-2388 will each be given five minutes to present an oral argument.
The attorneys subsequently worked it out. Lambda Legal attorney, Camilla B. Taylor, is to argue on behalf its Baskin plaintiffs, Ken Falk of the ACLU is to represent the plaintiffs in the two other combined cases, Fuji and Lee. I believe the agreed time split is 8 minutes and 12 minutes.

[More] Tim Evans of the Indianapolis Star has this post, headed "Same-sex marriage case: A look at the dueling attorneys," with interviews of Falk and Fisher, but not Taylor.

Posted by Marcia Oddi on August 26, 2014 10:15 AM
Posted to Indiana Decisions

Ind. Courts - 7th Circuit Judge David Hamilton is based in Bloomington, at IU Maurer Law

Here is a story yesterday reported by David Leonard for Bloom Magazine, "Celebrating Life in Bloomington, Indiana." It begins:

The chambers of United States Court of Appeals Judge David F. Hamilton are like no other.

The Court of Appeals ranks only below the Supreme Court as the highest court in the U.S. judiciary, and Hamilton’s suite in the Maurer School of Law at Indiana University is the only federal appeals court office in the country located on a college campus.

The arrangement has multiple benefits for the 7th Circuit Court judge, his staff, and the university. It spares Hamilton, who was President Barack Obama’s first judicial appointment in March 2009, the commute from his Bloomington-area home to Indianapolis, where he typically would establish his office, and where from 1994 to 2009 he served as a judge in the U.S. District Court for the Southern District of Indiana.

“The clerks and I participate a great deal in the life of the law school,” Hamilton says. “Conferences, lectures, various events. My law clerks get involved with things like helping out with moot court. And I make some guest appearances in classes.” Hamilton also has discussions almost daily with the law school faculty, not about specific cases, but about various areas of law in which the professors are experts.

It’s a rich intellectual environment for Hamilton and his law clerks, who typically would be secluded doing research and writing opinions in a federal courthouse or commercial office tower. “Inherently, this job is isolating,” says Hamilton. “This setting is a great antidote to that.”

More from the story:
Hamilton travels to the court headquarters in Chicago every couple of weeks for business he can’t complete in Bloomington. Most cases are resolved by teams of three judges. It’s rare that the court meets with all judges present.

Hamilton is a Bloomington native whose father, Richard, was the first minister at St. Mark’s United Methodist Church when it was founded in 1954. Hamilton grew up in Elm Heights, learned to play tennis at Bryan Park, and went on to earn degrees at Haverford College and Yale Law School. Hamilton also is the nephew of Lee Hamilton, the 17-term Indiana congressman.

Posted by Marcia Oddi on August 26, 2014 09:19 AM
Posted to Indiana Courts

Ind. Decisions - 7th Circuit SSM panel is Judges Posner, Hamilton and Williams [Watch for Updates]

Watch for more.

Jill Disis ‏@jdisis IndyStar
The 3-judge panel: Posner, Hamilton and Williams, same panel that vacated the stay for plaintiffs Amy Sandler and Niki Quasney. #7thCircuit

ILB:
It was a one-sentence order, issued July 1st.

Here is today's 7th Circuit calendar.

The 7th Circuit makes audios (MP3s) of its oral arguments available after the conclusion of the arguments. They will be accessible here. It should be easy to distinguish the judges' voices -- J. Richard Posner's voice is distinctive, and it should be easy to tell J. David Hamilton's voice from J. Ann Claire Williams.

Posted by Marcia Oddi on August 26, 2014 09:06 AM
Posted to Indiana Decisions

Ind. Courts - Still more on "Indiana doctor accused of road rage shooting arraigned in Madison County Ky"

Remember this story from Oct. 10, 2013, where the former Indiana prison's doctor's act was caught on video? Here is the follow-up today, from Bill Robinson of the Richmond Kentucky Register, headed "Indiana doctor’s sentence likely to be diverted." Some quotes:

A former Indiana prison doctor charged with wanton endangerment in a September road-rage incident on Interstate 75 in Madison County entered a guilty plea Monday.

Perrin T. Dobyns told Madison Circuit Judge Jean C. Logue he pointed and fired a BB pistol at another motorist who pulled alongside him.

The other motorist recorded the incident with a smart phone and posted it to an online video site.

At one point in the proceedings leading up to Monday’s plea, Dobyns claimed he felt threatened by the other motorist and pointed the pistol to keep him at bay.

Assistant Commonwealth’s Attorney Jennifer Smith recommended Dobyns be given a three-year diverted sentence with supervision. The Kentucky penalty for wanton endangerment ranges from one to five years. Logue scheduled sentencing for Oct. 2. * * *

Dobyns is unlikely to resume practice as a physician anytime soon, because the Indiana Board of Medical Licensing on March 31 indefinitely suspended his medical license and fined him $500. * * *

According to a findings of fact document posted on the medical licensing board’s website, Dobyns has a history of drug abuse, dating back to 2001 when he practiced medicine in Oklahoma.

The next year, he relocated to Indiana where he continued to abuse alcohol and drugs and then spent 10 weeks in a Chicago in-patient treatment program.

In 2007, Dobyns relocated to North Carolina where he relapsed, according to the findings, resulting in his medical license being suspended there.

He moved back to Indiana where his medical license was given probationary renewal in 2008. In 2011, an administrative law judge recommended he be granted conditional federal Drug Enforcement Administration registration.

However, the Indiana licensing board found the Kentucky road-rage incident reflected “a continuing pattern of conduct demonstrating (Dobyns’) inability to exercise reasonable care.” It also stated he is “unfit to practice due to professional incompetence as he continues to engage in a pattern of conduct which demonstrates an inability to exercise reasonable care and diligence.”

Posted by Marcia Oddi on August 26, 2014 08:52 AM
Posted to Indiana Courts

Monday, August 25, 2014

Ind. Decisions - Transfer list for week ending August 22, 2014 [Updated]

No word yet on whether the Supreme Court considered transfer petitions last Friday.

[Updated at 5:44 PM]
The ILB has now learned that there were no transfer dispositions last week, and hence, there is no transfer list.

Posted by Marcia Oddi on August 25, 2014 12:42 PM
Posted to Indiana Transfer Lists

Ind. Decisions - Supreme Court decides one today, a reversal by the new Chief Justice

In Indiana Department of State Revenue v. Caterpillar, Inc., an 11-page, 5-0 opinion, Chief Justice Rush writes:

Indiana’s tax statutes expressly authorize corporate taxpayers to deduct some foreign source dividend income when calculating Indiana adjusted gross income. But Caterpillar attempted to use that same deduction to increase its Indiana net operating losses available for carryover to other tax years. We hold that the plain meaning of the Indiana tax statutes disallows Caterpillar’s use of the foreign source dividend deduction outside of its legislatively authorized context. We also hold that Caterpillar has not met its burden to show that disallowing the deduction discriminates against foreign commerce under the Foreign Commerce Clause of the Federal Constitution. Accordingly, we reverse the Tax Court’s decision and grant summary judgment for the Indiana Department of State Revenue. * * *

At its core, the resolution of this case is straightforward: The Indiana NOL statute does not reference or incorporate the foreign source dividend deduction, and the Tax Court clearly erred in holding that it did. The Department correctly recognized that the Indiana tax statutes did not authorize Caterpillar to include foreign source dividend income in its Indiana NOL calculation. We also conclude that Caterpillar has not met its burden to show the Indiana tax statutes unconstitutionally discriminate against foreign commerce. * * *

In most cases, we exercise “cautious deference” to the Tax Court’s opinion because we recognize its unique expertise in Indiana tax law. Miller Brewing Co., 975 N.E.2d at 803. But when the plain meaning of the statute is unambiguous, we are in no worse position than the Tax Court to apply the statute as written, especially when the Tax Court’s conclusion interpolates “extraneous evidence of legislative intent,” id., as it did here. Thus, we hold that the Tax Court clearly erred when it adopted a false symmetry between Indiana AGI and Indiana NOLs, and we decline Caterpillar’s effort to apply the foreign source dividend deduction to its NOL caclulations. * * *

Caterpillar may not deduct foreign source dividends when calculating Indiana NOLs—a conclusion compelled by the plain meaning of the Indiana tax statutes. And Caterpillar has not carried its burden of proving that this conclusion violates the Foreign Commerce Clause. Therefore, we reverse the Tax Court’s judgment and remand with instructions to grant summary judgment to the Department and deny summary judgment to Caterpillar.

Here is the March 28, 2013 Tax Court opinion. Review was granted by the Supreme court on Feb. 7, 2014, following oral argument on Feb. 6th.

Posted by Marcia Oddi on August 25, 2014 12:23 PM
Posted to Ind. Sup.Ct. Decisions

Ind. Courts - "New Supreme Court chief is children’s fiercest advocate"

Great column this weekend, here in the New Albany News & Tribune, written by CNHI's Maureen Hayden:

INDIANAPOLIS — Loretta Rush was already well known around the Statehouse — especially among tour guides — before she was sworn in as the first female chief justice of Indiana’s Supreme Court.

Rush, who was first appointed to the court in late 2012, is a walker and a talker. It’s common to see her taking laps around the third-floor atrium outside her chambers while reading a legal brief, or popping into the courtroom to greet visiting schoolchildren.

The longtime juvenile court judge has an affinity for children. She suspects what they’re thinking as they look around the somber courtroom with its heavy, dark-paneled walls and portraits of 107 almost all-male justices who came before her.

“It’s important for kids to see that we’re real,” Rush said. “You walk into that courtroom and what you see are those pictures of old, frowning guys.”

One day, as she greeted a class of fourth-graders, she heard two small voices ring out: “You were our judge!”

The voices belonged to two boys whom Rush knew. She was the juvenile court judge who oversaw their rescue from an abusive home and who later approved their adoption to loving parents.

Delighted to see them again, Rush invited them into her chambers. There, above her desk, were their pictures — part of a collage of photos of children who’d come before her, under the worst of circumstances, when she presided over cases involving abused, neglected and unwanted children.

The collage is still there. When asked about it, Rush remembers what she told those boys: “You’re famous now. You’re in the Statehouse. You are really important, and when you get through school, we’ll need good leaders like you. Part of you is already here.”

When the Judicial Nominating Commission vetted Rush for the chief’s role, she was asked if she could handle the demands of family and the job. The committee screened four sitting justices. She was the only one asked that question.

Rush diplomatically answered that work-life balance is a challenge for all of her colleagues.

It’s not that she shies from the topic. Rush, 56, is a mother of four — three grown and one at home — and a fierce advocate for children.

As an associate justice, she played a key role in creating the Commission on Improving the Status of Children in Indiana. One of her first tasks as chief was to appoint her predecessor, Justice Brent Dickson, to lead a committee to look into pre-trial decisions made by courts and their impact on families.

She worries, for example, that routinely arresting someone for failing to appear after they’ve been summoned to court, then ordering them to pay a $500 bond to get out of jail, has unintended consequences on people who can least afford it.

“We’ve got a lot of families in Indiana holding it together by a thread,” she said. It doesn’t take much, she added, “before that thread is gone.”

She knows courts can adjust. While on the bench back in Tippecanoe County, she held a weekly night court so defendants wouldn’t lose a day’s pay. She held truancy court at 7:30 a.m. so errant students wouldn’t miss another school day.

Rush longs for a day when it’s not news for a woman to head the state’s high court.

But for now, she embraces the role.

In greeting children in that historic courtroom, she’ll often point out the portrait of Justice Leonard Hackney. In 1893, he wrote the opinion that said women could practice law in Indiana, even though they weren’t allowed to vote.

“See him,” she’ll say. “He was brave. He started the process that got me here.”

Posted by Marcia Oddi on August 25, 2014 11:31 AM
Posted to Indiana Courts

Ind. Courts - Papers editoralize on modernizing Indiana's trial courts

The South Bend Tribune today carries an editorial that initially appeared in the NWI Times, headed "Continue the work of modernizing Indiana's courts":

Indiana's new chief justice, Loretta Rush, has a lot on her plate. She not only has to preside over the Indiana Supreme Court, but also to modernize the state's other courts as well.

Indiana is well on its way toward bringing courtsinto the 21st century, with its expansion of what promises to become a state-wide computerized case management system.

That system lets lawyers file legal documents in electronic form, without having to leave their office. It also opens those documents to easier public access as a result.

That helps attorneys withsmall research staffs -- or none at all -- get information they need to better represent their clients.

It also gives the public a better understanding ofhow the legal process works.

That's the same rationale for our belief that Rush and her colleagues in the judicial system must now grapple with the issue of cameras in the courtroom, an area where Indiana has lagged.

Indiana has considered this issue from time to time, but it remains trapped in the past.

The Indiana Supreme Court and Indiana Court of Appeals allow cameras to re-cord and broadcast their proceedings, but not trials in local courts. And the chief justice allowed The Times to partner with the Lake Superior Court to webcast routine proceedings in a single court-room.

There's also the example of when former Lake Juvenile Court Judge Mary Beth Bonaventura allowed MTV to film "Juvies," a reality show aimed at scaring teens into behaving better.

But the process of gaining judicial approval -- or, more likely, rejection -- to film proceedings in lower courts is too long and cumbersome a process.

We understand and share concerns about not disrupting judicial proceedings. The courts' primary mission should be to dispense justice.

But technology has changed significantly in re-cent years, and cameras are less obtrusive now. They are also pervasive throughout society -- except in Indiana's lower courts.

Allowing use of cameras in lower courts would greatly enhance the public's under-standing of howcourts operate. Operating in the public's eye also builds faith in the judicial process, showing judges have no hidden agenda, just the pursuit of justice.

Rush's agenda for her term as chief justice should include re-examining the court's longstanding reluctance to allow cameras in Indiana courtrooms.

Posted by Marcia Oddi on August 25, 2014 10:55 AM
Posted to Indiana Courts

Environment - "Indiana continues to take on EPA over power plant rules"

Maureen Groppe, Star Washington Bureau, writes today in a lengthy analysis that begins:

WASHINGTON — Four times in recent years, the federal government has proposed controls for power plants that spew pollution and contribute to global warming.

Four times, the state of Indiana has gone to court to fight them.

The state has been part of legal challenges to Environmental Protection Agency rules that would:

• Reduce cross-state air pollution that makes it difficult for some states to meet clean air requirements.

• Limit emissions of mercury and other toxic pollutants.

• Regulate carbon dioxide emissions from power plants and other large stationary sources of greenhouse gas emissions.

And even before a much more significant rule on greenhouse gas emissions is finished next year, Indiana this month joined 11 other states in trying to block the EPA from completing the regulation.

"Indiana I would not put in the group of states that particularly have a high environmental consciousness," said Jim Barnes, a former EPA administrator in the Nixon and Reagan administrations who teaches at the Indiana University Maurer School of Law in Bloomington.

What Indiana does have, Barnes said, is some coal mining, an electrical utility industry that relies heavily on coal and a history of relatively low electricity rates because of that. Add to that conservative leaders leery of the federal government meddling in state affairs.

"So what they're looking to do is to try to keep the use of coal as available to the state as they can," Barnes said.

Indiana Attorney General Greg Zoeller has another take on what the state is trying to do: Keep the EPA in line.

Zoeller said it's not his role to weigh the costs of complying with a federal regulation against the benefits to public health and the environment when deciding whether to challenge a rule.

"The governor and others have policy views," Zoeller said. "Ours is a legal question about administrative authority."

The EPA, Zoeller argues, has been overstepping its authority by issuing regulations that go beyond what it has been empowered by Congress to do through the Clean Air Act passed in 1970.

"In each case, it's not that we necessarily win or lose, but I think it's appropriate that we challenge because EPA has been fairly aggressive in pressing beyond what at least a lot of members of Congress thought they were passing," Zoeller said.

Posted by Marcia Oddi on August 25, 2014 10:49 AM
Posted to Environment

Ind. Decisions - Court of Appeals issues 1 today (and 5 NFP)

For publication opinions today (1):

In John Barnhart v. State of Indiana , a 15-page opinion, Judge Brown writes:

John Barnhart appeals his convictions and sentence for two counts of child molesting as class A felonies and one count of possession of marijuana as a class A misdemeanor. Barnhart raises two issues which we revise and restate as follows: I. Whether the trial court abused its discretion by excluding evidence that the victim submitted to a urine drug screen and that the results were negative; and II. Whether the trial court abused its discretion in sentencing him. We affirm.
NFP civil opinions today (4):

Amanda Kay (Albin) Brasseur v. Gregory Joseph Brasseur (NFP)

In the Matter of the Involuntary Commitment of G.M. v. Columbus Regional Hospital Mental Health Facility and Dr. Michael Stark (NFP)

Karla Hart v. Douglas Kaderabek, M.D. (NFP)

Holly Richardson v. Med-1 Solutions, LLC, as Agent for Deaconess Hospital (NFP)

NFP criminal opinions today (1):

Tiandre Harris v. State of Indiana (NFP)

Posted by Marcia Oddi on August 25, 2014 10:42 AM
Posted to Ind. App.Ct. Decisions

Ind. Gov't. - "In Indiana, state government tries using big data project to reduce infant mortality"

That is the headline to this story today by Mohana Ravindranath of the Washington Post. Some quotes:

Over the past year, Indiana’s governor, Republican Mike Pence, has spoken frequently about a persistent public health issue: a higher-than-average infant mortality rate. * * *

Pence’s staff suspected that the solution to Indiana’s infant mortality problem lay hidden in the state’s records, stored in disparate data sets throughout various government agencies. Analyzing these data sets — pairing causes of death from the Department of Health with socioeconomic data from the Family and Social Services Administration, for instance — could help the state determine which preventative programs to fund, they surmised.

In July, the Indiana state government signed a contract with European software company SAP to use its data management system HANA, which stands for High-Performance Analytic Appliance, to crunch data about infant mortality. This is the first major public-health big data application in Indiana, according to state officials, and if successful, the state plans to use the approach to solve other problems, such as recidivism. Indiana is investing about $9.1 million in the overall big data project. * * *

The state selected SAP — whose main customers are large commercial businesses — out of several other software vendors, according to Indiana’s chief financial officer and management and budget director Chris Atkins.

About a month into the project, the state government is still establishing links between the mortality rate of infants and other factors such as the parents’ level of education. Atkins declined to share the pilot’s findings until after they have been subjected to more tests.

“Maybe it’s education, [but] maybe it’s something else we need to look into,” Atkins said, adding that once the state identifies factors tied strongly to mortality, it plans to invest more heavily in programs addressing those factors.

If a low maternal education level is found to be a strong predictor of infant mortality in Indiana, the state may invest more heavily in education programs or in outreach for expectant mothers. Other factors, such as environmental pollutants or crime, could also be linked to mortality.

“The government gives us the ability to shift resources — whether they be personnel, or dollars — into programs or areas that demonstrate better results, and away from programs that don’t demonstrate results,” Atkins said.

Atkins declined to share how much the state was paying SAP. He noted that the majority of fees were paid upfront, with a small annual maintenance fee. The state also has had to hire a handful of ad hoc technology consultants to set up the effort.

“The state of Indiana didn’t have a lot of data scientists on the payroll before we started this project, but by and large we’ve been able to do it within existing [staff],” he said.

Posted by Marcia Oddi on August 25, 2014 09:14 AM
Posted to Indiana Government

Ind. Courts - Some stories about the 7th Circuit oral argument tomorrow on Indiana same sex marriage

From August 22nd, this story by Jill Disis of the Indianapolis Star, headed "8 things to know about Indiana's same-sex marriage appeals case." A sample:

8. Only three judges from the 7th Circuit Court of Appeals will hear the case — but which three are still unclear.

The three-judge panel hearing the Indiana and Wisconsin cases will likely be revealed Tuesday morning. The full appellate court features a mix of judges appointed by presidents Ronald Reagan, George H.W. Bush, Bill Clinton, George W. Bush and Barack Obama.

"Same-sex marriage case: Opposing sides weigh in," a story by Jill Disis and Tim Evans of the Indianapolis Star looking at some of the many amicus briefs filing in tomorrow's case. A sample:
The amici curiae, or "friends of the court" briefs, reflect the interests of a diverse group of impassioned spectators who are eager to share information the judges otherwise might not consider. Among those who filed briefs: individuals and corporations, theologians and scholars, Christians and atheists, as well as activists, psychologists and law enforcement.

The Indianapolis Star's review of case files shows at least 18 briefs side with the plaintiffs, who say the Indiana law should be struck down. Those petitions run 787 pages. On the other side, 14 briefs align with the state, arguing that Indiana's law is constitutional and should be upheld. Those petitions span 636 pages.

The story continues with quotes from a number of the amicus briefs.

Rick Callahan of the AP has a story headed "Health-Care Fears Loom Large in Gay Marriage Cases."

Posted by Marcia Oddi on August 25, 2014 08:56 AM
Posted to Ind Fed D.Ct. Decisions

Catch-up: What did you miss over the weekend from the ILB?

Actually, several stories were too important to hold until today. Don't miss reading them.

From Sunday, August 24, 2014:

Posted by Marcia Oddi on August 25, 2014 08:45 AM
Posted to Catch-up

Ind. Decisions - Upcoming oral arguments this week and next

This week's oral arguments before the Supreme Court (week of 8/25/14):

  • No oral arguments currently scheduled.

Next week's oral arguments before the Supreme Court (week of 9/1/14):

Thursday, Sept. 4

  • 9:00 AM - Gregory Zoeller, et al. v. James Sweeney, et al. (45S00-1309-PL-596) Sweeney and others (collectively "the Union") filed a complaint in the Lake Superior Court against the Attorney General and the Labor Department Commissioner (collectively "the State") seeking a declaratory judgment that Indiana's "right-to-work law” violated several provisions of the state constitution. The State moved to dismiss the complaint for failure to state a cause of action. The trial court ruled that two provisions, Indiana Code sections 22-6-6-8 and -10, violate Article 1, Section 21 of the Indiana Constitution because they demand particular services from unions without just compensation, and entered a declaratory judgment. The trial court granted the State's motion as to the remaining counts and dismissed them. The Supreme Court has jurisdiction over this direct appeal (civil) because the trial court declared a state statute unconstitutional. See Ind. Appellate Rule 4(A)(1)(b).

    ILB: This is the Right to Work Law challenge. This is the challenge to the J.Sedia opinion. For background and copies to the documents, see this Aug. 20th ILB post and its links, and this Aug. 24th ILB post.

  • 9:45 AM - Ruben Rosales v. State of Indiana (48S02-1404-CR-297) Rosales was convicted of attempted murder following a jury trial in the Madison Circuit Court. Without objection, the instruction on attempted murder referred to “specific intent,” but the instruction on accomplice liability did not. Rejecting the argument that the accomplice liability instruction constituted “fundamental error,” a divided Court of Appeals affirmed in Rosales v. State, 3 N.E.3d 1014 (Ind. Ct. App. 2014), vacated. The Supreme Court has granted a petition to transfer the case and has assumed jurisdiction over the appeal.

    ILB: This is a 2-1, Jan. 27, 2014 COA opinion where the majority and dissent wrote, respectively:

    As we have already noted, not every Spradlin claim amounts to fundamental error. The fundamental error exception is available only in “egregious circumstances.” Id. The record shows that Rosales was fairly tried and convicted. Affirmed.

    It is undisputed that the trial court erred in instructing the jury on accomplice liability, and it is also undisputed that the record is silent regarding whether the jury found Rosales guilty of attempted murder as an accomplice or as a principal. Relying on Thomas, the majority concludes that the error was not fundamental. I respectfully disagree.

  • 10:30 AM - Shawn Blount v. State of Indiana (49S02-1405-CR-338) Blount was charged with possession of a firearm by a serious violent felon. At the jury trial in the Marion Superior Court, a detective was allowed to testify that witnesses supplied him with the nickname of the person they believed fired the gun. The Court of Appeals reversed the conviction deciding that the “course-of-investigation” testimony was inadmissible hearsay. Blount v. State, 4 N.E.3d 787 (Ind. Ct. App. 2014), vacated. The Supreme Court has granted a petition to transfer the case and has assumed jurisdiction over the appeal.

    ILB: This was a 2-1 Feb. 24, 2014 opinion where the issue was whether the trial court abused its discretion by admitting hearsay evidence (when it allowed Detective Smith’s testimony concerning what Brock and her son told him as to their belief about who fired the gun). The COA ruled it was inadmissible hearsay.

Webcasts of Supreme Court oral arguments are available here.


This week's oral arguments before the Court of Appeals (week of 8/25/14):

Tuesday, August 26

  • 10:00 AM - Wesco v. Arcelormittal (45A03-1307-PL-274) Arcelormittal Indiana Harbor, LLC ("Mittal") operates a steelmaking plant in northwestern Indiana. On April 28, 2006, an overhead crane at the plant malfunctioned and spilled a load of molten iron that caused a fire that damaged Mittal's property. Mittal sued WESCO for breach of warranty, alleging that WESCO sold it defective parts that caused the malfunction. A jury returned a verdict for Mittal in an amount in excess of $36 million. The trial court awarded prejudgment interest and costs and entered a final judgment in the amount of $39,031,555.96. WESCO appeals the judgment, alleging the trial court committed reversible error by failing to grant WESCO summary judgment; entering a discovery order protecting materials pertinent to an insurance investigation; admitting certain expert testimony; excluding evidence regarding remedial measures by Mittal; submitting an allegedly erroneous instruction; failing to sanction Mittal for alleged spoiliation of evidence; and awarding prejudgment interest. The Scheduled Panel Members are: Judges Baker, Robb and Bradford. [Where:Court of Appeals Courtroom (WEBCAST)]

  • 1:30 PM - Getrag KG v. Walbridge Aldinger Company (80A02-1310-CC-860) Walbridge alleges that Getrag KG hired it to construct this plant, but, in late 2008, Getrag KG ordered Walbridge to stop construction and refused to pay Walbridge more than $35 million in expenses that Walbridge had incurred. Attached to Walbridge’s complaint were numerous purchase orders, each of which states that the parties shall abide by certain terms and conditions. Among these terms and conditions is a requirement that any disputes between the parties be resolved in Germany and pursuant to German law. As such, Getrag KG moved to dismiss Walbridge’s complaint. The trial court denied Getrag KG’s motion pursuant to Indiana Code Section 32-28-3-17, which declares “void” any “provision in a contract for the improvement of real estate in Indiana” that “makes the contract subject to the laws of another state” or “requires litigation . . . on the contract occur in another state.” On appeal, Getrag KG asserts that the terms and conditions are binding under Indiana law, that Indiana Code Section 32-28-3-17 does not apply on these facts, and that, if it did apply, the statute would be preempted by the Treaty of Friendship, Commerce and Navigation between the United States of America and the Federal Republic of Germany. The Scheduled Panel Members are: Chief Judge Vaidik, Judges Najam and Brown. [Where:Court of Appeals Courtroom (WEBCAST)]

Next week's oral arguments before the Court of Appeals (week of 9/1/14):

Thursday, Sept. 4

  • 11:00 AM - Allen v. Hinchman, et. al. (49A02-1311-PL-975) In this case, Christa Allen appeals the trial court's grant of summary judgment in favor of Richard Hinchman, M.D., Richard Tanner, M.D., and Jeffrey Smith, M.D. Allen maintains that the trial court incorrectly determined that medical professionals are held to a lower standard of care when treating incarcerated persons. Additionally, Allen argues that prisoners with Gender Identity Disorder are entitled to medical care to maintain ongoing treatment when such care is of slight or no expense to the Satate and creates no security deficit. The Scheduled Panel Members are: Judges Baker, Kirsch and Robb. [Where:Court of Appeals Courtroom (WEBCAST)]

ONLY those Court of Appeals oral arguments presented in the Supreme or Court of Appeals Courtrooms will be accessible via videocast. [Note: This may be changing...]

The past COA webcasts which have been webcast are accessible here.


NOTE: For a printable version of this list of upcoming oral arguments, click on the date in the next line. Then select "Print" from your browser.

Posted by Marcia Oddi on August 25, 2014 08:43 AM
Posted to Upcoming Oral Arguments

Sunday, August 24, 2014

Ind. Gov't. - "Ticketing students in South Bend schools: Poorer schools see majority of citations, some given to kids as young as 10"

Kim Kilbride reports today in the South Bend Tribune about citations issued to students by school resource officers. Some quotes from the long story:

SOUTH BEND — A South Bend police officer ticketed Brandon Worsham in his school last September, saying the teen engaged in fighting and disorderly conduct. * * *

But neither Brandon nor his mom recall receiving or even being notified of the ticket, written by a resource officer who is assigned to the school.

The citation carries fines and court costs of about $140, plus the potential to remain on Brandon’s record indefinitely if he ignores it.

A check of a state database turns up Brandon’s citation, though his first name is misspelled. It says he failed to appear for his court date. And a request to the Indiana Bureau of Motor Vehicles to suspend his driving privileges was submitted by the court.

His mom still questions why a citation was issued in the first place, why no one followed up and why she was never notified -- of both the ticket and the move to suspend her son’s driving privileges.

“That’s crazy,” she said.

Brandon’s ticket was one of 278 issued in South Bend schools from August 2010 through June 2014, in a longstanding practice by resource officers.

The tickets, given primarily for fighting or the threat of fighting, are not criminal citations, though they carry fines and other consequences, similar to traffic citations.

A Tribune review of all of the tickets issued during the past four school years found errors and inconsistencies:

The story then details issues with many of the tickets it examines. The Tribune also has created a database of tickets. There is much more in the lengthy sotry, including:
South Bend police Lt. Eric Crittendon, who is the safety and security coordinator for South Bend schools, said the practice of issuing tickets has been an effective one since the 1990s, when the school resource officer program began.

Crittendon said he researched the issuance of tickets in other school districts in the state and consulted with the local prosecutor and other officials at the time.

They all agreed that the state code for provocation is a “ticketable offense” in schools, he said.

“The majority of fighting — then and now — is ‘we’re going to meet and fight,’ “ Crittendon said. “Kids don’t turn and walk away. We’ve got this jaw-jacking back and forth and next thing you know, it leads to a punch.”

Critics, however, question whether tickets are the best way to control student behavior, especially in the light of the flaws uncovered by The Tribune.

Oletha Jones, the education chair with the local branch of the NAACP, is especially troubled by tickets being issued to students in intermediate centers.

“These are 10-year-olds receiving a ticket, just as if they are an adult,” she said. “These are children.”

She also pointed out that the fines and court costs often put pressure on low-income families “when they have to choose between paying a bill, buying food,” she said, “or paying for a $125 citation their child received.”

[Updated on Aug. 25] See this post this morning, "SRO’s and Provocation Infraction Tickets," in the Indiana Juvenile Justice Blog.

Posted by Marcia Oddi on August 24, 2014 01:28 PM
Posted to Indiana Government