Friday, April 17, 2015

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

For publication opinions today (1):

In Angelique Lockett and Lanetra Lockett v. Planned Parenthood of Indiana, Inc., and Cathy McGee, a 20-page opinion, Judge Bailey writes:

Angelique Lockett (“Angelique”) and her mother Lanetra Lockett (“Lanetra”) (collectively, “the Locketts”) appeal the trial court’s grant of summary judgment in favor of Planned Parenthood of Indiana, Inc. (“Planned Parenthood”) after Angelique, then a minor, intentionally misrepresented herself to be eighteen-years-old and obtained an abortion at a Planned Parenthood clinic without Lanetra’s consent. We affirm the trial court’s grant of Planned Parenthood’s motion for summary judgment because the Locketts failed to present their claims first to a medical review panel, as required by the Medical Malpractice Act (“the MMA”), and thus the trial court lacked subject matter jurisdiction over the claims. However, to the extent that the trial court’s order appears to have dismissed the Locketts’ claims against defendant Cathy McGee (“McGee”), we reverse and remand with instructions to correct the order.
NFP civil decisions today (2):

In Re: The Guardianship of Sharon Izzo (mem. dec.)

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

NFP criminal decisions today (6):

Andrew C. Stevens v. State of Indiana (mem. dec.)

James D. Benge v. State of Indiana (mem. dec.)

Chad McKinney v. State of Indiana (mem. dec.)

Kenneth Ray Barnett, Jr. v. State of Indiana (mem. dec.)

Kenneth E. Aker, Jr. v. State of Indiana (mem. dec.)

Randolf S. Sargent v. State of Indiana (mem. dec.)

Posted by Marcia Oddi on April 17, 2015 12:38 PM
Posted to Ind. App.Ct. Decisions

Ind. Courts - Where are we with SB 523, Marion County Small Claims Courts?

Here is the most recent, April 15th version, as the bill passed the House. But the Senate has dissented and the bill will likely go to conference committee for more changes. The bill has been changed at every step of the process, many of the changes at the behest of the author, Sen. Michael Young, whose objective is not always discernible.

The Supreme Court has been asking for changes in the Marion County small claims court system since 2012. As the ILB wrote earlier this year:

These courts have been at issue since the front-page WSJ story on July 18, 2011, on the Pike Twp. small claims court being a mecca for debt collection: "Although the state requires suits to be filed in the county where the borrower lives, in Marion County and one other county, collectors can choose among township courts—each with a single judge. The courts handle all collection disputes involving up to $6,000." The Supreme Court in Feb. 2012 created a special task force to look into the issue. Star reporter Carrie Ritchie tweeted on Feb. 20, 2012: "The small claims court story really hit a nerve with readers. I've never gotten this many phone calls on one story."

The 33-page Task Force report was submitted May 1, 2012. Here is an update from May 31, 2013, another from July 16, 2013. On Aug. 4, 2013, the Star had a long story headed "Small claims, bigger problems: Unique rules in Marion County raise questions of fairness."

On Jan. 19, 2014, the ILB asked: "a look at the CJ's legislative requests in the State of the Judiciary (are they DOA?)" The request:

Fixing the Marion County Township Small Claims Courts. Our present system has been the subject of ridicule by the Wall Street Journal, and local newspaper and television reporters launched investigations into the system. A task force co-chaired by Court of Appeals Judge John Baker and Senior Judge Betty Barteau held hearings and made a comprehensive report recommending changes urgently needed. Local leadership and changes in court rules, however, can only scratch the surface. Systemic change is imperative, and this requires legislative action.
On July 2, 2014, the ILB reported on the 7th Circuit opinion Suesz v. Med-1 Solutions, holding that Marion County small claims courts are judicial districts for the purposes of the FDCPA. The federal Fair Debt Collection Practices Act requires a collector of consumer debts to file its debt-collection suit in the “judicial district or similar legal entity” where the contract was signed or where the debtor resides.)

On July 14, 2014 the ILB posted ""Judges call for an end to Marion County’s small claims court system" and this follow-up. Later that same day, the ILB did a Q&A with "an individual who is very well-attuned to Marion County politics." The question:

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?
On Sept. 2, 2014, the ILB reported that the: "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."
Here are some quotes from the Supreme Court's Sept. 2, 2014 announcement about the July 2014 Final Report prepared by the National Center for State Courts on the Marion County small claims court:
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.

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.

Curently SB 523 takes a different direction. Rather than incorporating the township courts into a Small Claims Division of the Marion County Superior Court, the current version of the bill would, according to the current digest:
  • Make the nine township small claims courts in Marion County courts of record after July 1, 2018.
  • Make the nine township small claims courts: (1) full time courts before 2018, unless the township board objects; and (2) full time courts after 2018 by operation of law.
  • Set the annual salary of a full time small claims court judge at 80% of the salary of a Marion County circuit or superior court judge.
  • Increases jurisdictional amount to $8,000 on July 1, 2018.
  • Allow the courts to use the Odyssey case management system.
  • Define "low caseload court" and require certain fees to be transferred to low caseload courts.
To better under the bill, the reader is directed to this LSA Fiscal Impact Statement, based on the April 14th printing.

Posted by Marcia Oddi on April 17, 2015 09:56 AM
Posted to Indiana Courts

Thursday, April 16, 2015

Ind. Gov't. - "State lawmakers are close to retroactively terminating a 15-year-old lawsuit filed by the city of Gary against several gun manufacturers and retailers."

That was the lede to Dan Carden's story yesterday in the NWI Times. From the story:

State lawmakers are close to retroactively terminating a 15-year-old lawsuit filed by the city of Gary against several gun manufacturers and retailers.

The Republican-controlled House voted 72-23 on Tuesday for Senate Bill 98, which essentially goes back in time to prohibit Gary from seeking damages from the gun companies for their alleged complicity in the illegal retail sale of handguns.

State Rep. Ben Smaltz, R-Auburn, the sponsor, said the lawsuit -- which has idled in the courts for the past six years -- is deterring gun makers from locating in Indiana because they believe the state is unfriendly to gun businesses, even though state law since 2001 has barred civil lawsuits against them.

"Having a viable firearms and ammunition industry is a compelling state interest, as is having a firearms industry that can provide law enforcement and the military with the equipment they need to keep the peace," Smaltz said.

Opponents of the measure said it is plainly unconstitutional and grossly interferes with the required separation of powers by having the Legislature and governor insert themselves in a pending court case.

"This bill is an abomination," said state Rep. Ed Delaney, D-Indianapolis. "It's an insult to the legal system; it's an insult to the people of Gary and it will be one of the two or three most overreaching and wrong acts of this General Assembly."

The measure was revised Monday by the House to prohibit the gun companies from seeking reimbursement of their attorney fees from Gary.

As a result, it must again pass the Republican-controlled Senate or be sent to a House-Senate conference committee to devise a compromise version, subject to re-approval by both chambers.

ILB: Here are a number of earlier ILB posts on the Gary gun lawsuit and the bill to kill it.

[More] Here is Carole Carlson's Gary Post-Tribune story. It begins:

Gary Mayor Karen Freeman-Wilson lashed out at the General Assembly for approving a bill to kill a long-standing Gary lawsuit against gun manufacturers and dealers.

The measure passed the House Wednesday by a 72-23 vote. Because an amendment was added, it moves back to the Senate for consideration.

"Manufacturers and dealers have essentially turned a blind eye to straw purchases and other illegal acts that ultimately result in gun violence, many times leading to death in the streets," said Freeman-Wilson. "Yesterday, the Indiana General Assembly gave them a license to continue their reckless behavior."

Freeman-Wilson called on Gov. Mike Pence to reject the bill.

"Over a year ago, he challenged us to make changes to our crime fighting efforts. This is a part of our new strategy," Freeman-Wilson said in a statement released Wednesday.

Written by a downstate lawmaker, the bill prohibits lawsuits against gun manufacturers and dealers, making it retroactive to 1999 when former mayor Scott King filed Gary's lawsuit.

Posted by Marcia Oddi on April 16, 2015 02:04 PM
Posted to Indiana Government

Ind. Gov't. - "Hoosiers to decide whether 'right to hunt' belongs in Constitution"

The headline pretty much says it all; SJR 2 has now been passed by two General Assemblys and will go on the statewide ballot at the November general election. Here is Dan Carden's story in the NWI Times. It includes the language of the proposed constitutional amendment.

Posted by Marcia Oddi on April 16, 2015 02:00 PM
Posted to Indiana Government

Ind. Gov't. - Is Purdue's long Wartell and Trimble Report legal nightmare finally over?

Rebecca S. Green reported yesterday in the Fort Wayne Journal Gazette:

Former IPFW Chancellor Michael Wartell was paid $52,500 by his former employer when he settled an age discrimination lawsuit with Purdue University in February.

The information about that term of the settlement agreement in the federal lawsuit was released to The Journal Gazette on Monday in response to a Freedom of Information Act request.

It was not disclosed in court documents. * * *

The school has spent more than $160,000 in legal fees to keep the [Trimble] report a secret, according to Purdue officials.

In September, a federal judge ordered the report released.

The lawsuit was settled in February and the report was released a few weeks later.

Trimble’s report said that while university officials had not discriminated against Wartell, they had botched the whole situation so badly that it opened the door for all the litigation and fighting that followed.

Defending itself against the federal lawsuit cost Purdue an additional $168,312, according to university officials.

An earlier story (April 13) by Joseph Paul in the Lafayette Journal & Courier reported:
Purdue University spent more than $320,000 in legal fees battling state and federal lawsuits filed by former IPFW Chancellor Michael Wartell.

In both cases, Wartell alleged he had been discriminated against after the Purdue Board of Trustees declined to extend his contract past retirement age.

The then 65-year-old was ousted from Indiana University Purdue University-Fort Wayne in 2011 and replaced with 64-year-old Vicky Carwein.

Records released to the Journal & Courier Monday indicate Purdue spent $161,812, beginning in July 2012, in a state open records lawsuit and $168,312, beginning in April 2013, for defense in a federal lawsuit.

Much of those fees were spent battling court orders to release the Trimble Report — an independent investigation by attorney John Trimble that found Purdue and the Board of Trustees could have handled the forced retirement better.

Purdue, however, opposed the release of the document, claiming it was protected under attorney-client privilege, until the terms of a recent settlement unsealed the report.

ILB: So if you add all the figures together ($320,000 plus $52,500), the total is $372,500.

Here is a long list of earlier ILB posts on this topic.

Posted by Marcia Oddi on April 16, 2015 01:47 PM
Posted to Indiana Government

Ind. Decisions - Supreme Court issues rare conditional reinstatement

As the ILB has noted in the past, a "suspension without automatic reinstatement" means an Indiana attorney so suspended faces difficult barriers in regaining the ability to practice. See this Feb. 14, 2014 ILB post headed "How bad is "suspension without automatic reinstatement" by the Supreme Court; can it be the kiss of death for an attorney?"

On April 13th the Court issued this order granting conditional reinstatement to the practice of law to Douglas S. Followell.

All Justices concurred except Dickson, J., who voted to deny reinstatement.

Posted by Marcia Oddi on April 16, 2015 01:33 PM
Posted to Ind. Sup.Ct. Decisions

Ind. Decisions - Court of Appeals issues 2 opinion(s) today (and 4 NFP memorandum decisions)

For publication opinions today (2):

In James Satterfield v. State of Indiana, a 16-page opinion, Judge Riley writes:

Appellant-Defendant, James Satterfield (Satterfield), appeals the trial court’s denial of his motion to let bail following his arrest and charge for murder. We reverse and remand for further proceedings.

Satterfield raises one issue on appeal, which we restate as follows: Whether the State established that the proof of Satterfield’s guilt for murder is evident or the presumption of that guilt strong despite his claim of self-defense.

The State raises one issue on cross-appeal, which we restate as follows: Whether Satterfield filed a timely notice of appeal. * * *

In its cross-appeal, the State maintains that Satterfield forfeited his right to appeal the trial court’s denial of his bail by failing to file a notice of appeal within the requisite thirty days of the trial court’s order. Because the trial court’s order constituted a final appealable judgment and the motion to reconsider did not toll the running of time, the State maintains that the notice of appeal was due eight days prior to Satterfield’s filing of his notice of appeal. * * *

Ultimately, though, the criminal jurisprudence of Indiana and any corresponding discussion of bail is founded on a presumption of individual innocence. See Bozovichar, 103 N.E.2d at 681; see U.S. v. Salerno, 481 U.S. 739, 755 (1987) (“[L]iberty is the norm, and detention prior to trial or without trial is the carefully limited exception.”). It is the unique confluence of this fundamental liberty interest along with one of the most valued rights in our culture—the right to bail—that we conclude that Satterfield’s otherwise forfeited appeal deserves a determination on its merits. * * *

Accordingly, after the Fry decision re-evaluated the bailment landscape, we pay homage to the ancient principle of stare decisis and reaffirm a defendant’s right to present exculpatory evidence as to his or her culpability during a bail proceeding and the trial court’s duty to take this evidence into account when considering a request for bail. * * *

However, after being presented with Satterfield’s evidence, the trial court refused to weigh any evidentiary facts alluding to a possible self-defense and, thus, abused its discretion. Accordingly, we reverse the trial court’s denial of Satterfield’s bail and remand to the trial court with instructions to conduct a new bail hearing in accordance with our opinion today.

Based on the foregoing, we hold that even though Satterfield forfeited his right to appeal due to his failure to timely file a notice of appeal, extraordinarily compelling reasons warrant a review of Satterfield’s argument on the merits. Upon review of the evidence, we reverse the trial court’s denial of bail and remand for a new bail hearing with instructions to weigh Satterfield’s evidence of self-defense. Reversed and remanded.

Najam, J. concurs
Bradford, J. concurs in result

In Jeffery J. Hunt v. State of Indiana, an 8-page opinion, Judge Mathias concludes:
After surveying sentences imposed in similar cases, we conclude that Hunt’s 120-year sentence is an “outlier” that is in need of revision. To be clear, we need not ensure that all sentences for similar acts and defendants are precisely the same.

We further note that the maximum aggregate sentence Hunt could have received had he actually killed Mr. Neer is 113 years. * * * As heinous as Hunt's crime was, it would be disproportionate5 to impose a sentence for his crime resulting in serious bodily injury to the victim that is greater than the sentence that would be imposed upon Hunt for killing the victim. * * *

For all of these reasons, we conclude that Hunt’s sentence is inappropriate in light of the nature of the offense and the character of the offender and direct that it be revised to an aggregate term of 100 years. Reversed and remanded for proceedings consistent with this opinion.

NFP civil decisions today (2):

In the Matter of the Termination of the Parent-Child Relationship of L.P., Mother, and L.H., Child, L.P. v. Ind. Dept. of Child Services (mem. dec.)

Harry J. Evans, et al. v. Tommy L. Short (mem. dec.)

NFP criminal decisions today (2):

Clinton Davis v. State of Indiana (mem. dec.)

Eric P. Johnson v. State of Indiana (mem. dec.)

Posted by Marcia Oddi on April 16, 2015 12:53 PM
Posted to Ind. App.Ct. Decisions

Ind. Decisions - 7th Circuit decided two Indiana cases yesterday

In USA v. Maria Ramirez (SD Ind., Pratt), a 15-page opinion, Judge Sykes writes:

Maria Ramirez was a courier and bookkeeper in an Indianapolis-based methamphetamine distribution ring. Police arrested her minutes after she left a stash house carrying about five pounds of meth worth more than $100,000. A search of the house yielded two handguns, and two additional firearms were later found in other houses used by her coconspirators. Ramirez pleaded guilty to conspiracy to distribute 50 or more grams of meth in violation of 21 U.S.C. §§ 841(a)(1) and 846, but at sentencing she claimed to have been unaware that her coconspirators possessed guns. Over her objection the district court found that the coconspirators’ firearm possession was reasonably foreseeable to her and increased the offense level under the Sentencing Guidelines by two levels for possession of a dangerous weapon. See U.S.S.G. § 2D1.1(b)(1).

Ramirez raises two arguments on appeal. First, she contends that the § 2D1.1(b)(1) enhancement was wrongly applied because she could not have reasonably foreseen that her coconspirators possessed guns. Second, she argues—for the first time on appeal—that she was eligible for a two-level reduction in her offense level under the so-called “safety valve” for nonviolent first-time drug offenders. Id. §§ 2D1.1(b)(16), 5C1.2(a).

We reject these arguments and affirm. Proper application of the firearm enhancement requires the sentencing court to make an individualized determination that the defendant should have foreseen her coconspirators’ gun possession. At the same time, however, the judge is permitted to draw common-sense inferences when determining whether someone in the defendant’s position reasonably should have foreseen that guns were in use in the conspiracy. Here, Ramirez had substantial and important roles in a sizable drug enterprise. Under these circumstances, it was not clear error to attribute the coconspirators’ gun possession to her for purposes of the § 2D1.1(b)(1) enhancement.

Possession of a firearm in connection with the offense generally disqualifies the defendant from receiving safetyvalve consideration. Id. § 5C1.2(a)(2). Ramirez insists, however, that even if her coconspirators’ gun possession was properly attributed to her for purposes of the § 2D1.1(b)(1) enhancement, the “no firearms” condition for safety-valve eligibility is narrower. More specifically, she argues that she was eligible for the safety valve because she neither possessed a gun herself nor induced another to do so. See id. § 5C1.2 cmt. n.4; cf. id. § 1B1.3(a)(1)(B).

The scope of the safety valve’s “no firearms” prerequisite— more specifically, whether that condition includes liability for a coconspirator’s gun possession—is a question of first impression in this circuit. Because Ramirez failed to raise this argument in the district court, our review is for plain error only, and we find none. * * *

As we’ve noted, this is a question of first impression in our circuit. See Harris, 230 F.3d at 1058 (noting but not deciding the question whether coconspirator liability is a basis for determining possession of a firearm under § 5C1.2). If Ramirez had raised the issue at sentencing, then this would be an occasion for us to decide whether application of the firearms enhancement categorically forecloses eligibility for the safety valve. But her failure to make that argument before the district court limits us to review for plain error.

We rarely find plain error on a matter of first impression. In order to prevail, the defendant must show that “the error was so obvious and so prejudicial that a district judge should have intervened without being prompted by an objection from defense counsel.” United States v. Boswell, 772 F.3d 469, 476–77 (7th Cir. 2014) (internal quotation marks omitted). Matters of first impression are unlikely to be that obvious. See United States v. Turrietta, 696 F.3d 972, 981 (10th Cir. 2012) (“Since a district court cannot be faulted for failing to act on its own motion where the law is unsettled, a matter of first impression will generally preclude a finding of plain error.”). And Ramirez’s eligibility for the safety valve was not so obvious in this case.

It’s true that the scope of the “no firearms” condition in § 5C1.2(a)(2) was flagged as an open question in our decision in Harris. 230 F.3d at 1058 (“Whether co-conspirator liability is a basis for determining possession of a firearm under § 5C1.2 is an issue that we have never addressed … . [W]e cannot reach its merits [here].”); see also id. at 1061 (Ripple, J., dissenting). But the issue remains unsettled in this circuit. Given the lack of guiding circuit precedent, the district court cannot be faulted for failing to raise and apply the safety valve sua sponte. Accordingly, we find no plain error.

In Joseph E. Corcoran v. Ron Neal (ND Ind., DeGuilio), a 23-page opinion, Judge Sykes writes:
In 1997 Joseph Corcoran shot and killed four men at his home in Fort Wayne, Indiana. A jury convicted him of four counts of murder and recommended the death penalty. The trial judge agreed and imposed a death sentence in accordance with the jury’s recommendation.

After his appeals in state court had run their course, Corcoran sought federal habeas relief on multiple grounds. We resolved some of his claims in earlier opinions and Corcoran has abandoned others; only two issues remain. Corcoran argues that the trial judge impermissibly relied on nonstatutory aggravating factors and failed to consider mitigating evidence when deciding whether to impose the death penalty. In a thorough opinion, the district court rejected these claims and denied the writ.

We affirm. First, the Indiana Supreme Court held that the trial judge did not in fact rely on nonstatutory aggravating factors. We previously disagreed with that determination, but our earlier decision—now vacated—did not adequately grapple with the deference owed to state-court factual findings under the Antiterrorism and Effective Death Penalty Act (“AEDPA”), 28 U.S.C. § 2254(d)(2). Giving the matter a fresh look through the lens of AEDPA’s deferential standard of review, we now conclude that the state supreme court’s factual determination was not unreasonable.

Second, the Indiana Supreme Court reasonably determined that the trial judge considered all proffered evidence in mitigation. The sentencer’s obligation to consider mitigating evidence in a capital case does not require that the evidence be credited or given any particular weight in the final sentencing decision.

Posted by Marcia Oddi on April 16, 2015 09:27 AM
Posted to Ind. (7th Cir.) Decisions

Wednesday, April 15, 2015

Ind. Courts - In response to petition for SCOTUS to reverse Indiana COA decision, the State cites many NFPs as support [Updated]

The Court of Appeals decided Juan Manzano v. State of Indiana on July 15, 2014. Our Supreme Court denied transfer on Oct. 2, 2014.

On April 10, 2015, SCOTUSblog named the petition for cert now pending its "Petition of the Day," writing:

Manzano v. Indiana (14-631)

Issue: Whether, when a criminal defendant seeks to vacate a guilty plea on the ground that defense counsel rendered ineffective assistance, in order to establish prejudice the defendant must show that but for counsel’s errors he would not have pleaded guilty and would have insisted on going to trial (as this Court, all twelve federal circuits, and virtually all the states hold), or whether the defendant must also show that had he gone to trial he would have been acquitted (as the Indiana Supreme Court persists in holding).

You can access the petition for certiorari and the State of Indiana's response on the SCOTUSblog case page.

That is all very interesting by itself. But in addition, there is another angle. A reader has sent a note:

Apropos of your post about Chief Judge Vaidik and NFP's, have a look at the Indiana Solicitor General's brief in opposition to cert. in Manzano v. Indiana, Docket No. 14-631. Specifically, have a look at pages 8-9. I count citations to 9 NFPs. Not to be cited before any court, eh?
So the ILB looked and sure enough, on pp. 8-9 of the brief (22-23 in PDF numbering) many unpublished (NFP) Indiana Court of Appeals opinions are cited to the SCOTUS in support of the Court of Appeal's decision in Manzano.

[Updated at 2:27 PM] The ILB has received this note from an Indianapolis attorney:

Just a quite note regarding this post on the ILB, noting that the SG was citing NFP opinions in its SCOTUS brief. On review, it appears the SG is simply responding to arguments made in the Petitioner's brief, where the Petitioner appears to cite all of those cases listed on pages 8 and 9 of the SG's brief.

The SG even refers to them as "plea-consequences cases that Manzano cites." Obviously, I think it must be fair for the SG to respond to arguments made by a Petitioner in his cert. petition, and not something that should garner criticism.

Posted by Marcia Oddi on April 15, 2015 12:04 PM
Posted to Indiana Courts

Ind. Courts - Lawsuit filed for certain House Republican caucus emails

From the press release:

Citizens Action Coalition (CAC), Common Cause Indiana, and the Energy and Policy Institute (EPI) filed a lawsuit today in Marion County Circuit/Superior Court against the Indiana House Republican Caucus and State Rep. Eric Koch (R, Bedford) for violating the Indiana Access to Public Records Act (APRA). The groups are asking the Court to declare that Rep. Koch and the Caucus are subject to APRA, which the GOP legislators have denied, and to order disclosure of correspondence between Rep. Koch and utility companies regarding solar energy issues.
ILB readers will recall a number of earlier posts on the question: "Is the General Assembly subject to the public records law?"
  • April 3, 2015 - Ind. Gov't. - A second PAC ruling on "Is the General Assembly subject to the public records law?" As the ILB exclusively reported March 23rd, the Energy and Policy Institute and the Citizens Action Coalition, on March 23rd, submitted to the PAC a new, refined public access complaint against Rep. Koch and the House Republican Caucus. This...

  • March 23, 2015 - Ind. Gov't. - Even more on: Is the General Assembly subject to the public records law? This March 18th ILB post exclusively reported that the Chief Counsel to the House Republican Caucus had on March 16th denied the second, more specific request filed by the Energy and Policy Institute, a request refined, per the earlier...

  • March 18, 2015 - Ind. Gov't. - Still more on: Is the General Assembly subject to the public records law? Updating this ILB post from March 6th, and this supplement from the same day, the ILB has now received some additional information. Recall that the initial ILB post ended with:The opinion concludes that in this specific case, much of what...

  • March 6, 2015 - Ind. Gov't. - More on: Is the General Assembly subject to the public records law? Supplementing my post below on the PAC opinion on applicability of the public records law to the General Assembly, here is earlier ILB post of interest, from July 26, 2013. It looked at whether emails of the General Assembly were...

  • March 6, 2015 - Ind. Gov't. - Is the General Assembly subject to the public records law? In an opinion issued today, Luke Britt, the Public Access Counselor, leaves no doubt that this is the case. The opinion is J5-FC-69: Alleged Violation a/the Access to Public Records Act by Indiana House Representative Eric Koch and the...
Here is a link to a copy of the complaint.

Posted by Marcia Oddi on April 15, 2015 11:34 AM
Posted to Indiana Courts

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Posted by Marcia Oddi on April 15, 2015 11:26 AM
Posted to About the Indiana Law Blog

Ind. Decisions - Court of Appeals issues 5 opinion(s) today (and 2 NFP memorandum decisions)

For publication opinions today (5):

In In the matter of: L.E., et al; G.E. v. Indiana Department of Child Services , a 9-page opinion, Judge Pyle writes:

G.E. appeals the juvenile court’s denial of her petition to expunge a substantiated report of child neglect regarding her children. She claims that she presented clear and convincing evidence that she was unlikely to be a future perpetrator of neglect and that there was no reason to justify the retention of the record by the Department of Child Services (“DCS”), thus satisfying the requirements of INDIANA CODE § 31-33-27-5. Concluding that G.E. did not carry her burden of presenting clear and convincing evidence satisfying the statutory requirements, we affirm the juvenile court’s denial of G.E.’s expungement petition. We affirm.
In Norman Wagler, Nathan Wagler, and Janet Wagler v. West Boggs Sewer District, Inc., an 8-page opinion, Judge Crone writes:
The Waglers unsuccessfully litigated their appeals all the way to the U.S. Supreme Court, which denied certiorari in 2014.

The trial court issued two contempt orders against Norman and two contempt orders against Nathan and Janet based on their failure to comply with the judgments requiring them to connect to the sewer system. * * *

[On appeal] they claim that a 2012 amendment to Indiana Code Section 8-1-2-125 exempts them from having to connect to the sewer system. We conclude that this is an impermissible collateral attack on the underlying judgments and therefore summarily affirm the contempt orders. West Boggs contends that it is entitled to recover appellate attorneys’ fees from the Waglers pursuant to Indiana Appellate Rule 66(E) because of the frivolousness and vexatiousness of their appeal. We agree and therefore remand for a calculation of appellate attorneys’ fees to which West Boggs is entitled.

In Mike Winters v. City of Evansville, a 12-page opinion, Judge Crone writes:
On appeal, Winters contends that the Merit Commission’s decision is not supported by substantial evidence and is arbitrary and capricious, which is another way of saying that the decision is patently unreasonable. Winters raises three issues: (1) the chief’s motivation for seeking termination was improper; (2) the two commissioners who voted in favor of termination based their decision on improper considerations; and (3) the punishment is disproportionate to the conduct. We resolve these issues as follows: (1) because the chief did not participate in the Merit Commission’s decision to terminate Winters, his motivation for seeking termination is irrelevant; (2) the commissioners did not base their decision on improper considerations; and (3) the Merit Commission’s decision to terminate Winters for his unjustified and unprovoked grabbing of the student’s crotch is supported by substantial evidence and is not arbitrary and capricious, or patently unreasonable. Therefore, we affirm.
In A.A. v. State of Indiana, a 12-page opinion (which may have been intended to be NFP, judging from the footers), Judge Crone writes:
A.A., a juvenile, appeals a true finding that he committed dangerous possession of a firearm, a class A misdemeanor if committed by an adult. He challenges the trial court’s decision to admit the firearm during the factfinding hearing, claiming that it was the product of an unconstitutional patdown during an investigatory traffic stop. Finding that the patdown was lawful under both the United States and Indiana Constitutions, we conclude that the trial court acted within its discretion in admitting the firearm. As such, we affirm the true finding.
In Brent Cole v. State of Indiana, a 22-page opinion, Judge Pyle writes:
On appeal, Cole argues that the trial court committed fundamental error by admonishing or instructing the jury during the trial and that the State failed to present sufficient evidence to rebut his claim that he committed his offenses in self-defense. We find that: (1) Cole has waived any claim of error in regard to the admonition; (2) he invited any alleged error by specifically agreeing to the content of the trial court’s admonition; and (3) the State presented sufficient evidence that Cole was the initial aggressor and then re-engaged with the victim. As a result, we affirm his convictions.
NFP civil decisions today (1):

Reinforcing Services Company, LLC, Steven Estes, and Wesco Wind, LLC v. Whaley Steel Corp. and James Whaley (mem. dec.)

NFP criminal decisions today (1):

J.V. v. State of Indiana (mem. dec.)

Posted by Marcia Oddi on April 15, 2015 10:14 AM
Posted to Ind. App.Ct. Decisions

Ind. Gov't. - "Legislature rejects civil rights protections for gays"

Yesterday both an amendment to the civil rights law and a proposal for a summer study committee re LBGT Hoosiers were rejected in the General Assembly. Dan Carden reports in the NWI Times:

Indiana ain't ready for reform -- at least when it comes to designating lesbian, gay, bisexual and transgender Hoosiers a protected class under the state's civil rights laws.

The Republican-controlled House and Senate each rejected separate Democratic measures Tuesday aimed at showing the world that discrimination against gays is not permitted in Indiana, whether religiously motivated or not.

In the House, state Rep. Ed Delaney, D-Indianapolis, proposed inserting language in Senate Bill 465 prohibiting discrimination based on sexual orientation and gender identity on the same basis as existing protections for race, religion, color, sex, national origin and age. * * *

In the Senate, Democratic Leader Tim Lanane, D-Anderson, suggested changing House Bill 1001 to require a legislative study committee review the civil rights protections for lesbian, gay, bisexual and transgender individuals in Indiana and other states.

Posted by Marcia Oddi on April 15, 2015 10:01 AM
Posted to Indiana Government

Ind. Gov't. - Budget bill includes tax break for for-profit hospitals

John Scheibel reports in a long story the NWI Times that begins:

A small section of a larger piece of legislation, which would cut in half a portion of property taxes for some hospitals, has some Porter County officials concerned about its impact.

The massive state budget bill, which appropriates money for capital expenditures, the operation of state agencies and other spending measures, includes a provision requiring a 50 percent tax cut on the property taxes applied to real and person property of for-profit hospitals. That would include taxes on the building and equipment inside.

Porter Regional Hospital would be among those hospitals to receive the tax break.

The exact impact of the legislation, if passed, is difficult to calculate, local officials said.

Porter County Auditor Vicki Urbanik said the loss of revenue the first year could be in the hundreds of thousands of dollars.

The state imposed tax reduction would come on top of a property tax abatement already granted by the Porter County Council. * * *

In Indianapolis on Tuesday, State Sen. Karen Tallian, D-Ogden Dunes, proposed deleting the property tax cut for for-profit hospitals.

"Unfortunately, I think this was done without any regard for the effect that it might have on local governments, and for any tax breaks that locals may have already given to them," Tallian said.

But State Sen. Luke Kenley, R-Noblesville, chairman of the Senate Appropriations Committee, urged a "no" vote on Tallian's request and said he would work with Tallian on the issue through the conference committee process over the next two weeks.

Kenley said the measure was inserted into legislation to allow for-profit hospitals to more easily compete with non-profit hospitals, which do not pay property taxes.

Niki Kelly reports in the Fort Wayne Journal Gazette:
Five area hospitals – including three in Allen County – could save millions in property taxes thanks to a small provision in the 200-page state budget bill.

The 14 lines inserted would generally give all for-profit hospitals in the state a 50 percent property tax exemption on taxes payable starting in 2017.

Statewide, the change might reduce hospital property tax bills by $4â ¯million, according to a fiscal impact statement on the budget. Some of the taxes will be shifted to other taxpayers, and some dollars will be lost to local units of government.

“It will have a huge impact,” said Allen County Auditor Tera Klutz. “I’m not surprised by the language. It’s tough because we have exempt hospitals and non-exempt. It’s something the legislature needs to look at.

“From a personal standpoint, I understand. Who doesn’t want to cut their tax bill in half? But there were no hearings or discussions on this.”

The language affects 11 hospitals in the state, according to the Association of Indiana Counties and the Indiana Hospital Association.

Locally, they include all the hospitals owned by Lutheran Health Network – Lutheran, St. Joseph, Dupont, Kosciusko Community and Bluffton Memorial.

Read the story for more details and rationale.

Posted by Marcia Oddi on April 15, 2015 09:40 AM
Posted to Indiana Government

Ind. Gov't. - Dead: "The notoriously divisive bill to legalize and regulate high-fenced deer hunting"

Niki Kelly reports today in the Fort Wayne Journal Gazette:

The notoriously divisive bill to legalize and regulate high-fenced deer hunting failed by a vote of 23-27 in the Senate on Tuesday – officially killing any movement on the topic for this legislative session.

House Bill 1453 would have authorized only the existing four captive hunting preserves to operate in Harrison, Marshall, Kosciusko and Blackford counties. [ILB: although these could have been moved to other locations]

But the distaste of breeding deer for large racks and charging hunters high prices to shoot them behind a fence proved too strong.

“It’s very simple. This is not hunting,” said Sen. Pete Miller, R-Avon. “That is a slaughter, folks.”

Senate President Pro Tem David Long said the bill was “decisively defeated” and cannot be put into other legislation in any form this year.

“It’s dead,” he said.

Advocates argued that without the bill, the preserves can operate in any way they please because the Indiana Court of Appeals ruled this year that the Department of Natural Resources doesn’t have authority to regulate privately owned deer, though the legislature does. Attorney General Greg Zoeller has appealed.

“This provides a rigid framework for four existing preserves,” said Sen. Sue Glick, R-LaGrange. “Without this bill, there is no regulation in place.”

That makes a decision by the Indiana Supreme Court on pending litigation huge. The legal battle has been ongoing for 10 years.

If the court agrees to accept an appeal and sides with the DNR, the preserves would be shut down and no new ones could open. If the court agrees with the appellate ruling, the preserves can exist with no rules until the legislature can act next year.

The issue always stirs emotions in the Statehouse, and Tuesday’s debate was no different. The Senate also killed the bill last year.

Here is Ryan Sabalow's story in the Indianapolis Star.

Here is some background from the ILB:

Posted by Marcia Oddi on April 15, 2015 09:20 AM
Posted to Indiana Government

Tuesday, April 14, 2015

Ind. Law - Dual covers for 2015 issue of Indiana Best Lawyers

Best Lawyers 2015 Indiana edition sports a dual cover on this promotional page, switching back and forth between a photo of Rob Dassow, Nick Deets, Rick Hovde & Boyd Hovde, of Hovde Dassow + Deets LLC, and a photo of Kathleen Sweeney, of Sweeney Hayes.

Some quotes from the Sweeney story:

Kathleen Sweeney says that each career choice she’s made has been in pursuit of doing something meaningful. From being a state and federal prosecutor to training public defenders to founding her own private law firm, Sweeney has chosen to do things that would be important not only to herself as an attorney, but to the clients she has helped.

“Choosing things that are meaningful, I think, has made me a better lawyer,” she says.

Sweeney began her career as a prosecutor, serving as Assistant United States Attorney in white-collar prosecution for the Southern District of Indiana, and many of her cases involved sex crimes and child abuse. In 2001, she decided to start her own private civil rights practice because she “wanted to be in touch more with the people who were being accused or deprived.” Sweeney said she has always been one to root for the underdog. * * *

A case Sweeney is particularly proud of is Mueller v. State, in which she successfully argued that Indiana’s policy for diversion (which required defendants to pay a fee to have charges dismissed) violated the Equal Protection Clause of the 14th Amendment. Sweeney said her argument was initially laughed at, but eventually, the judge came around and ruled the policy was unconstitutional. Now, if defendants can’t pay the fee, they can do community service to get charges dismissed.

Another case that Sweeney is proud to have been part of is Lee v. Pence, which brought marriage equality to Indiana last year. Sweeney was part of a group of lawyers that represented several first-responder same-sex couples in their fight to achieve the same legal benefits as heterosexual married couples.

ILB: Mueller was a 2005 Court of Appeals opinion, see this ILB post from Nov. 16, 2005, and this coverage from the press the same day. See also this earlier post from May 26, 2004. Judge Barnes' opinion includes this notable footnote #7 on p. 13:
The State argues in its brief that the $230 in fees is “hardly excessive” and, “That money easily could be saved by eliminating expenditures on items such as alcohol, cigarettes, cable television, cell phone usage, and eating out in restaurants.” Appellee’s Br. p. 13 n.3. Undoubtedly, not every person who claims to be indigent turns out to be so, and the number of persons unable to pay these fees may be a small percentage of persons applying for the Prosecutor’s pretrial diversion program. However, we do not doubt the existence of extreme poverty in society and it is inappropriate to presume that persons in dire financial straits have wasted their money on drinking, smoking, cable television, cell phones, or dining out.
Another notable Sweeney win was in Wallace v. State, a 2009 Supreme Court decision holding application of a sex offender registration law as to a defendant who committed his offense before the statutes were enacted constituted retroactive punishment forbidden by the ex post facto clause of the Indiana Constitution.

Posted by Marcia Oddi on April 14, 2015 01:29 PM
Posted to Indiana Law

Ind. Gov't. - More on "Local Communities Updating Ordinances In Response To RFRA"

Updating this ILB post from April 8th, Maureen Hayden, CNHI, reported April 13th for the Kokomo Tribune (here at IED):

INDIANAPOLIS — As legislators scrambled to respond to fallout from a divisive religious freedom law that critics said sanctioned discrimination, Republican activist Brent Kent went online to do some damage control of his own.

Kent launched a petition asking residents of his small hometown of Martinsville to push their elected leaders to adopt an anti-discrimination ordinance to protect gays and lesbians.

Within days, Martinsville Mayor Phil Deckard signed an executive order barring discrimination based on sexual orientation, as well as a City Council proclamation declaring the community open to all. That set into motion the work of drafting an expansive human rights ordinance.

The local Chamber of Commerce quickly posted the proclamation on its website.

If Martinsville adopts a human rights ordinance, as expected, it will join a growing number of communities that are moving to create or expand similar laws in the aftermath of the state's controversial Religious Freedom Restoration Act. * * *

Republicans who control the General Assembly have said they won't take up the issue until next year's legislative session, at the earliest.

So, the focus instead has turned to communities including Martinsville.

For decades, the southern Indiana city of 10,000 people was plagued with what Kent calls an unfair reputation as a closed, racist community. That stemmed from a 1960s murder of a young black woman and a complicated history with the Ku Klux Klan.

Kent was pleased by his city's reaction to the state's religious freedom law.

“It was an opportunity for the people of Martinsville to state and really re-state what’s important to them,” he said. “And it’s something the state of Indiana should have already done.”

The ACLU and Freedom Indiana are offering a legal “framework” for other cities, towns and counties to follow. Legal scholars say those efforts may be accelerated by the "fix" passed by lawmakers to quell controversy over the religious freedom act.

The Legislature's amendment said the new law cannot be used as protection against discrimination claims based on sexual orientation and gender identity.

In essence, that carves out room for local ordinances that protect gay and transgender people from discrimination, said Indiana University law professor Robert Katz.

“But, at the state level, it’s still perfectly legal to discriminate against gays and lesbians in any context,” he said. * * *

After the religious freedom law passed, local officials across the state — Republican and Democrat — began re-examining what’s on their books.

Muncie was among the first to act. On April 6, its city council revised a non-discrimination ordinance to add protections for sexual orientation and gender identity. Existing rules cover race, religion and ethnicity.

The updated ordinance took effect the next day.

Terre Haute officials are looking at their 16-year-old human rights ordinance, which covers sexual orientation but lacks much enforcement power.

Jeff Lorick, executive director of the Terre Haute Human Relations Commission, would like to see that changed. An expanded ordinance could save the city money on potential lawsuits and make its citizens feel more valued, he said.

In conservative Martinsville, the mayor’s order not only bars the city from discriminating based on sexual orientation and gender identity, it extends the same prohibition to vendors doing business with the city.

Posted by Marcia Oddi on April 14, 2015 01:04 PM
Posted to Indiana Government

Ind. Decisions - Court of Appeals issues 3 opinion(s) today (and 9 NFP memorandum decisions)

For publication opinions today (3):

In Think Tank Software Development Corp., d/b/a Think Tank Networking Tech. Group and Think Tank Info. Systems v. Chester, Inc., Mike Heinhold, John Mario, Joel Parker, Thomas Guelinas, Jon Meyer, Daniel, a 17-page opinion, Judge Baker writes:

Think Tank Software Development Corporation d/b/a Think Tank Networking Technologies Group and Think Tank Information Systems (“Think Tank”) appeals the trial court’s directed verdict in favor of Defendants–Appellees * * * (collectively, the defendants) on Think Tank’s claim for misappropriation of trade secrets. In addition, Think Tank appeals the trial court’s determination that its non-solicitation claim was barred. Finding that the trial court did not err in granting a directed verdict and correctly determined that Think Tank’s non-solicitation claim was barred, we affirm the judgment of the trial court.
In 5200 Keystone Limited Realty, LLC v. Filmcraft Laboratories, Inc., Eric J. Spicklemire, Portrait America, Inc., A.C. Demaree, Inc., Clean Car, Inc., and The Wax Museum & Auto Sales, Inc., a 26-page opinion, Judge Friedlander writes:
This litigation involves a dispute over responsibility for the costs of environmental cleanup of commercial real estate (the Site) located near the corner of 52nd St. and Keystone Avenue in Indianapolis. * * * The complaint alleged causes of action under these three statutes: [IC 13-11-2-70.3 (creating an “environmental legal action” (ELA), which is a legal action “brought to recover reasonable costs associated with removal or remedial action involving a hazardous substance or petroleum released into the surface or subsurface soil or groundwater that poses a risk to human health and the environment”), IC 13-30-3-13(d) (creating an action to recover reasonable expenses and attorney fees incurred by a landowner on whose land solid waste has been illegally dumped), and IC 6-1.1-22-13 (liability for back property taxes)] * * *

KLR presents the following consolidated, restated issues for review:
1. Did the trial court err in excluding expert testimony regarding whether the Wax Museum & Auto Sales and Clean Car caused or contributed to the contamination at the Site?
2. Did the trial court err in entering summary judgment against KLR on its common-law claims?
3. Did the trial court err in dismissing KLR’s complaint pursuant to Trial Rule 41(B) on grounds that KLR failed to present sufficient evidence to show Spicklemire caused or contributed to chlorinated solvent and petroleum hydrocarbon contamination of the Site?
We affirm.

In Paul D. Woodcox v. State of Indiana, a 9-page opinion, Judge Riley concludes:
In the present case, Woodcox was adjudged guilty of a Class A felony—which merits a fifty-year sentence, but the entry of judgment mistakenly refers to a Class B felony. Thus, it is an error of form rather than substance. If we were to hold that Indiana Code section 35-38-1-15 requires correction of Woodcox’s sentence when the error is in the entry of the judgment of conviction, Woodcox would receive a sentencing windfall based on a clerical error—i.e., he would get the benefit of a Class B felony sentence on a Class A felony conviction. The interests of justice demand that he serve the sentence for the Class A felony that he committed. Therefore, we find the appropriate remedy is to remand with instructions for the trial court to make a nunc pro tunc correction of the clerical error contained in both the sentencing judgment and the abstract of judgment to accurately reflect that Woodcox was convicted of Class A felony rape, for which he was properly sentenced.

Based on the foregoing, we conclude that the trial court did not err in denying Woodcox’s Motion to Correct Erroneous Sentence. We affirm his fifty-year sentence, enhanced by thirty years, for Class A felony rape. However, we must remand with instructions for the trial court to correct the sentencing judgment (judgment of conviction) and the abstract of judgment to reflect that Woodcox was convicted of rape as a Class A felony.

NFP civil decisions today (3):

Boris Mudd v. Jason Johnson (mem. dec.)

In the Matter of the Termination of the Parent-Child Relationship of J.M., Mother, and C.W., Child, J.M. v. Ind. Dept. of Child Services (mem. dec.)

In the Matter of the Termination of the Parent-Child Relationship of: Br.S & B.S. and E.S. (Mother) v. The Ind. Dept. of Child Services (mem. dec.)

NFP criminal decisions today (6):

Leona Rae Hawk v. State of Indiana (mem. dec.)

James E. Manley v. State of Indiana (mem. dec.)

Rex A. Shannon v. State of Indiana (mem. dec.)

Stephen A. Jones v. State of Indiana (mem. dec.)

Joshua Donica v. State of Indiana (mem. dec.)

Bradley S. Stock v. State of Indiana (mem. dec.)

Posted by Marcia Oddi on April 14, 2015 11:17 AM
Posted to Ind. App.Ct. Decisions

Ind. Gov't. - "Senate limits high-fenced hunting to existing facilities"

That is the headline to Niki Kelly's story today in the Fort Wayne Journal Gazette. A quote:

But [Senator] Glick said repeatedly the bill allows the license to be sold or transferred but limits it to four preserves at all times.

The legislation has bounced back and forth this session between expanding the industry to anyone versus grandfathering it to existing preserves only.

House Bill 1453 adds guidelines to the facilities, including a minimum of 100 acres; a 10-foot-tall fence [ILB- actually it is now 8 foot] and special hunting licenses. Also, the preserves could only use deer born and raised in Indiana for hunting purposes.

Another key provision is the state will no longer be on the hook financially for any disease outbreaks at a high-fenced hunting facility.

Ryan Sabalow's long IndyStar story reports in part:
Sen. Susan Glick, R-LaGrange, added amendments to House Bill 1453 that cut out a provision that would have allowed any fenced hunting preserve larger than 160 acres to open.

Instead, the amended bill would allow only the four hunting preserves now operating in Indiana to stay in business.

Glick's amendment also adds the threat of a Level 6 felony charge if a preserve owner is caught deliberately violating the regulations set forth in the bill.

The amendment does offer some concessions to Indiana's captive-deer industry. It would allow current owners to sell or move to a new location as long as the hunting area is at least 100 acres, and it would reduce the fence height requirements for a preserve from 10 feet to 8 feet.

Under the current version of the bill, owners of Indiana's fenced hunting preserves would be forbidden from selling a deer for a hunt within 24 hours of it being sedated, and only animals born and raised on Indiana deer farms could be hunted.

The bill also includes a provision that says Indiana taxpayers wouldn't have to pay a preserve owner if state officials kill his or her deer in the event of a disease outbreak.

The bill also would set record-keeping requirements and some hunting ground rules, would forbid owners from releasing animals into the wild and would require owners to report escapes into the wild within 24 hours.

Even with the additional regulations, it's still not what opponents of the industry want: a complete ban on what they disparagingly call "canned hunting."

"There are issues you aren't able to compromise on, and this is one of them," said Jeff Wells, president of the Indiana Conservation Officer Organization.

ILB: So, the current, April 14th version of the bill allows hunting preserve licenses to be issued to anyone who owned and operated a preserve in 2014. Reportedly, there are four such entities. They would be eligible for transferable, assignable licenses which could be sold or leased and which would exist in perpetuity.

Posted by Marcia Oddi on April 14, 2015 10:47 AM
Posted to Indiana Government

Ind. Gov't. - "Which of those two stories — RFRA or Ritz — will have the longest legs by November 2016, when voters get their next crack at state lawmakers and a supermajority Republican House and Senate?"

That question is asked today by Dave Bangert in his Lafayette Journal & Courier column, headed "RFRA to Ritz, the next perception fight: Statehouse Republicans missed how the Religious Freedom Restoration Act would be perceived. Will they miss things again as they finalize plans to marginalize Glenda Ritz?" It begins:

In a state still licking its wounds from 15 brutal minutes in the national spotlight, the Religious Freedom Restoration Act remains the gift that keeps on giving.

A week after a Senate committee set aside $1 million in the state budget for some damage control, the Indiana Economic Development Corp. hired Porter Novelli, a New York-based firm, to lead “ongoing public relations initiatives” to help brand Indiana “as a welcoming place to live, visit and do business.”

In other words, come up with a plan to explain away the perception that the Religious Freedom Restoration Act cleared the deck for blatant discrimination of gays and lesbians — no matter how innocent the law was intended by lawmakers, totally blindsided by the blowback.

But as the ILB tweeted this morning:
Perhaps a more direct and effective approach to improve our image would be to broaden our civil rights law.

Posted by Marcia Oddi on April 14, 2015 10:21 AM
Posted to Indiana Government

Ind. Gov't. - Changing the rules after the horse is out of the barn?

Yes, a mixed metaphor.

In Wisconsin the voters passed a constitutional amendment to change the way a chief justice is selected. The current chief justice holds her position because of tenure - she is the most senior member. The constitutional amendment says that the chief justice shall be selected by her peers. The question is whether the amendment goes into operation immediately, impacting the term of the current chief justice; its language does not address the issue of retroactivity.

But we have equally interesting questions here in Indiana. This is what has my attention:

  • At the behest of the gun industry, the General Assembly is on the verge of passing a bill that would invalidate a pending lawsuit. Lawsuits take place in the separate judicial branch of government. Can the legislature determine pending cases on its own, taking the place of the court?

  • The General Assembly also is on the verge of altering the responsibilities, and perhaps even the office, of a sitting, separately elected state official, who was elected by voters to serve for a statutory defined term, with specific duties set by law.

Posted by Marcia Oddi on April 14, 2015 09:46 AM
Posted to Indiana Government

Monday, April 13, 2015

Ind. Decisions - CJ Vaidik harshly criticizes attorney for citing a NFP

Earlier this month a reader called the ILB's attention to this footnote in a March 31st NFP decision by Chief Judge Vaidik. The language appears on the last page of the decisions, as footnote 3:

We note that SVT relies in part on an unpublished memorandum opinion in support of its argument. This is contrary to Indiana Appellate Rule 65, which provides: “[A] memorandum decision shall not be regarded as precedent and shall not be cited to any court except by the parties to the case to establish res judicata, collateral estoppel, or law of the case.” See Ind. App. R. 65(D). A court-rule violation of this nature significantly undermines our confidence in counsel’s credibility.
This is consistent with CJ Vaidik's position from an oral argument, quoted in this Sept. 10, 2014 ILB post headed "Ind. Courts - NFP Decisions Cannot Be Cited — Or Can They?" From the earlier post:
CJ Vaidik: You're aware of the fact that you can't cite nonpublished opinions, aren't you?

Attorney: I am aware that some judges accept them and some don't.

CJ: No. The rules provides that you are not to cite not for publication opinions and you have done so in this case and there's not some judges that accept them and some judges don't. The rules are the rules. So I wonder, as I look through your brief, what rules you have chosen to follow and what rules you haven't.

Attorney: [apologizes and offers to withdraw the case cited]

CJ: I'll tell you right now, as far as I'm concerned it is cut out of the brief and no one is considering it.

Posted by Marcia Oddi on April 13, 2015 03:03 PM
Posted to Indiana Decisions

Ind. Gov't. - Senate bill directs a look at the Tax Court backlog

A reader has pointed the ILB to SB 423, a bill on property tax issues, currently eligible for Senate concurrence. See the language in SECTION 8, p. 15 of the April 3rd printing, which has been a part of the bill since its introduction by Sen. Kenley:

SECTION 8. IC 33-38-9-11 IS ADDED TO THE INDIANA CODE AS A NEW SECTION TO READ AS FOLLOWS [EFFECTIVE JULY 1, 2015]: Sec. 11. (a) This section applies after December 31, 2015, and before January 1, 2017.

(b) The Indiana judicial center shall review the workload and backlog of cases in the Indiana tax court and submit a report to the legislative council based on the center's review by December 1, 2016. The report must contain the following information:
(1) A review and analysis of the methods and procedures for case disposition in the Indiana tax court, including:
(A) findings concerning efficiencies of the methods and procedures in the Indiana tax court; and
(B) recommendations (if any) for necessary improvement of case dispositions in the Indiana tax court.
(2) Consideration of any reports and recommendations concerning the Indiana tax court prepared and published by the division of court administration under IC 33-24-6-3.

(c) The tax court judge and tax court personnel under IC 33-26-4-2 shall furnish to the Indiana judicial center or the center's employees all requested tax court information necessary for purposes of this section and that is not otherwise confidential.

(d) The Indiana judicial center may employ contract services for purposes of this section.

(e) The report submitted to the legislative council must be in an electronic format under IC 5-14-6.

ILB: On Sept. 14, 2014, the ILB had a lengthy post headed "Ind. Courts - A look at the Indiana Tax Court." An update followed on Nov. 18, 2014.

The ILB has heard some talk that the Tax Court is part of the business court mix that the Chief Justice is working on.

(Some readers may recall that in 2013 the General Assembly enacted IC 33-23-17, creating the Judicial Technology Oversight Committee (JTOC), with a sweeping charge - see this March 19, 2915 ILB post. Nothing that the JTOC has done has ever been released to the public. SB 423, however, requires that a written report be submitted to the legislative council.)

Posted by Marcia Oddi on April 13, 2015 02:18 PM
Posted to Indiana Government

Ind. Gov't. - Some bills the ILB is following this afternoon

Both houses covnene at 1:30. Some bills the ILB is following this afternoon:

  • HB 1453 - high fenced hunting - 2nd reading amendments filed

  • SB 98 - Gary suit against gun mfgs. - 2nd reading amendments filed

  • SB 523 - Marion County courts - 8 amendments filed.

All are on 2nd reading today.

Posted by Marcia Oddi on April 13, 2015 01:28 PM
Posted to Indiana Government

Environment - "Porter County residential, agriculture interests clash over proposed pig facility"

That is the headline from a long story in the NWI Times reported by Bob Kasarda. Some quotes:

VALPARAISO | Residential and agricultural interests are clashing over a request for Porter County to rezone 40 acres in Morgan Township to allow for a confined feeding operation designed to raise 5,600 pigs at a time.

Robert Sands, who has been farming in the area for 20 years, said the proposal will allow him to diversify his business and create a new opportunity for his 23-year-old son, Brandon.

"This is my family farm," he said.

But opponents, such as Rebecca Tomerlin, who started an online petition that had generated more than 2,000 signatures by the end of the week, sees the proposed feeding operation as a threat.

She fears real estate values in the area and infrastructure, such as the roads, will suffer, along with groundwater quality. Tomerlin is also concerned about the quality of life for the pigs raised in the confined conditions, but realizes that is not likely an issue the Porter County Plan Commission can consider when it takes up the rezoning request May 27.

"There's nothing wrong with farming," she said. "It's one thing to live next a cornfield, (but) another to live next to a CAFO (concentrated animal feeding operation) for hogs."

Robert Sands declined comment on the concerns, saying he has hired an engineering firm to address all those issues during the May 27 county meeting.

Robert and Tammy Sands have asked the plan commission to change the zoning of the 40-acre site at 181 S. Smoke Road from general agriculture to a high impact use district. The proposed use will also need approval of a special exception from the Porter County Board of Zoning Appeals.

As with many similar operations, the family will not own the pigs, the pigs will be the property of a business group; the family will simply tend to them. The story does not go into the financial terms of the related extensive and expensive construction:
The proposal calls for the construction of two 101-by-10-by-245-feet "wean-to-finish pig buildings," according to the application. The buildings will have self-contained, below-building concrete manure storage areas and mechanical ventilation.

Brandon Sands, a student at Ivy Tech's agriculture program, said he was the one to initiate the new pig operation after meeting with representatives of Belstra Group Farms of DeMotte during a career fair.

"It's always been a dream of mine to get back into livestock," he said.

The proposed business deal calls for Belstra to provide and own the pigs, with the Sands family "growing" the animals at its new facilities. * * *

Porter County Plan Commission Executive Director Bob Thompson has said the proposed operation would be the largest of its type in Porter County.

The new high impact zoning sought for the site would also allow for other uses, such as an asphalt plant, amusement park, race track, incinerator, junk yard and prison, unless specifically limited by county officials, he has said.

In other words, the zoning would need to be changed from an agricultural to an industrial designation.

Here is an earlier, April 7th story, by Amy Lavalley of the Gary Post-Tribune. A few quotes:

The concentrated animal feeding operation, or CAFO, is up for a hearing at the plan commission's May 27 meeting. The proposal requires a land rezoning from general agriculture to high impact use because it needs a permit from the Indiana Department of Environmental Management.

"These are Valparaiso residents. They are homeowners, and they are not happy about their property values going down or the roads being torn up," Tomerlin said, adding that there are also worries that if the rezoning is approved, there would be nothing to stop the hog operation from growing even larger.

Posted by Marcia Oddi on April 13, 2015 12:01 PM
Posted to Environment | Indiana Government

Environment - "Bat-Preservation Rules Rile Industry"

From the April 7th $$ WSJ, a story by Kris Maher - a few quotes:

A recent federal decision to list the northern long-eared bat as a threatened species has come under fire from industry groups, which say new regulations will raise costs for businesses in more than two dozen states without addressing the disease that is decimating the flying mammals.

Millions of bats in the Northeast have died from white-nose syndrome since 2006, when the fungus that causes the condition was discovered in a cave in upstate New York. In some areas, 99% of the bat population has been wiped out, raising alarms since bats keep a check on mosquitoes as well as insect pests that damage crops.

The fungus has been detected in 28 of the 37 states inhabited by the northern long-eared bat, one of seven species affected by the syndrome and the first to be listed as threatened.

The U.S. Fish and Wildlife Service issued regulations Thursday that prohibit harming northern long-eared bats or cutting down trees where they roost, except under certain conditions. The agency exempted some forest-management practices and timber harvesting as long as they occur more than a quarter mile from caves where bats hibernate or trees where they roost.

The story includes a map; counties in southern Indiana are impacted.

Posted by Marcia Oddi on April 13, 2015 11:55 AM
Posted to Environment

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

For publication opinions today (1):

In Israel Munoz v. Jerome Woroszylo,an 11-page opinion, Judge Bailey writes:

After a car accident, Israel Munoz (“Munoz”), an Indiana resident, was sued by Jerome Woroszylo (“Woroszylo”), an Illinois resident, in a federal court in Illinois. Woroszylo filed his case in the federal court shortly before the limitations period for a suit expired. Concluding that it lacked personal jurisdiction over Munoz, the federal court in Illinois dismissed Woroszylo’s action.

Woroszylo subsequently filed suit in Tippecanoe County, relying upon the Journey’s Account Statute to preserve his action. Munoz moved to dismiss, contending that the statute did not operate to preserve Woroszylo’s claim. The trial court denied Munoz’s motion to dismiss. Munoz sought leave to pursue a discretionary interlocutory appeal of the trial court’s order; we granted Munoz’s motion. * * *

The [Journey’s Account] Statute is a legislative enactment that takes the place of common law remedies intended to permit lawsuits to continue after dismissals on technical grounds. * * *

Woroszylo’s decision to file suit in the Northern District of Indiana was bad judgment. Bad judgment is not, however, bad faith. Id. Indeed, we note that while the federal court had discretionary authority to decline Woroszylo’s request that his case be transferred into the U.S. District Court for the Northern District of Indiana, see 28 U.S.C. § 1404(a), if Woroszylo had brought suit in an improper venue in an Indiana state court, transfer to an Indiana court with proper venue would have been mandatory under Indiana’s venue rules. See T.R. 75(B). This reflects Indiana courts’ general preference for deciding cases on their merits and for avoiding the construction of procedural obstacles to the presentation of such cases. Lindsey v. De Groot Dairy LLC, 867 N.E.2d 602, 606 (Ind. Ct. App. 2007), trans. denied. Indeed, the very same policy is served by the Journey’s Account Statute.

For all the foregoing reasons, we find no reversible error in the trial court’s denial of Munoz’s motion to dismiss. Affirmed.

NFP civil decisions today (2):

Jack Weichman; Medical Management and Data Services, Inc.; and Weichman and Associates, P.C. v. Domenico Lazzaro, M.D.; Joseph Pabon, M.D.; et al. (mem. dec.)

R.S. v. A.S. (mem. dec.)

NFP criminal decisions today (4):

Sheba Sorrells v. State of Indiana (mem. dec.)

Jerrick Matthews v. State of Indiana (mem. dec.)

Titus S. Dunn v. State of Indiana (mem. dec.)

Myron B. James v. State of Indiana (mem. dec.)

Posted by Marcia Oddi on April 13, 2015 11:15 AM
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Transfer list for week ending April 10, 2015

Here is the Clerk's transfer list for the week ending Friday, April 10, 2015. It is one page (and 11 cases) long.

No transfers were granted last week.

Posted by Marcia Oddi on April 13, 2015 10:52 AM
Posted to Indiana Transfer Lists

Ind. Courts - Highlights of the Court of Appeals 2014 Annual Report

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

The Court of Appeals 2014 annual report is available online, issued at some point in the past few days or weeks without a press release. Appellate lawyers and those who follow the appellate courts will find much of interest in the eleven-page report, and I’ve included below some highlights similar to those I noted in recent years.

The most surprising statistic in the report is the average age of pending cases. Some of the judges will often note they are the fastest intermediate appellate court in the nation, and annual reports for the past several years included the age of pending cases at just one month. At the end of 2014, however, the average age of pending cases had increased 50%:

Average Age of Cases Pending
12/31/2014 1.5 months
12/31/2013 1.0 months
12/31/2012 1.0 months
12/31/2011 1.2 months
12/31/2010 1.1 months
12/31/2009 1.0 months
12/31/2008 1.1 months

Beyond that statistic, most of the 2014 report looked similar to those issued in recent years.

The number of majority opinions rebounded a bit from recent years, as shown in the following table:

Indiana Court of Appeals Majority Opinions, 2008 - 2014
Year Criminal/PCR Civil Expedited/Other Total
2014 1257 574 315 2146
2013 1232 557 269 2058
2012 1271 594 278 2143
2011 1408 654 335 2397
2010 1411 610 583 2375
2009 1613 583 373 2569
2008 1700 716 323 2739

The number of majority opinions written by each judge again varied considerably, from 101 (written by Judge Pyle, who also had the fewest last year with 91 opinions) to 156 (by Judge Baker, who reclaimed top honors from Judge Crone, who was second this year at 149). The average among the fifteen judges was 135 opinions (up from 130 last year). (Six senior judges collectively wrote 125 opinions for the court.) As mentioned in last year’s post, these numbers are much lower than during the higher caseload years when Judge Baker would often top the list with numbers like 313 (2007) or 242 (2008).

Again this year, the vast majority of opinions were unanimous. The fifteen judges penned an average of only 5.5 dissenting opinions (83 total, up from 72 last year). Judge Pyle again authored zero dissenting opinions, the only member of the Court to hold that distinction this year. Topping the list of dissenters were Judge Riley (16) and Judge Baker (10), who wrote the same number of dissents as last year, and who were joined this year by Judge Robb (10) as the only other judge in double digits.

The Court of Appeals published an average of 24% of its opinions, again with wide variations among judges. As in 2013, the same three judges again published more than 30% of their opinions: Judges Brown (32.6%), May (34.1%), and Pyle (39.6%). At the other end of the spectrum, the same three judges again, as in 2013, published less than 17%: Judges Friedlander (11.1%), Kirsch (12.0%), and Bailey (16.3%). Judges Friedlander and Kirsch also published the lowest percentage of their opinions in 2012.

The court heard slightly fewer arguments (69) in 2014 than in recent years. Excluding senior judges, most judges were near the average of 13, except for Judge Brown (4), who was again at the low end, and Judges Baker (22), Bradford (21), and Robb (25) on the high end. As explained in this post, the court denies more requests for oral argument than its grants. It denied 77 requests in 2014, and many of the 69 arguments were scheduled without a request from counsel. The odds of oral argument is a meager 3.2%.

Similar to last year, the court granted 38% (70) of the 186 petitions for permissive interlocutory appeals filed in 2014.

Finally, the court received a petition for rehearing in about 10% (218) of its decided cases. It granted fewer than 11% (23) of those petitions, which is down considerably from 16% (42) last year.

Posted by Marcia Oddi on April 13, 2015 10:33 AM
Posted to Schumm - Commentary

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

From Sunday, April 13, 2015:

From Saturday, April 12, 2015:
  • Nothing

Posted by Marcia Oddi on April 13, 2015 08:33 AM
Posted to Catch-up

Ind. Decisions - Upcoming oral arguments this week and next

Ind. Decisions - Upcoming oral arguments this week and next

This week's oral arguments before the Supreme Court (week of 4/13/15):

  • No oral arguments currently scheduled.

Next week's oral arguments before the Supreme Court (week of 4/20/15):

  • 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 4/13/15):

Monday, April 13

  • 1:30 PM - Lincoln National Life Insurance Co. v. Bezich, individually and on behalf of a class of others similarly situated (02A04-1407-PL-319) Peter Bezich filed suit against The Lincoln National Life Insurance Company ("Lincoln"). Bezich's complaint included claims of three separate breaches of his insurance contract by Lincoln, and Bezich requested that the trial court allow all three counts to be maintained as a class action that would include a class of policyholders spanning numerous states. The trial court denied class certification with respect to Counts 1 and 2, but granted class certification with respect to Count 3. Lincoln appeals, arguing the trial court erred by granting class certification as to Count 3. Bezich cross appeals, arguing that the trial court erred by denying class certification for Counts 1 and 2. The Scheduled Panel Members are: Judges Bailey, Robb and Brown. [Where: Court of Appeals Courtroom (WEBCAST)]

Tuesday, April 14

  • 1:00 PM - Wertz v. State (48A04-1409-CR-427) On Sept. 9, 2011, Christopher Wertz was driving in Madison County when he lost control of his vehicle and struck a utility pole. Wertz was severely injured and his passenger, Megan Solinski, died at the scene of the accident as a result of injuries sustained. Law enforcement officers found a Garmin GPS device near the wrecked vehicle. An officer obtained the password to Wertz's GPS device and was able to collect information from the device, including the route Wertz traveled and his speed at the time of the accident. The State charged Wertz with reckless homicide, a Class C felony, and Wertz filed a motion to suppress evidence obtained through the warrantless search of his GPS device. The trial court denies Wertz's motion to suppress, and Wertz subsequently brought this interlocutory appeal.. The Scheduled Panel Members are: Judges Riley, Bailey and Robb. [Where: Hammond Academy for Science and Technology, 33 Muenich Court, Hammond, IN]

  • 3:00 PM - Fight Against Brownsburg Annexation v. Town of Brownsburg (32A01-1407-PL-300) A group called Fight Against Brownsburg Annexation ("FABA") opposed the Town of Brownsburg's ("Brownsburg") proposed annexation of 4,461 acres north of the town and filed a remonstrance petition with the trial court. The trial court dismissed the remonstrance petition for lack of subject matter jurisdiction. FABA appeals from the dismissal of its remonstrance petition and presents two issues for our review: (1) whether the trial court erred when it found that some of the signatures in support of the remonstrance petition were invalid because they predated Bronwsburg's adoption of the annexation ordinance; and (2) whether FABA was required, under Indiana Code Section 36-4-6-12, to obtain the signatures of every owner of a parcel owned by more than one person. In addition, the Court of Appeals asks the parties to address whether a Trial Rule 12(B)(1) motion to dismiss for lack of subject matter jurisdiction is the proper vehicle to attack the sufficiency of a remonstrance petition under Indiana Code Section 36-4-6-12. The parties should be ready to discuss our Supreme Court's holdings relevant to that issue in In re Adoption of O.R., 16 N.E.3d 965 (Ind. 2014), and Packard v. Shoopman, 852 N.E.2d 927 (Ind. 2006) as well as this court's holdings in City of Kokomo ex. rel Goodnight v. Pogue, 940 N.E.2d 833, 836 (Ind. Ct. App. 2010), and Herdt v. City of Jeffersonville (In re Petition to Annex Approximately 7,806 Acres of Real Estate into City of Jeffersonville), 891 N.E.2d 1157 (Ind. Ct. App. 2008), trans. denied. The Scheduled Panel Members are: Judges Baker, Najam and Friedlander. [Where: Supreme Court Courtroom (WEBCAST)]

  • 3:30 PM - Johnson v. State (48A05-1406-CR-269) Tiras Johnson's ("Johnson") probation was revoked by the Madison Circuit Court after the State proved by a preponderance of the evidence that Johnson both possessed and dealt marijuana while on probation. Johnson appeals his probation revocation and argues that the trial court abused its discretion when it denied his motion to suppress evidence seized during the warrantless search of his friend's residence, where some of Johnson's personal property was located. Specifically, Johnson argues that the warrantless search violated both the Fourth Amendment of the United States Constitution and Article One, Section Eleven of the Indiana Constitution because no exigent circumstances existed to justify the law enforcement officer's entry into his friend's home. In response, the State argues that Johnson does not have standing to challenge the search because he had no reasonable expectation of privacy in the residence where the marijuana was found. In the alternative, the State asserts that the officer's warrantless entry was constitutionally permissible because of the existence of exigent circumstances. The Scheduled Panel Members are: Judges Mathias, Barnes and Crone. [Where: Manchester University, 604 E. College Ave., North Manchester, IN ]
Thursday, April 16

  • 1:00 PM - Blackmon v. State (71A03-1411-CR-413) In this case, Blackmon was charged with intimidation, which our Code defines as "communicat[ing] a threat to another person, with the intent that the other person be placed in fear of retaliation for a prior lawful act." IC 35-45-2-1. Blackmon argues that the evidence was insufficient to show that he threatened the victim or that any threat was intended to place the victim in fear of retaliation for the prior lawful act specified in the charge. The Scheduled Panel Members are: Judges Baker, May and Bradford. [Where: Merrillville Branch, Lake County Public Library, 1919 W. 81st. Ave., Merrillville, IN ]

Next week's oral arguments before the Court of Appeals (week of 4/20/15):

Monday, April 20

  • 1:15 PM - Julian v. State (48A02-1407-CR-477) Tony Julian ("Julian") was convicted in Madison Circuit Court of Class B felony dealing in methamphetamine; Class D felony possession of chemical reagents or precursors with the intent to manufacture a controlled substance; Class D felony maintaining a common nuisance; and Class A misdemeanor false informing. Julian appeals his convictions raising two issues, which we restate as three: 1) whether the police officer's warrantless entry into his apartment violated the Fourth Amendment to the United States Constitution and Article One, Section Eleven of the Indiana Constitution; 2) whether, because he failed to object at trial, admission of the evidence seized during the search of Julian's apartment constitutes fundamental error; and 3) whether the State presented sufficient evidence to prove that he constructively possessed the evidence seized by police officers during the search of his apartment. The Scheduled Panel Members are: Judges Kirsch, Mathias and Bradford. [Where: Cathedral High School, 5225 E. 56th St., Indianapolis, IN]

Friday, April 24

  • 1:00 PM - State v. Stevens (62A01-1406-CR-268) After noticing suspicious activity on the pseudoephedrine purchase logs of a local drug store, a Perry County sheriff's deputy ran a criminal history check on one of the purchasers, William Stevens. Because the check revealed that Stevens had a Florida conviction for "Poss Meth W Intent to Sell Manufacture Deliver," the deputy believed that it was illegal for Stevens to purchase pseudoeophedrine. When Stevens later attempted to purchase more pseudoephedrine at the same drug store, the police were notified and Stevens was arrested. Stevens admitted that he had approximately one gram of methamphetamine in his pocket. Stevens' fiancee later consented to a search of their home, and evidence of methamphetamine manufacturing was discovered inside the residence. The State charged Stevens with possession of methamphetamine, possession of paraphernalia, possession of a precursor by a methamphetamine offender, and maintaining a common nuisance. At trial, Stevens filed a motion to suppress all evidence seized by police and statements he made to police, arguing that his prior conviction in Florida was not for methamphetamine possession but for Alprazolam possession and that, as a result, no probable cause existed for his arrest. The trial court granted Stevens' motion to suppress. The charges against Stevens were subsequently dismissed. The State appeals and argues that the trial court abused its discretion in granting Stevens' motion to suppress because the officers acted reasonably in arresting Stevens based on the information they had at the time, even though that information turned out to be incorrect. The State also argues that Stevens' fiancee's consent to search their home was an intervening act that made the evidence admissible. The Scheduled Panel Members are: Not Available. [Where: Taylor University, Upland, IN ]

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

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

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

Posted by Marcia Oddi on April 13, 2015 08:22 AM
Posted to Upcoming Oral Arguments

Sunday, April 12, 2015

Ind. Gov't. - More on the Indiana Dunes Pavilion improvement project

Updating a now long list of earlier ILB posts on the Indiana Dunes State Park and particularly the Pavilion project, here is an April 7th story from the NWI Times headed "Indiana Dunes State Park named one of nation's best," and a Gary Post-Tribune story, also from April 7th, headed "Dunes gets spot on national top 10 parks list."

On the same day, however, the NWI Times reported "Save the Dunes opposes pavilion, expansion project." Some quotes:

MICHIGAN CITY | Save the Dunes announced Tuesday its opposition to the Indiana Dunes State Park pavilion and expansion project and calls for the halt the project to gather more public input.

Members of Save the Dunes, an environmental group dedicated to preserving the Indiana Dunes, attended Monday's open house held by the DNR and Pavilion Partners LLC, and said it was disappointed with the lack of authentic stakeholder engagement at the meeting.

The group said it believes the DNR and Pavilion Partners LLC have missed an opportunity to involve the public in the re-imagining of the beachfront structure.

Save the Dunes said it opposes the project due to what it says is a lack of transparency and stakeholder input. It asks the DNR and Pavilion Partners stop the project and set meetings to discuss details rather than rushing through a project "that clearly does not have broad public support at this time. * * *

The organization said the DNR should have held public meetings months ago, after receiving proposals and before signing a contract. It said the open house was crowded and there was no opportunity for meaningful conversation. Save the Dunes believes this has been a flawed process and has resulted in a flawed plan.

"I think it was clear looking at the crowd that was there last night they haven't achieved as much public input as they need and that's really all we're asking to do is to slow down," Barker said.

Barker said they are concerned about design of the banquet center, which is being built next to the pavilion, and also want to know more about green building aspects, light pollution and the prevention of bird collisions. She said the group is also concerned with the type of activities that may occur once the banquet center is built next to the pavilion and whether people will be "running up and down the dunes and causing erosion."

"We really want to be a part of a dialog because it's so much more than just a building," she said. "The public has so much interest in this property."

The story includes a copy of the only photo the ILB has seen of the proposed banquet center, intended to adjoin the historic pavilion.

A long April 3rd story in the Chicago Tribune headed "Funding, experience handcuffed other pavilion bidder," reports:

While state officials with the Indiana Department of Natural Resources said 18 groups asked for the specs on the pavilion renovation, only two – Dunes Pavilion Renaissance and Pavilion Partners, LLC – turned in proposals. With plans to build an adjacent banquet and conference facility, Pavilion Partners won the project.

"The one thing that really stuck out in my mind was that Mr. (Chuck) Williams had done this before with a historic building in Valparaiso," said Dan Bortner, director of the division of parks and reservoirs with the Indiana Department of Natural Resources, referring to the Valparaiso businessman who is one of the key players in Pavilion Partners.

This Apil 6th Tribune story is headed "Dunes pavilion plan gets public viewing." A quote:
"My main concern is the lack of transparency with this," Desi Robertson said, holding a petition against the banquet facility. "The fact that none of us knew this was coming is outrageous."

Though she supports plans to renovate the pavilion, she called the planned 30,000-square-foot banquet and conference center planned adjacent to and east of the pavilion a "big, shiny eyesore."

"I think the dunes are pretty as they are," she said, adding the structure's glass could confuse migrating birds, and it's being built on public space. "It shouldn't be for private profit."

The Porter County chapter of the Izaak Walton League has raised similar concerns about opening a public beach up for private profit.

In a media briefing before the open house, representatives from the Indiana Department of Natural Resources and Pavilion Partners LLC, which is handling the project, answered questions about the perceived secrecy around the plans and said they hoped the event would educate the public about the planned structure.

Renovation work on the interior of the pavilion started in February. * * *

The DNR has similar public-private partnerships for marinas at its reservoirs and for hotels at two state parks, Bortner said, adding 70 percent of the department's budget comes from user fees, with the remainder from the legislature, and the state is always looking for ways to increase revenue and decrease its reliance on state funds.

Ellen Adams, of Jackson Township, was trying to fight the crowd to get to display tables and have her questions answered.

"I'm concerned about why it was so secretive and the impact it's going to have on the beach," she said. She also was concerned about access to the park in heavy traffic when events are held at the banquet facility. "It's hard enough in the summer to get in."

An April 10th Tribune story is headed "2nd Dunes pavilion meeting Wednesday."

[More] The Chesterton Tribune (Chesterton is "The Gateway to the Dunes" and the ILB's home town) has an April 10th story announcing "DNR sets public meeting on Dunes State Park pavilion project Wednesday, April 15 at Chesterton Middle School." The story includes links to earlier Chesterton Tribune news stories. See especially these April 7th stories from Luke Nevers, which are the most probing the ILB has seen so far. (This is the second of them.)

Posted by Marcia Oddi on April 12, 2015 02:14 PM
Posted to Environment | Indiana Government

Courts - "The Case Against Gay Marriage: Top Law Firms Won’t Touch It"

From Adam Liptak's law column this weekend in the NY Times:

WASHINGTON — The stacks of Supreme Court briefs filed on both sides of the same-sex marriage cases to be heard this month are roughly the same height. But they are nonetheless lopsided: There are no major law firms urging the justices to rule against gay marriage.

Leading law firms are willing to represent tobacco companies accused of lying about their deadly products, factories that spew pollution, and corporations said to be complicit in torture and murder abroad. But standing up for traditional marriage has turned out to be too much for the elite bar. The arguments have been left to members of lower-profile firms.

In dozens of interviews, lawyers and law professors said the imbalance in legal firepower in the same-sex marriage cases resulted from a conviction among many lawyers that opposition to such unions is bigotry akin to racism. But there were economic calculations, too. Law firms that defend traditional marriage may lose clients and find themselves at a disadvantage in hiring new lawyers.

“Firms are trying to recruit the best talent from the best law schools,” said Dale Carpenter, a law professor at the University of Minnesota, “and the overwhelming majority of them want to work in a community of respect and diversity.”

ILB: Readers will recall this April 7th post "AG Zoeller will not file amicus brief in historic SSM case now pending before SCOTUS", that concluded with a note on Attorney General Zoeller's past participation, as lead author of anti-gay marriage amicus curie briefs, in numerous same sex marriage challenges across the county where the State of Indiana was not a party.

Posted by Marcia Oddi on April 12, 2015 01:31 PM
Posted to Courts in general

Ind. Gov't. - "OWI or reckless driving charge? It may depend on county where you're caught"

NWI Times reporter Ed Bierschenk analyzed drunken driving convictions in Lake, Porter and LaPorte counties for 2014. A three-day special report lays out his findings.

  • Sunday - The bulk of Lake County's drunken driving cases are pleaded down to reckless driving. In Porter County, which has fewer criminal cases overall, few cases are pleaded down, while a new prosecutor in LaPorte County promises changes that will align with Porter's practices. The Times also looks at the human cost of driving while under the influence.

  • Monday - Both Porter and LaPorte counties are now among 51 of Indiana's 92 counties that are part of the Odyssey Case Management System for court records, which enables judges to quickly assess from the bench whether a drunken-driving defendant has any prior OWI cases in other counties. Lake County is not part of Odyssey -- yet.

  • Tuesday - A late change in a state law that took effect this year has caused Mothers Against Drunk Driving and other judges and officials to withdraw their support of the law, which they claim does little to stem drunken driving.
Today's story begins:
The majority of operating while intoxicated cases filed in Lake County courts in 2014 have been reduced to reckless driving, according to an analysis conducted by The Times.

The numbers are far different in Porter County, where only a handful of operating while intoxicated cases were reduced to a lesser charge.

Drunken driving goes by different terms, including driving under the influence. Indiana, like Wisconsin, uses the term operating while intoxicated, called OWI.

For years, Lake County has been known as a place where drunken driving cases are routinely pleaded down to reckless driving charges. The practice, opposed by organizations such as Mothers Against Drunk Driving, is still seen by Lake County prosecutors as a reasonable way to move a case through a crowded court system over the years.

Lake County Prosecutor Bernard Carter said the plea deals to reckless driving still resulted in convictions of these people for a serious traffic offense. He said if his office did not reduce most drunken driving cases to reckless driving charges, the county would see a large-scale dismissal of cases -- at least in the short term.

Lake County prosecutors, like those in other counties, don't often go to trial on the cases. Still, in Porter and LaPorte counties, the charges are rarely reduced.

The Times recently reviewed 2014 operating-while-intoxicated cases in Lake, Porter and LaPorte counties, and a number of those cases still need to be resolved. In Porter and LaPorte counties, the statistics include boating under the influence and driving under the influence of alcohol and/or drugs; Lake County's number only includes county courts and not some city and town courts.

Posted by Marcia Oddi on April 12, 2015 12:57 PM
Posted to Indiana Government

Friday, April 10, 2015

Ind. Decisions - Court of Appeals issues 3 opinion(s) today (and 5 NFP memorandum decisions)

For publication opinions today (3):

In M. Shane Faulkinbury, by his next friends/guardians John M. Faulkinbury and Olivia J. Faulkinbury v. Michael Broshears and BAM Outdoor, Inc., a 21-page opinion, Judge Kirsch writes:

On appeal, Guardians contend that the newly discovered evidence creates a genuine issue of material fact that precludes a grant of summary judgment in favor of BAM as to both the tort claim and the counterclaim. Additionally, this newly discovered evidence shows that Guardians’ tort claim was not frivolous, and as such, the trial court erred in granting attorney fees to BAM upon such a finding. For this reason, Guardians argue that the trial court erred in denying their motion to correct error pursuant to Trial Rule 59(A)(1), in which they prayed for the trial court to vacate its orders in favor of BAM. Appellant’s App. at 27. We need only address one dispositive issue, whether the trial court erred in denying Guardians’ Trial Rule 59(A)(1) motion to correct error on the basis of newly discovered evidence. * * *

BAM contends that under our Supreme Court’s reasoning in Mitchell, the trial court was precluded from looking at Guardians’ three affidavits containing the newly discovered evidence. We disagree. * * *

In the absence of the trial court having made a determination that Shane is incompetent to testify, Shane’s affidavit is uncontested and worthy of credit, and at trial, he will have the opportunity to testify as to his version of the events. The factfinder will have the opportunity to weigh the evidence and judge Shane’s credibility. In light of this newly discovered evidence, we believe that Shane should have his day in court. Considering the above factors, we find that the trial court abused its discretion in denying Guardians’ motion to correct error. Reversed and remanded.

In Johnathon I. Carter v. State of Indiana , a 27-page opinion, Judge Kirsch writes:
Following a jury trial, Johnathon I. Carter was convicted of three counts of Class A felony child molesting2 and two counts of Class C felony child molesting. He raises four issues on appeal that we restate as:

I. Whether the manner in which the jury was instructed concerning the requirement of jury unanimity constituted fundamental error;
II. Whether the trial court abused its discretion in admitting certain expert testimony;
III. Whether the State presented sufficient evidence to convict Carter;
IV. Whether Carter’s ninety-eight-year sentence is inappropriate in light of the nature of the offense and the character of the offender.

We affirm the convictions, revise the sentence, and remand with instructions.

In Jeremy Middleton v. State of Indiana , a 6-page opinion, Judge May writes:
Jeremy Middleton challenges the sufficiency of evidence support his conviction of Class D felony theft. We reverse. * * *

Middleton’s charging information pertaining to the theft stated:

On September 19, 2013, in Clark County, State of Indiana, JEREMY LEE MIDDLETON did knowingly or intentionally exert unauthorized control over a range-finder of Rural King, with intent to deprive Rural King of any part of its value or use.
As to this charge, the testimony of Mundy that was offered for the truth of the matter asserted was that she followed Middleton through the store; she saw him cutting on a security device, but she could not see the product he was attempting to extricate; and she followed him outside. The testimony of Burdin and Watkins that was admitted for the truth of the matter asserted related only to Middleton’s actions after leaving the store.

With the removal of the hearsay testimony, which the jury was admonished was “not . . . offer[ed] . . . for the truth of the matter asserted, simply, so the Jury can understand what she did,” and “not saying anything for the truth of the matter asserted,” the evidence presented against Middleton as to the charge of theft amounts to Mundy’s statements that she followed him, she saw him using a knife on a security device, and he left the store. Although Mundy saw Middleton using a knife on something, she was unable to identify the product. No other evidence was presented to prove Middleton took a range-finder. That is not sufficient evidence from which a reasonable jury could infer Middleton knowingly or intentionally exerted unauthorized control over a range-finder. * * *

The evidence was insufficient to support Middleton’s conviction of Class D felony theft; therefore, we reverse.

NFP civil decisions today (4):

In re the Matter of: B.S., D.S. v. K.S. and M.S. (mem. dec.)

Victoriano Medina-Noralez v. Sally Medina (mem. dec.)

Moussa Dahab v. Massadjitte Abdelkerim (mem. dec.)

In Re the Marriage of: J.D.S. v. B.S. (mem. dec.)

NFP criminal decisions today (1):

Malcolm M. Pettis v. State of Indiana (mem. dec.)

Posted by Marcia Oddi on April 10, 2015 11:13 AM
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Tax Court opinion filed April 9th, re placing documents under seal

In ESPN Productions, Inc. v. Indiana Department of State Revenue, a 10-page opinion, Judge Wentworth writes:

ESPN Productions, Inc. has requested the Court to place certain documents within the judicial record under seal so they cannot be accessed by the general public. Being duly advised in the matter, the Court grants that request in part and denies it in part. * * *

CONCLUSION. The tax returns, Production Services Agreement, and Cable Television License Agreements submitted by ESPN Productions as designated evidence in support of its motion for summary judgment are protected from public disclosure under both APRA and Administrative Rule 9(G)(2). That protection does not extend, however, to ESPN Productions’ Supplement to Protest.

Accordingly, the Clerk of the Tax Court is ORDERED to return any green copies of the Supplement to Protest (Pet’r Des’g Evid., App. B., Ex. 14) to ESPN Productions. ESPN Productions may, if it so chooses, resubmit the Supplement to Protest as a public access document.

Posted by Marcia Oddi on April 10, 2015 11:00 AM
Posted to Ind. Tax Ct. Decisions

Courts - "Some 'Teachable' 1st Amendment Moments in the SCOTUS Oral Argument About Confederate Flags on Texas License Plates"

This is a valuable article by constitutional scholar Vikram David Amar today in Verdict. He begins:

In today’s column, I analyze the Supreme Court oral argument held a few weeks ago in Walker v. Texas Division, Sons of Confederate Veterans, a case involving the First Amendment and Texas’s regulation of license plates. Motor vehicles registered in the State of Texas must display a state-sanctioned license plate. Most vehicles use a standard-issue Texas plate that has a simple no-frills design and displays a random series of letters and numbers. Texas, like many other states, also permits individuals to submit personalized, or vanity, plates in which the numbers and letters on the plate form a message (such as “HOTSTUFF,” a hypothetical example Justice Scalia used at oral argument).

In addition, Texas permits what are called “specialty” license plates, in which the overall design of the plate (but not the sequence of numbers and letters), is custom-made and might contain symbols, colors and other visual matter that is more elaborate than the relatively plain design of the standard-issue plates. Specialty designs may be adopted by the Texas legislature or proposed by private individuals or organizations. Specialty plate designs that come from outside the legislature must be approved (as must personalized vanity plates) by the Texas Department of Motor Vehicles Board, and the Board by law “may refuse to create a new specialty license plate if the design might be offensive to any member of the public” (a term that Texas authorities construe as meaning offensive to a significant segment of the public.) At least some specialized designs, once approved, can be used by members of the general public. As of a month ago, there were about 450 specialty designs that had been approved in Texas, around 250 of which are usable by the public. Although the majority of license plates in Texas are the plain-vanilla non-specialty plates, it is not uncommon on the Texas roadways to see license plates that make use of one of the approved specialty designs.

ILB: All that should sound familiar; Indiana has had many issues with license plates. A quick search turned up many posts involving legal disputes about "OINK' plates, Indiana Youth Group plates, "GOD" plates, etc.

Posted by Marcia Oddi on April 10, 2015 10:43 AM
Posted to Courts in general | Indiana Government

Courts - Wisconsin Chief Justice resists efforts to remove her from position as CJ

On Dec. 22, 2014, the ILB quoted from a Milwaukee Journal Sentinel story about upcoming efforts by the Wisconsin legislature to force out Supreme Court Chief Justice Shirley Abrahamson, 81.

Governing reports today in a long story by Patrick Marley that begins:

Voters on Tuesday approved letting state Supreme Court justices choose who will lead them -- a change to a 126-year-old system that is likely to result in the demotion of Chief Justice Shirley Abrahamson.

With 97% of precincts reporting, the proposed amendment to the state constitution had 53% "yes" votes and 47% "no" votes. * * *

Since 1889, the job of chief justice has gone to the most senior member of the Supreme Court. The chief justice serves as the administrative head of the state's judiciary and sets agendas for the high court.

Opponents of the proposed constitutional amendment portrayed it as a proxy fight over Abrahamson, a liberal leading a court controlled by conservatives. Supporters of the measure denied that, saying the measure was aimed at making the court more democratic and the chief justice more accountable to other members of the court. * * *

Wisconsin is one of seven states that determine who is chief justice based on seniority, while 22 others have court members choose, according to the National Center for State Courts. In the remaining states, the chief justice is appointed or directly elected by voters. [ILB: In Indiana, the CJ is selected from the current Court members, every 6 years, by the Judicial Nominating Commission.]

To get the question on the ballot in Wisconsin, Republican lawmakers had to approve the proposal in 2013 and again this year. The decision by voters is binding.

The amendment will allow justices to elect one of the court's seven members to serve as chief justice for a two-year term. It will be left to the court to decide how to conduct the elections. * * *

Legal observers have said a court challenge to the amendment is possible, in part because Abrahamson could lose pay if she were no longer chief justice.

A story, also by Patrick Marley, in the Journal-Sentinel yesterday, reported:
A federal judge declined Thursday to put an immediate halt on an amendment to the state constitution adopted by voters this week that would allow the members of the Wisconsin Supreme Court to choose the chief justice.

The job of chief justice has automatically gone to the most senior member of the Supreme Court for the last 126 years. Chief Justice Shirley Abrahamson and her supporters sued to keep her position as the court's leader on Wednesday, a day after voters approved changing how the chief justice is selected.

She argues the provision can't go into effect until her current term on the court ends in 2019.

U.S. District Judge James Peterson on Thursday denied Abrahamson's motion to issue a temporary restraining order that would keep the amendment from going into place.

In a four-page order, he wrote it was inappropriate to do that without hearing from the defendants in the case, particularly when the measure wouldn't go into effect until after Tuesday's vote is certified on April 29.

In effect, Peterson wrote there was no need to immediately rule on the issue because Abrahamson won't suffer any harm in the short term. He is to hear from all sides on April 21.

"I have made no determination on the merits of the plaintiffs' case," Peterson wrote.

The situation leaves Abrahamson with a chance to try to block the amendment from taking effect while she pursues her case. * * *

Abrahamson — who has been on the court since 1976 and served as chief justice since 1996 — contends in her lawsuit that she should remain chief justice until 2019, when her current term on the court ends.

She was last elected in 2009 and she said there was no reason at the time for voters to think she might not remain chief justice for her full term.

Part of Abrahamson's argument is that she would be deprived of $8,000 in pay a year if she were no longer chief justice. The chief justice makes $155,403 and the other justices make $147,403.

ILB: The CJ's claim may be based on a Wisconsin constitutional provision that is similar to Indiana's Art. 7, sec. 19, which says in essence: Judges shall receive "a compensation which shall not be diminished during their continuance in office."

Posted by Marcia Oddi on April 10, 2015 10:20 AM
Posted to Courts in general

Courts - "The Clooneys dine with Supreme Court Justice Sotomayor"

Page Six story by Emily Smith, with photos! Who could resist?

H/t How Appealing

Posted by Marcia Oddi on April 10, 2015 10:16 AM
Posted to Courts in general

Ind. Courts - More on "ESPN and Notre Dame argue in court about police records"

Updating this ILB post from April 2nd, here is another take on:

... a case to determine if Notre Dame Security Police (NDSP) violated Indiana’s Access to Public Records Act (APRA). The unresolved issue at the crux of the case is whether or not the law considers NDSP a private agency.
The April 9th story here, from the NDSM Observer, is reported by Katie Galioto.

Posted by Marcia Oddi on April 10, 2015 10:09 AM
Posted to Indiana Courts

Ind. Courts - "Prosecutor orders Elkhart Truth reporter to surrender notes and recordings"

Tha is the headline to this story this morning in the Elkhart Truth, reported by Michelle Sokol. Some quotes from the long story:

An Elkhart Truth reporter has been ordered by the Elkhart County Prosecutor’s Office to appear for testimony and surrender interview notes and recordings related to a story she wrote in late March about a felony murder investigation.

Emily Pfund, who covers crime and courts for the newspaper, was issued a subpoena Wednesday, April 8, from Vicki Becker, the chief deputy prosecuting attorney.

The notice, filed in Elkhart Circuit Court, commands Pfund to appear at an upcoming hearing and produce “any and all written notes and/or memorabilia, and audio and/or video recordings ... relating to any contacts with one Freddie Rhodes, or information that has come from Freddie Rhodes or is attributed to have come from Freddie Rhodes.”

The Elkhart Truth will fight the subpoena. * * *

Rhodes, 19, was charged with felony murder in September 2014 after an alleged attempted drug robbery in which 18-year-old Dre Tarrious Rodgers was shot and killed. Rhodes, who is not being accused of pulling the trigger, was arrested about two hours after Rodgers died.

Part of the evidence prosecutors used to formally accuse Rhodes came from his statements the night of his arrest, according to court documents.

Those statements were the focus of an article by Pfund published March 22. In an interview at the Elkhart County Jail, Rhodes shared his account of the night of his arrest with Pfund. Pfund also interviewed Rhodes’ mother, Wanda Malone-Shorter, about the arrest. * * *

The hearing to suppress that evidence is scheduled for Monday, April 13. It’s the same hearing where Pfund has been commanded to appear and hand over notes and recordings.

The act of subpoenaing reporters is rare in Indiana, said Steve Key, executive director and general counsel for the Hoosier State Press Association.

The Indiana law granting journalist’s privilege, or shield law, is strong and protects reporters from being forced to reveal information about their sources, Key said.

The law states reporters “shall not be compelled to disclose in any legal proceedings or elsewhere the source of any information procured or obtained in the course of the person’s employment or representation of a newspaper.”

Posted by Marcia Oddi on April 10, 2015 09:49 AM
Posted to Indiana Courts

Thursday, April 09, 2015

Ind. Gov't. - "The ACLU of Indiana's Next Steps on RFRA"

Jane Henegar, Executive Director, has put out this news release today. Some quotes:

What a difference a week makes. Last week, we and others were engaged in negotiations to "fix" Indiana's just-passed Religious Freedom Restoration Act, or RFRA. Today, we can say that while the situation in our state is far from perfect, we ended up in a place that is both historic and significant. * * *

For the first time in our history, Indiana now recognizes protections based on sexual orientation and Jane Henegar webJane Henegargender identity — even if they currently exist in only a few local human rights ordinances. And the passage of RFRA here, and the resulting backlash, has brought about a startling transformation that has advanced the cause of LGBT equality all across the country. This tipping point has helped defeat similar proposals in Georgia and Nevada, pared back the legislation in Arkansas, and dimmed prospects for passage of RFRAs in North Carolina and Michigan. Further, it has opened up the door for introducing LGBT non-discrimination protections not only in Indiana, but in Arizona, Florida, Ohio and Pennsylvania.

Though we have made a major step forward, we have more work to do. The ACLU of Indiana, along with our partners, is working diligently to change the status quo for all gay and transgender people in Indiana. We will push for legislation that extends statewide protections against discrimination on the basis of sexual orientation and gender identity — one of the common-sense provisions we requested, but did not receive, in the Fairness for all Hoosiers Act that we proposed last week.

Posted by Marcia Oddi on April 9, 2015 03:08 PM
Posted to Indiana Government

Ind. Courts - Some traveling COA oral arguments will now be captured on video

From a news release:

INDIANAPOLIS – The Court of Appeals is now recording selected oral arguments conducted at high schools, colleges and other venues for archived viewing on the Court’s oral arguments webpage. Live streaming is not currently available.

The first publicly available recording was conducted Feb. 17 at Wabash College and posted to the court’s website Feb. 18. The next scheduled recording will occur April 16 at the Merrillville Branch, Lake County Public Library, in Merrillville.

The Court routinely webcasts and records oral arguments in its Statehouse courtroom, which is equipped with a sophisticated digital recording system. Until now, however, the Court lacked portable equipment to record Appeals on Wheels arguments, which the Court conducts about 30 times per year across Indiana.

Posted by Marcia Oddi on April 9, 2015 03:01 PM
Posted to Indiana Courts

Ind. Gov't. - "How local press could have influenced the religious freedom law" Columbia Journalism Review takes on the local press

That is the headline to a story that is roiling the local press, at least in Twitter feeds; it appeared in the Columbia Journalism Review yesterday. The author was Jackie Spinner. Some quotes:

Indeed, both the national media and local press extensively—and sometimes sensationally—covered the possible impact of the law after it was passed. Once it got going, the Indiana media, led by the Indianapolis Star, gauged local reaction, talked to legal experts, and dissected the governor’s claim that law was just like one that exists at the federal level, an erroneous assertion he made repeatedly, including in a piece for the Wall Street Journal. The Star even published a frontpage editorial urging state leaders to fix the law.

But the story was slow to get traction among the Indiana press until it was almost approved, meaning reporters were scrambling to cover backlash on a story happening on home territory. By the time the press did pick up on the story—and the opposition to the law—it was really too late to influence the debate or even to give readers and viewers a clear idea of what the law might do.

“What is disappointing in all of this is that they took this stance after all the business leaders and huge demonstrations,” said Dennis Ryerson, editor of the Star from 2003 to 2012 “They kind of followed the crowd rather than leading the crowd. I wish they would have done it a lot sooner when legislature was considering all this.”

The bigger story of the legislative session in local outlets were cuts in education spending and Pence’s successful effort to remove the state’s school superintendent as head of the Board of Education.

Read the story yourself, there is much of interest.

The ILB has looked back at earlier posts and found that the IndyStar did have an Oct. 6, 2014 story headed "Debate over religious freedom looms ahead," that began:

Although many observers hailed Monday's U.S. Supreme Court decision on gay marriage as a boon for equality, debates and legal battles over religious freedom and discrimination based on sexuality remain simmering in Indiana and nationwide.

Socially conservative advocacy groups such as the American Family Association of Indiana and the Indiana Family Institute now plan to focus lobbying efforts on legislation that would protect religious organizations, nonprofit groups and businesses that deny services to gay couples based on religious grounds. Curt Smith, president of the Indiana Family Institute, said his organization already has spoken with three lawmakers about possibly creating legislation to protect religious liberty in the marketplace.

And the ILB did a compilation of stories with links on Feb. 2, 2015 which is worth checking; it began:
There have been stories about this topic for weeks, but two bills on "religious freedom" have now been set for hearing in committee.
The ILB has a very long list of posts on "RFRA", both before and after it was signed into law by Governor Pence.

It looks to me like the concern about the impact of RFRA was there all along, this bill wasn't overlooked by any means. But it seemed to be on the super-majority fast track, unstoppable, and indeed it was, until after the fact.

There was plenty of news coverage. Look at this post from March 19th, headed "RFRA: 'The lawyers will all get some really sweet lake homes out of this' writes one columnist." And this post from March 16th, before the House committee hearing on SB 101. Or this post from Feb. 10, quoting a Star story on the initial public hearing on SB 101, in Senate Judiciary.

SB 101 was signed into law by the Governor on March 26, a Thursday. The following day the ILB had this post titled " Indiana's RFRA and the perception of intolerance," (with a number of links) that began:

The ILB has received questions about how the new RFRA would work in practice. The ILB has asked several respected attorneys the same questions. The answer: No one is really willing, or able, to give a conclusive answer. It all depends on whether there are challenges to, or under, the new law, how those challenges manifest themselves, and what the Indiana courts decide.

Meanwhile, the very act of passing the law has labeled Indiana nationally as intolerant. * * *

It does not help that our Governor, who announced earlier this week that he was eager to sign the bill into law, held the signing ceremony in private and won't reveal who attended. [Here is a photo.]

Posted by Marcia Oddi on April 9, 2015 11:10 AM
Posted to Indiana Government

Ind. Decisions - Court of Appeals issues 1 opinion(s) today (and 3 NFP memorandum decisions)

For publication opinions today (1):

In Terrence Strong v. State of Indiana, a 15-page, 2-1 opinion, Judge Robb writes:

Following a bench trial, Terrence Strong was convicted of operating a vehicle while intoxicated (“OWI”), a Class A misdemeanor, and sentenced to 365 days, all but ninety days suspended to probation. He was also found to have committed the traffic infraction of failing to stop at a stop sign, for which a fine was imposed. Strong did not file a notice of appeal within thirty days of the final judgment in his case, but he was later granted permission to file a belated notice of appeal. Strong now raises the sole issue of whether his traffic infraction and fine must be vacated because he was subjected to double jeopardy in violation of the Indiana Constitution. The State cross-appeals, contending the trial court improperly granted Strong’s motion to file a belated notice of appeal. Concluding the trial court did not abuse its discretion in allowing Strong to file a belated notice of appeal but that Strong was not subject to double jeopardy, we affirm. * * *

For the foregoing reasons, we hold the trial court’s decision to grant Strong permission to file a belated notice of appeal was not an abuse of discretion. We further reject the State’s invitation to dismiss and instead consider Strong’s appeal on its merits. * * *

Strong contends there is a reasonable possibility that evidence of a single act—failure to stop at a stop sign—was used to prove that he committed a traffic infraction and also to establish endangerment supporting the elevation of the OWI offense from a Class C misdemeanor to a Class A misdemeanor. * * *

Thus, Strong’s double jeopardy argument fails because the actual evidence is not the same.

Conclusion, The trial court did not abuse its discretion in granting Strong’s motion(s) to file a belated notice of appeal and Strong properly proceeded under Post-Conviction Rule 2. However, Strong’s OWI conviction and traffic infraction do not constitute the same offense for Indiana double jeopardy purposes, and Strong is therefore not entitled to the relief he seeks. His OWI conviction and sentence and his traffic infraction and fine are affirmed.

Brown, J., concurs.

Bailey, J., dissents with opinion. [which begins, on p. 13] I agree with the State that the Indiana Post-Conviction rules do not entitle Strong to challenge a nominal fine on belated appeal. See Reed v. State, 856 N.E.2d 1189, 1193 (Ind. 2006) (observing that post-conviction proceedings do not afford a petitioner a “super-appeal” and that the post-conviction rules contemplate a narrow remedy for subsequent collateral challenges to convictions). In my view, dismissal is appropriate. I therefore respectfully dissent. * * *

As the majority has observed, the trial court was unaware of the issue upon which the post-conviction petition would proceed. But when presented to this Court, it is clear that the only issue upon which the petitioner can be afforded relief involves a civil infraction. Broadening the post-conviction rules by judicial fiat will foster belated collateral challenges to any infraction, undermine the principle of finality, and increase strain upon limited judicial resources.Court, it is clear that the only issue upon which the petitioner can be afforded relief involves a civil infraction. Broadening the post-conviction rules by judicial fiat will foster belated collateral challenges to any infraction, undermine the principle of finality, and increase strain upon limited judicial resources. Accordingly, I dissent.

NFP civil decisions today (2):

In the Matter of the Termination of the Parent-Child Relationship of: A.R. & T.R. and B.R., & A.B. v. The Ind. Dept. of Child Services (mem. dec.)

Lyn Magee v. Brent Welke (mem. dec.)

NFP criminal decisions today (1):

Todd Stewart v. State of Indiana (mem. dec.)

Posted by Marcia Oddi on April 9, 2015 10:55 AM
Posted to Ind. App.Ct. Decisions

Ind. Decisions - "COA deals setback to $1.2 billion NIPSCO modernization plan"

Yesterday's Court of Appeals ruling in NIPSCO Industrial Group, and, Indiana Office of Utility Consumer Counselor v. Northern Indiana Public Service Company, et al. is the subject of a story today by Keith Benman in the NWI Times. Some quotes:

The Indiana Court of Appeals on Wednesday dealt a setback to NIPSCO's $1.2 billion electric modernization plan, issuing a ruling that could affect similar plans by other utilities.

The court ruled the Indiana Utility Regulatory Commission erred in several respects in its Feb. 17, 2014 orders approving NIPSCO's plan. It affirmed some parts of the IURC's orders, including its interpretation of a 2 percent cap, which is a key victory for the utility.

In addition to authorizing the $1.2 billion in improvements in its February orders, the IURC approved customer charges to pay for them. Those come in the form of yearly rate increases that will total 4.9 percent by 2020, according to NIPSCO estimates. * * *

The IURC's February 2014 order had been challenged by some of NIPSCO's largest industrial customers as well as the Indiana Office of Utility Consumer Counselor.

NIPSCO brought the case for its electric modernization plan before the IURC under legislation passed by the General Assembly in 2013. It was the first utility in the state to do so.

The industrial group challenging the IURC's orders before the Court of Appeals was composed of BP Products North America, Praxair, USG Corp., and ArcelorMittal USA.

"We are pleased with the Court of Appeals decision finding NIPSCO's plan really failed to follow the requirements of the statute," said Jennifer Terry, an attorney with Lewis & Kappes, the law firm representing the industrial group.

Terry said it is possible the industrial group could ask the IURC to order NIPSCO to refund customer charges already collected under the IURC's orders.

The industrial customers have long contended the utility should be more specific about projects it intends to undertake. The court sided with them, ruling the IURC was not provided with enough detail on the projects to approve the special charges to pay for them.

There is more of interest in the story.

Posted by Marcia Oddi on April 9, 2015 10:16 AM
Posted to Ind. App.Ct. Decisions

Ind. Gov't. - Still more on bill proposing changes to the 2009 mortgage settlement conference law

Updating this most recent ILB post on SB 415, from March 13th, John Russell of the Indianapolis Star reports today:

A program that has helped thousands of distressed Hoosiers save their houses will remain in place after all.

An Indiana House panel has voted to kill a controversial amendment that would have sharply curtailed the loan-modification program. * * *

The Indiana Mortgage Bankers Association had pushed hard for the amendment, saying Indiana is one of the nation's slowest states in completing foreclosures, or about 610 days on average.

The controversial amendment would have exempted large banks, which account for the vast majority of mortgages issued in Indiana, from complying with the state-required mortgage settlement conferences.

The Mortgage Bankers Association argued that homeowners are already protected by a federal law, the Dodd-Frank Reform and Consumer Protection Act, that went into effect a year after the Indiana program. The bankers said it was pointless, expensive and time-consuming to have two separate laws, one state and one federal, pertaining to consumer rights during foreclosures.

But housing advocates and consumer groups said the federal law did not offer as many protections and did not include court-supervised settlement conferences.

Indiana Attorney General Greg Zoeller pushed hard in recent weeks to kill the controversial amendment and keep the state program, saying homeowners needed the protection. He testified last week before the House Local Government Committee to keep the law intact.

The controversial amendment supported by the bankers was tacked onto Senate Bill 415, a bill that deals with the tax sale process and a registry for vacant and abandoned properties. It sailed through the Senate on a 50-0 vote.

The House Local Government Committee voted April 2 to kill the amendment and keep the state program as is. The bill is likely to be presented to the House in coming days.

Sen. James Merritt, R-Indianapolis, the author of the bill, said he did not fight to keep the controversial amendment and would concur with the House action when the bill returns to the Senate.

Posted by Marcia Oddi on April 9, 2015 10:03 AM
Posted to Indiana Government

Ind. Gov't. - Proposed Court budget from Senate Appropriations Committee [Updated]

Here, from the digest of Proposed Amendment #43 to HB 1001, is a description of the proposed appropriations to the judicial branch, from the Senate Appropriations Committee this morning. This is not necessarily the final word, after adoption by the Senate, HB 1001 normally goes to Conference Committee.

Provides that a problem solving court that is a veteran's court may assume jurisdiction over a veteran who: (1) meets certain eligibility requirements; and (2) is referred to the problem solving court by a court in another jurisdiction.

Specifies that a court may consider as a mitigating factor that a person convicted of a crime has posttraumatic stress disorder, traumatic brain injury, or a post-concussive brain injury. Provides that if a court suspends a sentence and orders probation for such a person, the court may require the person to receive treatment for the person's injuries.

Provides that the document storage fee is $5 after June 30, 2015, and before July 1, 2017, and $2 after June 30, 2017.

Provides that after June 30, 2015, and before July 1, 2017, the automated record keeping fee collected for all civil, criminal, infraction, and ordinance violation actions is $19. Provides that the automated record keeping fee is $5 after June 30, 2017.

See SECTIONS 225-226 (p. 213-224).

The main approproation provisions for Judicial begin on p. 11 of the document.

[Updated] The automated recordkeeping fee increase from $5 to $19 is located in SECTION 207, page 193.

Posted by Marcia Oddi on April 9, 2015 09:29 AM
Posted to Indiana Government

Wednesday, April 08, 2015

Ind. Decisions - Supreme Court decides two today

In Donald W. Myers, III. v. State of Indiana, a 20-page, 4-1 opinion, Justice David writes:

Donald W. Myers, III, has a history of mental illness, and has been diagnosed with paranoid schizophrenia. Unprovoked, Myers fired a shotgun several times at multiple vehicles, including a police cruiser. Myers was ultimately convicted on four counts of attempted murder. The jury found Myers guilty but mentally ill. Myers claims that no reasonable jury could have reached this conclusion and that he should have been found not guilty by reason of insanity. Myers also asserts that any reference during trial to his request for an attorney and refusal to speak to the police after the incident violated his constitutional right to due process.

We hold that there was no due process violation. Additionally, we seek to emphasize the great adherence our judicial system affords to the right of a trial by jury and the verdicts reached by those juries. * * * Having completed our review, we affirm the jury’s verdict finding Myers guilty but mentally ill. * * *

There was sufficient evidence for a jury to draw a reasonable inference that the defendant was able to appreciate the wrongfulness of his conduct at the time of the offense. The admission of testimony regarding Myers’ convoluted request for counsel and refusal to speak to police did not constitute a due process violation. In addition, Myers’ sentence is not inappropriate given the nature of the offense and his character, nor was it inappropriate for the trial court to order his sentences to be served consecutively. Therefore, we affirm Myers’ convictions of guilty but mentally ill, and affirm his sentence of one hundred and twenty years for four counts of Class A felony attempted murder.

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

Rucker, J., dissents with separate opinion. [which begins, at p. 18] In Galloway v. State [ILB: which was a 3-2 opinion], this Court evaluated the circumstances under which a defendant is entitled to a verdict of not guilty by reason of insanity despite a fact-finder’s verdict to the contrary. See 938 N.E.2d 699 (Ind. 2010). Because today’s opinion retreats from and thus undermines Galloway, I respectfully dissent. * * *

Because I can discern no appreciable difference between the facts in this case and those in Galloway, I agree with my colleagues on the Court of Appeals that “the jury clearly erred in rejecting Myers’s insanity defense.” Myers v. State, No. 76A03-1305-CR-173, 2014 WL 1478844, at *10 (Ind. Ct. App. Apr. 14, 2014). Accordingly I would reverse Myers’ four Class A felony attempted murder convictions[1]
[1] I also note the observations of my Court of Appeals colleagues: “Myers has been and remains institutionalized in a secure facility within Indiana’s mental health system. Unless new psychotropic medications sufficient to treat his serious mental illness are developed, he will likely remain institutionalized for the rest of his life.” Myers, 2014 WL 1478844, at *5 n.1.

In Cohen & Malad, LLP v. John P. Daly, Jr., Golitko & Daly, P.C., and Golitko Legal Group, P.C., a 2-page, 5-0, per curiam decision in a fee dispute between two law firms, the Court concludes:

Absent agreement otherwise, “a lawyer retained under a contingent fee contract but discharged prior to the contingency is entitled to recover the value of services rendered if there is a subsequent settlement or award[,]” and in that case, “the fee is to be measured by the proportion of the total fee equal to the contribution of the discharged lawyer’s efforts to the ultimate result[.]” Galanis v. Lyons & Truitt, 715 N.E.2d 858, 860 (Ind. 1999). The trial court’s findings of fact and conclusions of law do not acknowledge Galanis or apply its standards. Accordingly, we reverse and remand with instructions to determine, in accordance with Galanis, what proportional contributions toward the results in the cases at issue were made by attorneys working for C & M, and to enter a corresponding judgment in C & M’s favor. We summarily affirm the part of the Court of Appeals opinion addressing whether C & M should have sued its former clients to recover attorney fees from them. See Ind. Appellate Rule 58(A)(2).

Posted by Marcia Oddi on April 8, 2015 03:05 PM
Posted to Ind. Sup.Ct. Decisions

Ind. Decisions - Court of Appeals issues 4 opinion(s) today (and 9 NFP memorandum decisions)

For publication opinions today (4):

In Steven Matthies v. The First Presbyterian Church of Greensburg Indiana, INC., a 12-page, 2-1 opinion, Judge Friedlander writes:

Steven Matthies appeals from the grant of summary judgment in favor of The First Presbyterian Church of Greensburg Indiana, Inc. (First Presbyterian). * * *

We conclude that the trial court properly determined that review of the issues presented would have necessitated the court to interpret and apply religious doctrine or ecclesiastical law. The First Amendment requires civil courts to refrain from interfering in such matters. See McEnroy v. St. Meinrad Sch. of Theology, 713 N.E.2d 334. We therefore conclude that the trial court properly entered summary judgment in favor of First Presbyterian.

Kirsch, J., concurs.
Crone, J., concurs in part and dissents in part with separate opinion.

I agree with the majority that reviewing the issues presented by Matthies’s breach of contract claim would require us to interpret and apply religious doctrine or ecclesiastical law, which is prohibited under the First Amendment. Therefore, I concur in the affirmance of summary judgment in favor of First Presbyterian on that claim.

Respectfully, however, I do not believe that the First Amendment would preclude us (or the trial court or a jury) from considering Matthies’s claim for unpaid vacation wages under the Wage Claim Statute. That claim, in my opinion, simply requires a determination of whether or not there was any vacation time accrued as of the date of Matthies’s termination. If there was, I believe that claim could be viable regardless of the basis for his termination. Addressing that claim might involve resolving disputed facts, interpreting the Contract, and applying the Wage Claim Statute, but it would not involve interpreting or applying religious doctrine or ecclesiastical law. Consequently, I would reverse the grant of summary judgment in favor of First Presbyterian on
that claim.

In NIPSCO Industrial Group, and, Indiana Office of Utility Consumer Counselor v. Northern Indiana Public Service Company, et al., a 31-page opinion, Judge Barnes writes:
In this consolidated appeal, the Indiana Office of Utility Consumer Counselor (“OUCC”) and the NIPSCO Industrial Group (“Industrial Group”) appeal the decision of the Indiana Utility Regulatory Commission (“Commission”) regarding two petitions filed by Northern Indiana Public Service Company (“NIPSCO”) to establish increased rates under a new statute, Indiana Code Chapter 8-1-39. We affirm in part, reverse in part, and remand. * * *

We conclude that the Commission improperly approved NIPSCO’s seven-year plan under the TDSIC statute because it lacked detail regarding the proposed projects for years two through seven. We also conclude that the Commission improperly established a presumption of eligibility for the projects in years two through seven. However, we conclude that the Commission properly interpreted the two-percent cap language in the TDSIC statute, and we give deference to the Commission’s decision regarding the rate recovery of retired assets. Finally, we conclude that the Commission was within its discretion to adjust the rate allocation factors to remove non-firm load; however, the Commission exceeded its statutory authority when it adjusted the allocation factors based on transmission and distribution considerations. We affirm in part, reverse in part, and remand.

In 5200 Keystone Limited Realty, LLC v. Netherlands Insurance Comp., Consolidated Insurance Comp., and Indiana Insurance Comp, a 15-page opinion, Judges Barnes writes:
5200 Keystone Limited Realty, LLC (“KLR”) appeals the trial court’s grant of summary judgment in favor of Netherlands Insurance Company (“Netherlands”), Consolidated Insurance Company (“Consolidated”), and Indiana Insurance Company (“Indiana”) (collectively “the Insurers”). We affirm.

Issue. KLR raises several issues on appeal. We need only address one issue: whether the common law “known loss” doctrine precludes KLR’s action against the Insurers to compel them to provide a defense for KLR in an action brought by the Indiana Department of Environmental Management (“IDEM”) to remove pollution from land owned by KLR. * * *

Indiana has adopted the common law “known loss” doctrine as applicable to all third-party liability insurance policies. See General Housewares Corp. v. National Sur. Corp., 741 N.E.2d 408, 413 (Ind. Ct. App. 2000). This doctrine, which is not dependent upon particular policy language, derives “from the fundamental concept in insurance law that the loss be fortuitous.” Id. at 413, 415. “Simply put, the known loss doctrine states that one may not obtain insurance for a loss that has already taken place.” Id. at 413. A loss that exists at the time insurance is purchased, or one which is “‘probable or imminent,’” is not a proper subject of insurance. Id. (quoting 7 Couch on Insurance, § 102:8 at 20 (3d. ed. 1997)). * * *

[J]ust as in Crawfordsville Square, KLR as a purchaser of environmentally contaminated property was made aware of the existence of the contamination at levels above IDEM regulatory levels and that remediation definitely would be required. KLR, through adoption of Apex’s lawsuit, had taken steps to protect its financially against the costs of testing and remediation, just as the buyer in Crawfordsville Square had done by demanding an escrow payment by the seller to cover such costs. And, as we held in Crawfordsville Square, the lack of an existing IDEM enforcement action at the time KLR bought the property and obtained insurance is “essentially irrelevant . . . .” Crawfordsville Square, 906 N.E.2d at 939. This evidence conclusively demonstrates as a matter of law the existence of a known loss by KLR prior to the time it obtained insurance from the Insurers. * * *

Any claim by KLR against the Insurers related to the IDEM remediation action is conclusively barred by the known loss doctrine. The trial court properly granted summary judgment in favor of the Insurers, and they are not required either to defend or indemnify KLR. We affirm.

In Bruce Schaadt v. State of Indiana, a 7-page opinion, Judge Friedlander writes:
Schaadt challenges his sentence on appeal, raising the following restated issues:
1. Does the savings clause of the 2014 criminal code revision violate the Equal Privileges and Immunities Clause of the Indiana Constitution?
2. Is Schaadt’s forty-year sentence inappropriate in light of his character and the nature of his offenses? * * *

Schaadt argues that the savings clause unconstitutionally and arbitrarily creates “two classes of drug offenders: those who committed their offenses before the change in law and those who committed their offenses after the change in law.” We find nothing arbitrary about the savings clause.

We affirm.

NFP civil decisions today (4):

In Re: The Marriage of: Regina A. Niccum v. Matthew B. Niccum (mem. dec.)

C.R. v. V.R. (mem. dec.)

Michael W. Hawkins v. Julie M. Hedge (mem. dec.)

In the Matter of the Term. of the Parent-Child Relationship of W.P., Jr., and W.P., SR. and S.D.: S.D. and W.P. v. Ind. Dept. of Child Services (mem. dec.)

NFP criminal decisions today (5):

Cody Silvers v. State of Indiana (mem. dec.)

Samuel Trahan IV v. State of Indiana (mem. dec.)

Katyun Marsh v. State of Indiana (mem. dec.)

Anthony C. Martin v. State of Indiana (mem. dec.)

Andrew J. Lessing v. State of Indiana (mem. dec.)

Posted by Marcia Oddi on April 8, 2015 11:39 AM
Posted to Ind. App.Ct. Decisions