Monday, January 05, 2009
Ind. Courts - Fulton County Bar Association honors Judge Douglas B. Morton
Ted A. Waggoner of Rochester sends along this invitation:
Please join the Fulton County Bar Association for a Reception honoring Douglas B. Morton as he retires from the bench.Friday, January 9, 2009, 3:00 p.m. to 5:00 p.m., in the Jury Room at the Fulton Circuit Court.
Posted by Marcia Oddi on January 5, 2009 04:45 PM
Posted to Indiana Courts
Ind. Courts - "Could 2009 bring a third Camm trial?"
That question is asked by Chris Morris of the New Albany/Jeffersonville News & Tribune in a story Jan. 3rd:
David Camm is still waiting for the Indiana Supreme Court to decide his fate, again. Quietly, Floyd County leaders worry about what could happen.Actually, some language did pass in 2007 to address the problem. Find it at IC 35-38-4-7. However, it appears to be limited to $50,000 "for all proceedings and all offenses arising out of the same facts."Camm — who has been convicted twice of murdering his wife and two children in their Georgetown home in 2000 — hopes to get a new trial after his attorney argued to the court in May that his second trial contained many errors. * * *
Camm’s two trials have already cost Floyd County more than $2 million. And each month, the county is responsible for paying Camm’s public defender tab.
“It would kill us,” County Council President Larry McAllister said of a third Camm trial. “I don’t know what we would do or where we would get the money.”
Former State Rep. Bill Cochran introduced House Bill 1692 in 2007, and the bill is still in committee. The bill requires the state to reimburse a county if the Indiana Court of Appeals or Indiana Supreme Court remands the case for a new trial. If the bill passes, it would offset the costs to the county if the Supreme Court orders a new trial.
For more on trial costs, see these two ILB entries and the associated links.
Posted by Marcia Oddi on January 5, 2009 01:07 PM
Posted to Indiana Courts
Courts - "Justices’ Ruling in Discrimination Case May Draw Quick Action by Obama"
The ILB has had a number of entries on the Supreme Court's decision in 2007 in the case of Ledbetter v. Goodyear Tire & Rubber Co.
In this story yesterday in the NY Times, Robert Pear reported:
President-elect Barack Obama and Democrats in Congress are planning swift action to overturn a Supreme Court decision that made it much harder for people to challenge discrimination in employment, education, housing and other fields.The decision, involving a woman named Lilly M. Ledbetter, who had accused her employer of sex-based pay discrimination, was issued in May 2007. Since then, courts around the country have gone far beyond the facts of that case and cited it as a reason for rejecting lawsuits claiming discrimination based on race, sex, age and disability.
In some cases, after initially ruling for employees, judges have reversed themselves and ruled in favor of employers. The judges said they had to switch because of the Supreme Court decision. * * *
At issue in the Ledbetter case was the deadline for filing charges under Title VII of the Civil Rights Act of 1964. The Supreme Court did not deny that Ms. Ledbetter had suffered discrimination, but said she should have filed her claim within 180 days of “the alleged unlawful employment practice” — the initial decision to pay her less than men performing similar work.
Posted by Marcia Oddi on January 5, 2009 12:55 PM
Posted to Courts in general
Ind. Decisions - 7th Circuit decides one Indiana case today
In U.S. v. Sean Osborne (SD Ind., Judge Hamilton), an 8-page opinion, Chief Judge Easterbrook writes:
Sean Osborne pleaded guilty to possessing and distributing child pornography, in violation of 18 U.S.C. §2252(a). The minimum penalty for that crime is 5 years, and the maximum is 20 years, but if the defendant has a prior conviction “under the laws of any State relating to aggravated sexual abuse, sexual abuse, or abusive sexual conduct involving a minor or ward”, the minimum penalty rises to 15 years and the maximum to 40. 18 U.S.C. §2252(b)(1). Osborne’s record includes a conviction for violating Ind. Code §35-42-4-9(b), which makes it a crime for a person age 18 or older to “perform[] or submit[] to any fondling or touching, of either the child [any person age 14 or 15] or the older person, with intent to arouse or to satisfy the sexual desires of either the child or the older person”. The dis- trict court concluded that every conviction under §35-42-4- 9(b) arises from “abusive sexual conduct involving a minor or ward” and sentenced Osborne to 15 years’ imprisonment. * * *But is all sexual conduct between people of different ages in the “abusive” subcategory? The age difference under §35-42-4-9(b) could be as small as two years (the older person could have just turned 18, and the younger could be one day short of 16), and the sexual contact could include behavior common among students in high school, such as kissing or petting “with intent to arouse . . . the sexual desires” of either person. * * *
Indiana has recognized this. Amendments to §35-42-4-9 in 2007 create a defense that covers most high school students’ touching of the opposite sex. * * * Subsection (e) identifies circumstances under which sexual fondling or touching could not be called “abusive” in ordinary usage. Yet Osborne was convicted in 2002, before this defense was added to the statute. * * *
The district court must reconsider Osborne’s sentence in light of our discussion. Osborne’s argument about the application of U.S.S.G. §2G2.2(b)(5) (which adds five offense levels when a defendant has engaged in “a pattern of activity involving the sexual abuse or exploitation of a minor”) need not be reached if proceedings on remand show that his violation of §35-42-4-9(b) entailed abusive sexual contact, for the 15-year minimum under §2252(b) exceeds the sentence computed under the Sen- tencing Guidelines. But if the district court rules in Osborne’s favor on the characterization of his conviction under §35-42-4-9(b), the court should reconsider the §2G2.2(b)(5) question in light of its conclusion, and what we have said in this opinion. VACATED AND REMANDED
Posted by Marcia Oddi on January 5, 2009 12:25 PM
Posted to Ind. (7th Cir.) Decisions
Law - IU-Bloomington Law Prof to head Obama's Office of Legal Counsel
From the Washington Post:
Dawn Johnsen, an Indiana University law school professor who has been handling transition work for the department's sensitive Office of Legal Counsel, today was picked to lead the office. The once obscure OLC took on new importance during the Bush Administration after lawyers there blessed coercive detainee interrogation practices and warrantless domestic surveillance programs. Johnsen had served as an OLC deputy in the Clinton era. In an interview before the election, Johnsen told the Washington Post that a review of all of the Bush era legal opinions would be a major undertaking for the new administration.For more, see this April 3, 2006 ILB entry, and this faculty bio. From the Hotline:
Dawn Johnsen, Assistant Attorney General for the Office of Legal Counsel Johnsen is currently a Professor of Law at the Indiana University School of Law—Bloomington, where she teaches and writes about issues of constitutional law. Her recent publications on issues of presidential power include Faithfully Executing the Laws: Internal Legal Constraints on Executive Power, 54 UCLA L. Rev. 1559 (2007) and What's a President to Do? Interpreting the Constitution in the Wake of the Bush Administration's Abuses, 88 Boston U. L. Rev. 395 (2008). She serves on the board of directors of the American Constitution Society for Law and Policy. She served in the Office of Legal Counsel, U.S. Department of Justice, as the acting assistant attorney general heading that office (1997-98) and as a deputy assistant attorney general (1993-96). In that capacity, she provided constitutional and other legal advice to the attorney general, the President, and the general counsels of the various executive branch agencies. From 1988-93, she was the legal director of the National Abortion and Reproductive Rights Action League (NARAL). She clerked for the Honorable Richard D. Cudahy, U.S. Court of Appeals for the Seventh Circuit. She received a B.A from Yale University in 1983 and a J.D. from Yale Law School in 1986.
Posted by Marcia Oddi on January 5, 2009 12:03 PM
Posted to General Law Related
Ind. Decisions - Court of Appeals issues 0 today (and 3 NFP)
For publication opinions today (0):
NFP civil opinions today (2):
In the Paternity of C.B.R. and L.M.R. (NFP) - " Appellant presents one issue for our review: did the trial court abuse its discretion in setting the amount Appellant was to pay on his child support arrearages? We affirm. "
Timothy J. Coughlin v. Riggs-Ellinger, Inc. (NFP) - "The trial court’s determination that Riggs-Ellinger is entitled to the unpaid balance of the purchase price, as set out in the Purchase Agreement that was breached by Coughlin, Scott, and RPA, is not clearly erroneous. Judgment affirmed. "
NFP criminal opinions today (1):
Tenee Webster v. State of Indiana (NFP)
Posted by Marcia Oddi on January 5, 2009 11:54 AM
Posted to Ind. App.Ct. Decisions
Ind. Law - "Yielding to emergency vehicles"
Ken Kosky's "It's the Law" column in the NWI Times this week focuses on the law requiring people to yield to emergency vehicles. Some quotes from the story:
A police officer is more likely to be run over during a roadside traffic stop than he is to be shot or stabbed, according to police statistics.That's why Indiana enacted a "move over law" that requires motorists who see a stopped emergency vehicle on the side of the road to, if they're on a four-lane road, switch lanes so they are not in the lane next to the stopped emergency vehicle. If the motorists can't safely get to the other lane, they must slow down and cautiously drive past the emergency vehicle.
Motorists must move over for police cars, fire trucks and ambulances. They must also move over for recovery vehicles and highway maintenance vehicles. * * *
The same law that requires people to move over for stopped emergency vehicles also requires people to pull to the right and stop when they see an emergency vehicle approaching them and trying to get past them. Emergency responders say people who fail to pull over delay the emergency responders' response to serious medical calls, fires and traffic accidents.
Posted by Marcia Oddi on January 5, 2009 08:45 AM
Posted to Indiana Law
Ind. Decisions - Upcoming oral arguments this week
This week's oral arguments before the Supreme Court:
This Thursday, Jan. 8:
9:00 AM - Tri-Etch, Inc. v. Cincinnati Insurance Company - In this insurance coverage dispute, the Marion Superior Court entered partial summary judgment for Plaintiffs and summary judgment for Cincinnati Insurance Company, concluding the Estate of Young's claim against Tri-Etch fell within the policies, but that Cincinnati owed no coverage because Tri-Etch gave Cincinnati unreasonably late notice of the claim. The Court of Appeals affirmed in part, reversed in part, and remanded with instructions to enter summary judgment for Plaintiffs on the issues of notice and coverage and to determine the defense costs owed by Cincinnati. Cincinnati has petitioned the Supreme Court to accept jurisdiction over this appeal. Attorneys for Tri-Etch, Inc.: Debra H. Miller and James R. Fisher, Indianapolis, IN. Attorneys for Scottsdale Ins. Co.: Lloyd H. Milliken and Lucy R. Dollens, Indianapolis, IN. Stacy M. Broman and Jacob S. Woodard, Minneapolis, MN. Attorneys for Cincinnati Ins. Co.: Richard R. Skiles and janet M. Prather, Indianapolis, IN. Attorneys for Amicus Curiae Ins. Inst. of Indiana, Inc.: John C. Trimble and Richard K. Shoultz, Indianapolis, IN. Attorneys for Amicus Curiae Property Cas. Insurers Ass'n of Am.: Karl L. Mulvaney, Martha S. Hollingsworth and Barry C. Cope, Indianapolis, IN. Attorneys for Amicus Curiae Complex Ins. Claims Litig. Ass'n: Michael A. Dorelli, Patrick J. Olmstead, Jr. and Jason L. Fulk, Indianapolis, IN. Laura A. Foggan and Benjamin J. Theisman, Washington, D.C. [Note: The COA opinion was Tri-Etch Inc., et al v. Cincinnati Insurance Co., decided 7/24/08. See ILB summary of COA opinion here, 5th case.]
9:45 AM - Allianz Insurance Company v. Guidant Corporation - In this insurance coverage dispute, the Marion Superior Court entered partial summary judgment in favor of the policyholders. The Court of Appeals reversed, holding that the policy's "batch clause" was not triggered, and thus the policy's self-insured retention was not exhausted. Allianz Ins. Co. v. Guidant Corp., 884 N.E.2d 405 (Ind. Ct. App. 4/17/2008). The policyholders have petitioned the Supreme Court to accept jurisdiction over the appeal. Attorneys For Appellants: Richard A. Smikle, Andrew J. Miroff, and Brian J. Paul, Indianapolis, Indiana. Lazar P. Raynal and Geoffrey A. Vance, Chicago, Illinois. Attorneys For Appellees: George M. Plews, Jeffrey D. Claflin and Todd Janzen, Indianapolis, Indiana. G. Andrew Lundberg, Los Angeles, California. Mary Rose Alexander, Chicago, Illinois. [Note: See ILB summary of the COA opinion here, 2nd case. The discussion of Rule 9 is must reading.]
10:30 AM - Robert Rovai v. Ann Marie Rovai - When dissolving the parties' marriage and dividing their property, the Lake Circuit Court entered a money judgment in favor of the ex-husband but made the ex-wife's payment of that money due upon the occurrence of one of several future events and specified that no interest would accrue on that judgment. The Court of Appeals affirmed. In re Marriage of Rovai, 891 N.E.2d 177 (Ind. Ct. App. 8/4/2008), vacated. The Supreme Court has granted a petition to transfer the case and has assumed jurisdiction over the appeal. Attorney for Robert Rovai: George P. Galanos, Crown Point, IN. Attorney for Ann Marie Rovai: James J. Nagy, Munster, IN. [Note: See ILB summary here, 2nd case.]
Webcasts will be available here.
This week's oral arguments before the Court of Appeals that will be webcast:
None scheduled.
This week's oral arguments before the Court of Appeals that will NOT be webcast:
This Wednesday, Jan. 7th:
1:30 PM - Larry Cox vs. Allen Matthews - Appellant's allege that the testimony of a witness was improperly admitted, the verdict was excessive and the procedure for appointing the Special Judge was improper. The Scheduled Panel Members are: Chief Judge Baker, Judges Darden and Barnes [Where: Indiana Court of Appeals Courtroom]
Posted by Marcia Oddi on January 5, 2009 08:05 AM
Posted to Upcoming Oral Arguments
Sunday, January 04, 2009
Ind. Decisions - "Rulings target Internet sex stings: Appeals court says there must be an actual victim "
The Dec. 31st, 2-1 Court of Appeals ruling in the case of Randy Gibbs v. State of Indiana, about which the ILB posted this summary and commentary, is the subject of this story today by Jon Murray of the Indianapolis Star. Some quotes:
The Internet stings police consider key to protecting minors from sexual predators may lose some of their power after two recent Court of Appeals rulings.See the ILB summary of the July 11th Alpin decision here - 2nd case.The use of undercover investigators as bait in Internet chats has become routine in Central Indiana. But the attraction for law enforcement -- the lack of an actual victim -- also became the basis for the reversal of two convictions against a Shelbyville man Wednesday by the Indiana Court of Appeals. * * *
The decision and a similar ruling in July targeted the most serious charge usually leveled against suspects nabbed in online stings.
The court ruled 2-1 that attempted sexual misconduct with a minor, a Class B felony, requires that the victim be a minor; an undercover officer doesn't count. It also used the same reasoning to reverse Randy Gibbs' conviction of dissemination of matter harmful to a minor, leaving only a child solicitation conviction intact.
Gibbs, now 48, was arrested after he showed up at an Indianapolis apartment in 2006 with rope and condoms in his pockets following explicit online chats with an investigator posing as 15-year-old "Samantha."
Appeals Judge Melissa S. May dissented, arguing all charges should stand against Gibbs.
"He did all he believed was necessary to complete the offense of sexual misconduct of a minor," May wrote, "and he failed to complete the offense only because it was not possible under the circumstances."
Mario Massillamany, the Marion County prosecutor's spokesman, said the office had stopped using the attempted sexual misconduct charge in online sting cases after the July decision, which a different Court of Appeals panel issued in a Hamilton County case. * * *
[Hamilton County Prosecutor Sonia Leerkamp] had hoped the Indiana Supreme Court would take up the Hamilton County case. Matthew Jachin Aplin, then 27, was arrested in 2006 after he chatted online with an investigator posing as a 15-year girl and showed up to a meeting inside a Fishers SuperTarget store.
But last month, the state Supreme Court declined to review the Court of Appeals' reversal of Aplin's attempted sexual misconduct conviction.
As noted in the story, the Supreme Court denied transfer in Alpin. The commentary to the Dec. 31st ILB entry focuses on the significant to be given the denial.
Posted by Marcia Oddi on January 4, 2009 11:26 AM
Posted to Ind. App.Ct. Decisions
Ind. Decisions - New trial ordered by judge in pollution suit against New Albany power plant that jury rejected
On Dec. 21st the ILB had this entry, which included a link to this Dec. 18th order (#1506) in the case of U.S. v. Cinergy, et al. The entry also included a link to the list of recent documents available at the time. #1507 was marked as "sealed."
The document has now been unsealed via this Order to Unseal filed Dec. 22nd, which begins:
On the Court’s own motion, the Court has concluded that there is no good cause to keep plaintiff’s, the United States of America, and plaintiff-intervenors’, the State of New York, the State of New Jersey, the State of Connecticut, the Hoosier Environmental Council, and the Ohio Environmental Council (all plaintiffs, collectively, “Plaintiffs”), Motion for a New Trial Due to Party Misconduct, or, in the Alternative, for Expedited Discovery and an Evidentiary Hearing, related briefing, and the Court’s Order on Plaintiff’s Motion for New Trial under seal.Here is the Dec. 18th Order (1507), now unsealed.
Mark Wilson of the Evansville Courier & Press has a story today about the Order. Some quotes:
A federal judge has ruled lawyers for Duke Energy misled jurors about one of its witnesses during a trial on whether the utility company broke federal clean air laws at power plants in Indiana and Ohio.Those plants include the giant 3,145-megawatt power plant in Gibson County, Ind.
Federal Judge Larry Mc-Kinney ruled Duke attorneys mislead jurors by portraying a witness with knowledge of the power plant improvements simply as a former employee. At the same time, according to the judge's ruling, the Duke attorneys portrayed government witnesses as experts who were paid for their testimony.
After the trial it was discovered that Duke had agreed to pay its witness $200 an hour for his testimony, according to the court record.
McKinney ruled knowing that information could have changed the jury's perception of the facts and its decisions.
"The case involved a substantial amount of a retired employee's time, including his travel. So he was paid. It is a routine fee," said Angeline Protogere, a Duke Energy spokeswoman.
The ruling paves the way for a new trial on most of the charges, even though a jury ruled in Duke's favor on them in May. That gives the government and environmentalists who joined the lawsuit a second chance to prove the company violated the Clean Air Act. * * *
A new trial date has not been set. But the utility company's lawyers have been ordered to attend a Jan. 13 hearing in Indianapolis and explain why they should not be suspended from practicing before the United States District Court for the Southern District of Indiana and pay court costs. [ILB emphasis]
Posted by Marcia Oddi on January 4, 2009 09:35 AM
Posted to Environment | Ind Fed D.Ct. Decisions
Ind. Law - Another editorial on "Approving a proposed constitutional amendment that would put limits on property-tax bills, so it can be put on the ballot for ratification in 2010"
Following on a long list of earlier ILB entries, the Evansville Courier & Press has this editorial today. Some quotes:
Few state laws have so powerful an impact on Hoosiers that they are recognized by their numerical signature by taxpayers and public officials alike. One state law that is that familiar is House Bill 1001, the state's property tax law passed in the last session of the Indiana General Assembly.This editorial's continued reference to "HB 1001" is problematic. There is a "House Bill (HB) 1001" in every session. To refer to the version of HB 1001 that was passed by the General Assembly in 2008, the correct reference is House Enrolled Act (HEA) 1001 of the 2008 session. Even better is reference to its Public Law number, which in this case is P.L. 146-2008.Local government officials and homeowners who closely follow taxes and spending are so engaged in the issue that their conversations routinely include someone saying "1001 this" and "1001 that."
They all know that 1001 is the law that, among other features, will cap property taxes, bringing down to earth the tax bills for Hoosier homeowners, many who were hit the year before with crippling bills. * * *
This newspaper strongly supported the passage of HB1001, but we fail now to see the necessity of sealing those caps in the state constitution.
It comes down to this: Daniels and others want to make it as difficult as possible for future legislatures to get rid of the caps.
Those caps are effective tools for controlling the burden on taxpayers. And, they are the law of the state, facing no serious threat for reversal.
But we believe it is too nearsighted to tie the hands of future lawmakers, say 10 to 20 years down the road. Nobody can know now what challenges they will face.
Look at it this way. If Hoosiers want to insure that the legislature will not reverse the caps featured in HB1001, then elect lawmakers who promise to keep the caps in place.
At the same times, legislators are extremely sensitive to the wishes voters. They are not likely to lift the caps without a very good reason — a reason that no one can foresee today.
At the least, let's give the tax law time to work. As State Rep. Russ Stilwell, D-Boonville, told Corbin, "One needs to know what the impacts are before we unilaterally stick it into the constitution."
HB1001 is a good law, as is; keep it that way.
"10 or 20 years down the line", a reference to "HB 1001" will result in nothing but confused stares.
Of equal or greater concern, as has been noted before in the ILB, is the fact that much of this law is not in the Indiana Code.
Posted by Marcia Oddi on January 4, 2009 09:08 AM
Posted to Indiana Law
Ind. Courts - More on "Girl sues IHSAA to play baseball"
Updating this ILB entry from Nov. 25th, which included a link to the 15-page complaint, an AP story today reports:
BLOOMINGTON, Ind. -- A freshman girl would be allowed to try out for the Bloomington South baseball team under an agreement reached after her family filed a federal lawsuit over an Indiana High School Athletic Association rule that could have barred her from the team. * * *"They will agree to allow Logan to try out for the baseball team. If she's successful, she'll be permitted to play," said James Whitlatch, an attorney for the school district.
An IHSAA rule prohibits girls from trying out for baseball if their school has a softball team on the basis that the sports are comparable. But the lawsuit filed Nov. 21 in U.S. District Court in Indianapolis argues that baseball and softball aren't really the same sport, so girls should be able to try out for baseball.
The suit seeks to have the IHSAA rule thrown out based on the equal protection clause of the 14th Amendment to the Constitution and Title IX, the federal law that mandates equal educational opportunities for boys and girls.
The suit, filed by Young and her parents, Marie-Elisabeth and Russell Young of Bloomington, names the IHSAA and the school district as defendants.
The settlement agreement, which includes no monetary payment, is between the school district and the family and doesn't include the IHSAA, Whitlatch said. He said he expected the paperwork for the settlement to be filed in federal court within a few days.
Posted by Marcia Oddi on January 4, 2009 08:59 AM
Posted to Indiana Courts
Saturday, January 03, 2009
Environment - "Protect our environment, even in not-so-good times"
That is the headline of this editorial today in the Indianapolis Star. Some quotes:
One of the unfortunate victims of the national recession may be Indiana's environment. * * *This story from today's Evansville Courier & Press disucces how their area will operate now that:Today's leaders must understand they're guiding a state that has a long history of neglecting its natural resources. That fact makes not only environmental activists but also many other Hoosiers wary when programs are cut and policies altered.
The budget is undeniably tight. Tough decisions must be made. But the environment should be placed on the same plane as economic development and education when deciding what to protect.
The state canceled its contracts with the Evansville Environmental Protection Agency and other local air pollution control agencies for this year — leaving the agency without a 40 percent chunk of its annual funding.This editorial today from the Fort Wayne Journal Gazette includes these quotes:
The Indiana Department of Environmental Management wants to use the economy as a pretext for reneging on recycling grants it promised to several communities and environmental agencies. Hard economic times certainly force people to set priorities, but this decision suggests that protecting the environment is not among Gov. Mitch Daniels’ priorities.The agency announced this week it was suspending at least six state grants that help pay for recycling and pollution prevention programs for the next 18 to 30 months. Agency officials claim delaying the promised grants will save about $2 million and is a needed cost-saving measure.
The problem is these grants were already awarded, and the agencies that were supposed to receive the state dollars are depending on the money to run their programs. The decision means that about $3 million that was previously approved for recycling or pollution prevention programs by the state will not get to the intended groups. * * *
The need to re-examine state spending in light of the recession is wise. But the decision to delay recycling grant dollars could harm important programs – and is just the latest IDEM decision on a growing list that clearly demonstrates Daniels’ lack of support for environmental protection.
Posted by Marcia Oddi on January 3, 2009 08:12 AM
Posted to Environment
Ind. Gov't. - Incoming Attorney General Zoeller featured today
The Evansville Courier & Press reporter, Bryan Corbin, has a lengthy feature today on Greg Zoeller. A few quotes:
Zoeller will succeed his boss, outgoing Attorney General Steve Carter, and plans to build on Carter's programs of the past eight years. But Zoeller also learned from another Hoosier politician, Dan Quayle.Zoeller has been Carter's second-in-command; and when sworn in as Indiana attorney general Jan. 12, he will inherit Carter's consumer-protection responsibilities and the Do Not Call List that Carter promoted to deter telemarketers.Zoeller, 53, has promised to continue the current attorney general's ongoing lawsuit against alleged racketeering by political figures in East Chicago, Ind. Investigating public corruption is one of the attorney general's duties, and Zoeller suspects the misuse of tax dollars will become more of a problem in Indiana as the economy worsens.
"If you look at the state of the economy, there's probably even more reason to be concerned over those who have responsibility for public funds," Zoeller said. "We do come to office at a time when we've got a major economic crisis in the country. So it's not always about developing new programs, but preparing for what I can envision to be additional challenges for the office."
Zoeller will supervise 140 attorneys who enforce consumer-protection laws and represent the state when prisoners appeal their convictions in appellate court.
As attorney general, Zoeller will have a regulatory role in ensuring that tax-exempt nonprofits use their donations in the public's interest. And he is looking at changing the way the office investigates medical-licensing complaints so they end with more "certainty," he said.
"Probably his biggest challenge is just making his own mark. When you work under somebody else and you step to the forefront, you have to differentiate yourself from your prior boss and set your own course," said Rep. Trent Van Haaften, D-Mount Vernon, a former Posey County prosecutor. "How (Zoeller) does that depends on what course he chooses to take, whether he is out front on a number of things, whether he finds a cause or two that needs to be addressed and addresses it."
Posted by Marcia Oddi on January 3, 2009 08:07 AM
Posted to Indiana Government
Ind. Courts - "She's the best trial judge I've ever practiced in front of"
That is a quote from from Jon Murray's story today in the Indianapolis Star, headed "Marion County Judge Patricia Gifford retires after 30 years." Some quotes:
Patricia Gifford spent three decades in a swamp of murders, robberies, rapes and swindles, a toxic turf few judges in Marion Superior Court survive half as long. * * *"You've got to remember, when she assumed the bench, there were not many women lawyers, much less judges," said Theodore Boehm, an Indiana Supreme Court justice and Gifford's grade-school classmate on Indianapolis' Northside. "She really was a pioneer and a leader."
Opportunities were just opening up for women, a point underlined in one of her earliest cases, a sex crime, after she became a judge in 1979.
"The defendant was strenuously objecting because the judge was a woman, the prosecutor was a woman and the victim was a woman," Gifford said. She found the situation anything but objectionable. "I thought, 'Isn't that amazing?' "
Before she took over Criminal Courtroom 4, Gifford, 70, a Republican, started out as a teacher -- only because she didn't want to become a homemaker or a nurse, among the few options available for women in the early 1960s. A few years later, she earned a law degree and worked for the Indiana attorney general, then as a part-time prosecutor.
Gifford quickly developed a sharp-edged tenor from the bench. It's an approach that humbles unprepared lawyers of all stripes, while inspiring their respect. * * *
New judges long have leaned on Gifford as a mentor, including Robert Altice, whose courtroom is next door; Jane Magnus-Stinson, now a federal magistrate; and Robyn Moberly, now a civil judge.
Gifford's best advice was simple, Moberly said -- "to remember that I'm in control, and my demeanor really sets the tone of the courtroom."
Gifford also was a teacher, of sorts, to young defense attorneys and prosecutors.
"She's the best trial judge I've ever practiced in front of," said Bob Hill, who handled death-penalty cases before Gifford and now is chief public defender. "She might not always agree about what you're advocating, but she will always let you present your case. She's always very fair and even-handed."
Scott Newman, the city's public safety director and the former Marion County prosecutor, was more blunt.
"She wasn't someone you would go have a beer with. But she was what a judge should be, in the sense that she made you be the best lawyer you could be."
Posted by Marcia Oddi on January 3, 2009 07:59 AM
Posted to Indiana Courts
Friday, January 02, 2009
Ind. Decisions - Court of Appeals issues 1 today (and 2 NFP)
For publication opinions today (1):
In Darcy Lafferty v. State of Indiana, an 8-page decision, Sr. Judge Garrard writes:
On appeal, [Lafferty] claims error in the court’s refusal to give her tendered final instruction defining “fugitive from justice.” She also claims the evidence fails to sustain the verdict. * * *NFP civil opinions today (0):Accordingly, we conclude the court erred in failing to give the requested instruction. Moreover, there was a failure of proof because no evidence was presented that Murphy had been charged with an offense in another state and fled to Indiana. The judgment is reversed and the appellant is ordered discharged.
NFP criminal opinions today (2):
Veltor L. Cotton, Jr. v. State of Indiana (NFP)
Aimee E. Gross v. State of Indiana (NFP)
Posted by Marcia Oddi on January 2, 2009 10:55 AM
Posted to Ind. App.Ct. Decisions
Courts - "Left and right differ on the decisions, but each side has its ‘worst’ list"
Worst decisions of the SCOTUS? David Savage has an article in the January issue of the ABA Journal naming a few.
Posted by Marcia Oddi on January 2, 2009 10:52 AM
Posted to Courts in general
Ind. Law - Quirks of the Rules of the State Lottery Commission and Horse Racing Commission
The General Assembly possesses the legislative power of state government, the power to pass laws. The theory goes that the legislature may delegate its lawmaking power to state administrative agencies, by granting rulemaking authority in the agency's governing statute, but that the language has to set the parameters of the agency's delegated rulemaking power. In other words, the rules are only to implement the provisions of laws passed by the state legislature
There have been challenges to rules adopted by one or another state agency, claiming that they go beyond the authority delegated to the agency by the General Assembly, or that the parameters spelled out in the agency's statute are too broad, without sufficient standards, so that the agency is making law on its own, rather than simply fleshing in the outline set by the General Assembly.
Challenges may also be posed to state agency rules on the grounds that they were improperly promulgated. The general rulemaking statute, IC 4-22-2 -- Adoption of Administrative Rules, prescribes the formal steps that must be followed by a state agency to properly adopt (promulgate) a rule.
This law is designed to insure openness and public participation in the rulemaking process. Those rulemakings that do not follow the steps are invalid. See IC 4-22-2-44 - "A rulemaking action that does not conform with this chapter is invalid."
Normally, the statute requires a proposed rule to be published in the Indiana Register at least once, with a formal opportunity for submission of written comments and/or public hearing. (BTW, in the case of environmental rules, the General Assembly has added a number of additional steps to the general rulemaking process - here is a chart comparing the steps for general, environmental, and emergency rulemaking.)
After adoption by the agency, the proposed rule must be reviewed and approved by the Attorney General (IC 4-22-2-31 & 32) for legality (including whether it has been adopted with statutory authority) and by the Governor (IC 4-22-2-33 & 34), and a minimum of 30 days must pass (IC 4-22-2-36) after the finalized rule is filed with the publisher (LSA) before it goes into effect. Again, the procedure is set by statute, and following the steps involved may mean a rule takes months, or even years, to finalize.
Emergency rules. There are exceptions to the above, that apply to certain agencies under certain conditions. These are spelled out in IC 4-22-2-37.1.
If you look online, you will notice that there are several versions of section 37.1. This section is one of the most amended in the Indiana Code and nearly every session a number of amendments change it. It is also one of the most complex to read and apply.
Under section 37.1, certain agencies are allowed to shortcut, for a time, the lengthy rulemaking process set out in the rest of IC 4-22-2, through use of temporary or "emergency" rulemaking procedures.
Section 37.1 begins: "(a) This section applies to a rulemaking action resulting in any of the following rules:" A list of 31 different situations follows.
Subsection (b) provides that the rest of the rulemaking requirements -- i.e. those set out in IC 4-22-2-24--36, do not apply in the 31 situations. Instead, as provided in subsection (c), the agency simply adopts the emergency rule and files it with LSA. And by virtue of subsection (f), no waiting is required for the rule to go into operation; it may go into effect the day of filing.
Looking through the list of 31 situations where this shortcut is allowed, #8 is "An emergency rule adopted by the state lottery commission under IC 4-30-3-9" and #12 is "An emergency rule adopted by the Indiana horse racing commission under IC 4-31-3-9.."
Generally a rule adopted under section 37.1 expires in 90 days, as set out in subsection (g). However, over the years subsection (g) has been burdened with more and more exceptions.
But those interested in emergency rules of the lottery or horse racing commissions need not concern themselves with subsection (g), because a separate subsection, (h), applies. It reads:
(h) A rule described in subsection ... (a)(8) [An emergency rule adopted by the state lottery commission under IC 4-30-3-9] , [or] (a)(12) [An emergency rule adopted by the Indiana horse racing commission under IC 4-31-3-9], ... expires on the earlier of the following dates:What does this mean? I read it to mean that an emergency rule adopted by the lottery commission or horse racing commission, that does not itself include an expiration date, does not expire. It is a permanent rule.
(1) The expiration date stated by the adopting agency in the rule.
(2) The date that the rule is amended or repealed by a later rule adopted under sections 24 through 36 of this chapter or this section.
In short, the state lottery commission and the horse racing commission may adopt permanent rules with no notice, no opportunity for public participation, and no warning. Neither the Attorney General nor the Governor are involved. And the rules may go into operation the day they are filed with the LSA. And they may be permanently amended or repealed just as quickly.
So how would one challenge such a rule? Suppose your concern is that the agency has issued an ultra vires rule -- one beyond its statutorily granted authority? Or that a rule does not contain ascertainable standards, and so cannot withstand a challenge for vagueness?
In my opinion, you would begin in court. An emergency rule issued by the lottery or horse racing commission is a final agency action. There are no available administrative remedies of any sort to exhaust.
Posted by Marcia Oddi on January 2, 2009 08:49 AM
Posted to Indiana Law
Ind. Courts - "Ex-law partners take oaths as judges" in Delaware County
From a story today in the Muncie Star-Press, reported by Douglas Walker:
There might have been a bittersweet element to a Wednesday ceremony that saw longtime law partners sworn in as local judges.Thomas Cannon Jr.'s law partnership with fellow attorney Bill Bruns effectively came to an end when he took the oath of office as new judge of Delaware Circuit Court 5.
Sworn in by veteran Circuit Court 2 Judge Richard Dailey, Cannon then administered the oath of office to Bruns, who became judge of Muncie City Court.
Cannon, a Democrat, was elected to the Circuit Court 5 bench in the Nov. 7 election.
Bruns, a Republican, was recently chosen by Gov. Mitch Daniels to succeed longtime City Court Judge Linda Ralu Wolf, who had been elected judge of Circuit Court 3.
Posted by Marcia Oddi on January 2, 2009 08:22 AM
Posted to Indiana Courts
Ind. Courts - "Marriage vows words of day at Porter County Courthouse"
James D. Wolf Jr. reports today in the Gary Post-Tribune:
VALPARAISO -- If you ever thought it might be fun to get married on New Year's Eve, you're not alone.The Porter County Courthouse issued seven marriage licenses Wednesday. Six couples married at the courthouse, and one had plans for later that night.
The end of the year, like Valentine's Day and other holidays, sees an increase in marriages, although this year has seen more.
"I don't think it's been this way in a couple of years," Deputy Clerk Cindy Beach said. She performed two of the ceremonies herself.
People have different reasons for choosing the last day of the year, said Judge Mary Harper, who performed three ceremonies Wednesday and one Tuesday. * * *
Mark Conrady and Leonora Hale of Porter felt their marriage would be the perfect end to a good year, and they had her sister, Christine Barry, visiting from England.
Harper, who usually charges $100 per ceremony, said she plans to donate the fees from Wednesday's weddings to the Humane Society.
Posted by Marcia Oddi on January 2, 2009 08:18 AM
Posted to Indiana Courts
Ind. Law - "Convicted killer turns to law upon his release from prison"
Marisa Kwiatkowski reports today in the NWI Times in a story that begins:
SOUTH BEND | A region man serving time for his part in slaying and decapitating his father plans to perch on a different side of the law upon his release.Paul Komyatti Jr., 43, who was 17 when he was sentenced in 1983 to prison for the slaying, has a job lined up as a paralegal in an Indianapolis law firm upon his release.
After 26 years in prison garb, Komyatti, formerly of Hammond, said it was time for a new image. * * *
Komyatti said he will leave prison armed with three bachelor's degrees from Ball State University and a thick file of accomplishments.
"My life is going in a certain direction, and I'm going to follow it," Komyatti said. "I'm not trying to make up for 26 years in prison. That's impossible."
Komyatti was transferred in September from state prison to the South Bend Work Release Center. He worked a second-shift industrial job in Elkhart, Ind., until the entire shift was laid off.
Judi Jellicoe, assistant superintendent for the South Bend Work Release Center, said Komyatti is cooperative and anxious to rejoin society.
Posted by Marcia Oddi on January 2, 2009 08:14 AM
Posted to Indiana Law
Thursday, January 01, 2009
Ind. Law - Bloomington bars upset with reduced seating limits
An AP story that appeared on a number of newscasts earlier this week reported that:
After Bloomington's City Council increased penalties for fire code violations last June, some bar owners asked the city to verify their maximum occupancy figures in an effort to avoid costly fines.A story dated Dec. 31st from the Bedford Times-Mail, reported by Mercedes Rodriguez, is headed "Bar owners get reprieve." Some quotes:But asking for that verification may end up costing them money.
Bar owners said revised occupancy limits drastically reduce the amount of people who can be inside their bars at any one time. Bluebird nightclub owner Dave Kubiak said capacity at his downtown club was reduced from 443 to 288, even though the venue added several hundred square feet since the previous figure was established. * * *
It's unclear why the latest capacity limits from the fire department vary from limits that the clubs -- many near the Indiana University campus -- had been operating under for decades.
Bloomington Fire Chief Roger Kerr said the department consulted with the Indiana State Building Commission and the state fire marshal's office in reviewing occupancy limits at the bars. State law allows established bars to be governed by historic occupancy guidelines instead of current rules, fire officials said.
BLOOMINGTON — Changes to maximum occupancy limits for five Bloomington night spots were stopped after a meeting with state fire officials in Indianapolis.And recall this ILB entry from August 7th, headed "Ind. Law - Indiana building codes, part of the Indiana Administrative Code, are copyrighted and not available online."Bloomington Fire Chief Roger Kerr; a consultant representing the owners of the Crazy Horse, the Alley Bar, the Upstairs Pub, Jake’s and the Bluebird; city of Bloomington legal counsel and others met as part of an appeals process begun by the bar owners. Earlier this year, the maximum occupancy levels had been reduced by fire officials for those businesses.
The stay is “temporary in nature,” said city attorney Patty Mulvihill. The appeal will not be final until a judge rules on the matter, she said.
The two sides are at odds over the interpretation of state rules that set occupancy limits for public buildings.
John Erickson, spokesperson for the Indiana Department of Homeland Security — the agency under which the fire marshal serves — said state fire inspectors will visit the Bloomington bars. They’ll meet with local officials and determine the use of each space (i.e. dance floors, dining areas) and take measurements of the inside of each business. From there, they will determine occupancy loads.
Erickson said there are different maximum occupancy formulas according to the size and type of space. In addition, different rules apply depending upon when the building was built, he said.
The bar owners did not attend the meeting, according to Bluebird owner Dave Kubiak. They were represented by consultant Melissa Tupper of RTM Consultants of Indianapolis, a firm that specializes in building code and fire code issues.
“Ultimately, we’re just looking for an accurate occupant load that’s consistent with places throughout the state of Indiana,” said Kubiak.
Previously, the Bluebird’s occupancy limit had been reduced from 443 to 288. The Alley’s limit was changed from 28 to 15.
Posted by Marcia Oddi on January 1, 2009 12:01 PM
Posted to Indiana Law
Ind. Law - "Law lets Hoosiers protect reports via e-mail, phone"
Amanda Iacone of the Fort Wayne Journal Gazette had this story yesterday about new credit data safeguards that go into effect today.
Posted by Marcia Oddi on January 1, 2009 11:47 AM
Posted to Indiana Law
Law - *Analysis: Must U.S. Senate seat Burris?"
Two interesting articles today on the question. Lyle Denniston of SCOTUSBlog presents his analysis of the June 16, 1969, decision in Powell v. McCormack here. And Mike Dorning and David G. Savage have this article in the Chicago Tribune, headed "Does Senate have authority to block Blagojevich's appointment of Roland Burris? Supreme Court has said in past that House and Senate cannot refuse to seat someone who meets qualifications."
Posted by Marcia Oddi on January 1, 2009 10:58 AM
Posted to General Law Related
Ind. Decisions - 231 Adult Plaza must close, pay fines
The ILB has had a number of entries re this Spencer County adult shop. Here is a list.
Today Thomas B. Langhorne reports in the Evansville Courier & Press:
In the latest development in a three-year legal battle with Spencer County, a judge there has found 231 Adult Plaza in contempt of court for violating a permanent injunction.Spencer Circuit Court Judge Wayne A. Roell's ruling says the business along U.S. 231 in Dale must "cease all business operations" in its main building without relocating for one year and must pay $362,467.59 in fines and attorney and witness fees.
The ruling states 231 Adult Plaza "may not resume any of the business activities which have been halted by this court until all fines and fees have been paid in full.
"... The defendants have shown a pattern of bad behavior since the time they first began doing business in Spencer County."
The contempt of court finding, which had been sought by Spencer County, comes seven months after the Indiana Supreme Court declined to hear 231 Adult Plaza's appeal of a lower court ruling that said the county could regulate the amount of sexually-themed merchandise in the store's inventory. [See May 6 ILB entry and links]
In December, the Indiana Court of Appeals sided with Spencer County, finding the county did not violate the adult plaza's First Amendment free-expression rights when it regulated adult merchandise in the store through a sexually-oriented businesses ordinance passed in 2005. [See Dec. 16, 2007 ILB entry]
Roell's ruling cites evidence of "numerous and ongoing" ordinance violations that occurred in September, October and November, including as recently as Nov. 26.
The judge's ruling includes a list of violations several pages long, some of them supported by testimony from expert witnesses who visited 231 Adult Plaza. * * *
Lawyers on both sides have said they expect 231 Adult Plaza to appeal Roell's order.
The judge's court order recounts the history of the legal dispute between 231 Adult Plaza and Spencer County in language that often affects an exasperated tone.
"Initially, (the defendants) showed a total disregard for the building codes of Spencer County," Roell wrote. "Next, they quickly violated this court's preliminary injunction and showed a general lack of respect for the authority of this court. And they have routinely violated this Court's permanent injunction showing their disdain for abiding by the rules. They have twice been found to be in contempt of this court.
"In the past, this court has punished these defendants for their violations of both the ordinances of this county and the orders of this court. But this court has also given these defendants the opportunity to follow the rules. Despite that opportunity, this court has now used words and phrases like contempt, disregard, lack of respect and disdain when describing the defendants' actions.
"This court has heard for a second time about how these defendants may have 'pushed the envelope.' That is certainly true. But now the time has come for this court to close that envelope."
Posted by Marcia Oddi on January 1, 2009 09:17 AM
Posted to Ind. Trial Ct. Decisions
Ind. Courts - Reports of judges sworn in in Allen and Tippacanoe counties
Amanda Iacone has this brief report in the Fort Wayne Journal Gazette.
Dorothy Schneider has this report in the Lafayette Journal Courier.
Posted by Marcia Oddi on January 1, 2009 09:13 AM
Posted to Indiana Courts
Ind. Courts - Still more on "LaPorte deputy prosecutor shot"
"Officials release 911 tape in judge-elect's shooting" is the headline to this story today in the NWI Times, reported by Stan Maddux. The story includes a link to the tape of the 911 call. From the story:
LAPORTE | A recording of 911 calls placed after LaPorte Superior Court Judge-elect Jennifer Evans was shot reveals her husband sounding emotionally shaken and much relieved when informed help was on the way.With authorities remaining tight lipped about how the shooting occurred due to the ongoing investigation, the audio released by LaPorte County 911 Director Brent Sollar shed some light on the chain of events. * * *
With follow-up questions still coming from the dispatcher, Koethe said the shot was fired from ''our weapon.'' He said guns in the home were put away for a baby sitter over earlier that night.
After returning home, Koethe said the mishap occurred while he and Evans were bringing the guns out of hiding.
''We were putting them back out to protect ourselves and it fired," Koethe said.
Posted by Marcia Oddi on January 1, 2009 09:05 AM
Posted to Indiana Courts
Ind. Law - "Indiana joins mortgage broker crackdown"; Critics say states too slow to act
Deanna Martin of the AP has a lengthy story today in the Evansville Courier & Press on a crackdown on mortgage brokers. See also this ILB entry from July 8th. A quote from within the story:
But critics say states have been too slow to act, missing chances to prevent the predatory lending practices that have resulted in a historic number of troubled loans across the country. The last two unregulated holdouts — Colorado and Alaska — only began licensing brokers in 2008.Rogers' nonprofit policy and research group recently estimated that almost 2.2 million subprime foreclosures will occur through the end of 2009.
Homes in surrounding neighborhoods could see property values drop by more than $350 billion, the center predicted.
That's grim news for areas like the Martindale-Brightwood neighborhood in Indianapolis, where small but well-kept homes sit on the same block as crumbling houses with peeling paint, tall weeds and plywood-covered windows.
Shirley Webster, who grew up in the area and now owns a home there, says the empty homes attract crime and hurt efforts to rebuild.
"When we have properties that are in foreclosure, they sit vacant for a long time," Webster said. "A lot of people have gotten into these properties that really could not afford it."
Webster supports efforts to crack down on mortgage brokers in Indiana, which consistently ranks among the top states for foreclosures.
Posted by Marcia Oddi on January 1, 2009 08:51 AM
Posted to Indiana Law
Ind. Decisions - Year-end annexation results in Hamilton County and Jeffersonville
Hamilton County. "Determined Geist group won't end annexation fight: Residents vow to appeal after judge gives Fishers OK to add 2,200 homes" is the headline to this lengthy story today by Carrie Ritchie of the Indianapolis Star that begins:
A judge on Wednesday gave Fishers the green light to annex Geist, prompting residents of the upscale enclave along the reservoir to immediately vow that they would appeal.The story includes a side-bar timeline going back four years.Geist vs. Fishers has been one of the most hotly contested and closely watched annexation battles in Indiana, even prompting a judge in a similar case to put proceedings in his court on hold until the case could be resolved.
Hamilton Superior Court Judge Steven Nation ruled that Fishers showed it could provide adequate fire service and tend to the other municipal needs of the 2,200 Geist homes that would be annexed.
"We were disappointed with the ruling, but we'll take it up to the next level, and we'll kind of go from there," said Geist United Opposition President Pete Peterson.
Jon Laramore, the lead partner in an appellate law practice that's not involved in the case, said appeals in such matters typically don't fare well.
"Those property owners in Geist have a tall mountain to climb to win that appeal," said Laramore, of Baker & Daniels law firm in Downtown Indianapolis.
Geist United has 30 days to file an appeal. The case could take another two years to work its way through the courts, especially if it reaches the Indiana Supreme Court.
An appeal would further delay Carmel's bid to annex Home Place, an unincorporated area roughly centered on 106th Street and Westfield Boulevard in Hamilton County.
reet and Westfield Boulevard in Hamilton County.
In that case, Hamilton Superior Court Judge William Hughes has postponed any decisions until Geist vs. Fishers is resolved.
Here is a long list of earlier ILB entries on annexation.
Jeffersonville. This ILB entry from Tuesday (Dec. 30) quoted a LCJ story that began:
Two areas that Jeffersonville had sought to annex this year could remain independent for another year unless courts allow them to become part of the city by Wednesday.Today Ben Zion Hershberg reports in the LCJ in a story that begins:The areas – the well-established Oak Park Conservancy neighborhood southeast of Middle Road and a roughly 30-acre tract near Stacy Road north of Ind. 62 -- include 7,800 acres and 9,000 residents.
After more than a year in the works, Jeffersonville's annexation of a 30-acre tract near Stacy Road and north of Ind. 62 took effect yesterday when opponents agreed to withdraw their challenge.In return, developer Bob Lynn, who owns the tract, agreed to install a buffer of six-foot pine trees between neighboring Bethany Farms and the Laurel Springs subdivision he plans to build on the property.
Bethany Farms residents have been fighting the annexation in court for more than a year and Lynn's development plans for more than six years. While the annexation case was against Jeffersonville, Lynn intervened as the owner of the property.
"It felt like we got slugged in the gut," Denise Poukish, an opposition leader, said of the residents' decision to finally give up.
Posted by Marcia Oddi on January 1, 2009 08:36 AM
Posted to Indiana Courts
Ind. Decisions - "Death penalty back on table for Corcoran"
The 7th Circuit's decision yesterday in the case of Joseph E. Corcoran v. Buss (see ILB entry here) is the subject of a story today by Rebecca S. Green in the Fort Wayne Journal Gazette that begins:
The state of Indiana can once again reinstate the death penalty against convicted quadruple-murderer Joseph E. Corcoran, according to a 2-1 ruling the U.S. Court of Appeals issued Wednesday.Just over a year ago, the three-judge panel of the U.S. Court of Appeals in Chicago heard arguments about whether Corcoran’s death sentence should be overturned.
In 1999, a jury convicted the then-22-year old Corcoran of four counts of murder. In July 1997, Corcoran shot and killed his brother, James Corcoran, 30; his sister’s fiancé, Robert Scott Turner, 32; and two of his brother’s friends – Timothy G. Bricker, 30; and Douglas A. Stillwell, 30 – at a Bayer Avenue home.
At issue was whether Corcoran, who suffers from paranoid schizophrenia, was mentally competent when he waived his right to have a trial court review his case, and whether his constitutional rights were violated when then-Allen County Prosecutor Robert Gevers offered to take the death penalty off the table if Corcoran would agree to a bench trial rather than a jury trial.
The case has taken many twists leading up to Wednesday’s ruling and it is not likely to be over yet.
Posted by Marcia Oddi on January 1, 2009 08:31 AM
Posted to Ind. (7th Cir.) Decisions
Law - "Law firms' woes likely to last: More layoffs, fewer bonuses may persist with economic slump"
That is the headline from this story today in the Chicago Tribune, reported by Ameet Sachdev. Some quotes:
Much has changed in the structure of law firms since the last law-firm recession in the early 1990s, and industry experts predict the current downturn could be more painful for lawyers. For one, the definition of large law firms has changed. Twenty years ago, the largest firms had 500 lawyers who had grown up together and shared a common history. Today, partnerships are two or three times bigger, geographically dispersed, often built through merger."You have pretty weak glue holding these bigger enterprises together," said William Henderson, associate law professor at Indiana University who specializes in legal labor markets.
A second key change is that law firms have much higher fixed labor costs because of the growth of associate salaries and a new tier of lawyers known as non-equity partners. These are lawyers who offer experience and knowledge to clients and lower billing rates than equity partners.
The average big law firm has 4.3 lawyers to every equity partner, Henderson said, up from 3.65 in 2000. With higher leverage, a decline in revenue per lawyer can become a "combustible combination," he added.
In 2008, there were three notable dissolutions of large firms, including the San Francisco firm Heller Ehrman. Henderson forecasts more blowups in 2009. * * *
The glory days of lockstep raises and big bonuses are over. Latham & Watkins will freeze associate salaries in 2009. Other firms are expected to follow Latham's move because the firm is considered a market leader, industry experts said.
Firms are now paying for bumping first-year associate salaries in 2006 from $125,000 to $160,000. Runaway salaries have dented profits and angered clients who had to pay for the raises through higher fees.
Firms will take a new look at their capital structure. In December, DLA Piper asked its more than 300 non-equity partners to buy shares in the firm by paying $100,000 or more per lawyer. The firm wanted to reduce its debt as well as increase financial incentives for lawyers, Miller said.
"There was no compulsion for us to do what we did," he said. "In these economic times, it's better to have a more solid balance sheet."
Posted by Marcia Oddi on January 1, 2009 08:08 AM
Posted to General Law Related
Wednesday, December 31, 2008
Ind. Decisions - Supreme Court posts one late today, a 3-2 ruling
In State v. Raymond Washington, Jr., an 18-page, 3-2 opinion, Justice Dickson writes:
Pursuant to statutory authority, the State appeals from the trial court order granting the defendant's motion to suppress evidence in a criminal case charging the defendant with possession of marijuana. Upon the granting of the defendant's motion to suppress, the State dismissed the charges and brought this appeal. The Court of Appeals affirmed the trial court in a published opinion. State v. Washington, 875 N.E.2d 278 (Ind. Ct. App. 2007). We granted transfer and now reverse the trial court.The sole issue before this Court is whether, under both the Fourth Amendment to the U.S. Constitution and Article 1, § 11 of the Indiana Constitution, an officer, without reasonable suspicion, can inquire as to possible further criminal activity, in this case drug possession, when a motorist is stopped for a traffic infraction. * * *
1. Federal Constitution Fourth Amendment
The State contends that the question asked by the officer was neither a search nor a seizure and thus did not violate the Fourth Amendment to the United States Constitution. The State argues that the defendant had a choice as to whether to answer the officer‘s question or not, that the question did not extend the duration of the stop, that it was not unduly intrusive into the defendant's privacy, and that it was not unreasonable. * * *
We conclude that the officer's question to the defendant did not violate the Fourth Amendment.
2. Indiana Constitution, Art. I, § 11
The State acknowledges that the Indiana Constitution's prohibition of unreasonable search and seizure, although almost identical in text to its federal counterpart, nevertheless re- quires a different analysis that focuses on the totality of the circumstances, but argues that under such test the officer's conduct here was completely reasonable. The defendant urges that Section 11 should be interpreted to preclude such police conduct because of the important value of individual privacy. * * *
The officer's question whether the defendant held contraband on his person, notwith- standing the absence of reasonable suspicion, was not unreasonable under the totality of the cir- cumstances and did not violate Article 1, Section 11, of the Indiana Constitution.
Conclusion
We reverse the trial court order granting the defendant's motion to suppress. This cause is remanded.
Shepard, C.J., and Sullivan, J., concur.
Boehm, J., dissents with separate opinion. [which concludes] In sum, I believe that the Indiana Constitution requires reasonable suspicion of a separate offense before an officer conducting a traffic stop may broaden the questioning to other subjects beyond those appropriate to process the traffic violation and protect officer safety. Arrests for more serious offenses typically do not afford such wide discretion as to whom to investigate. The extent to which those arrests justify more extensive questioning is a subject for another day.
Rucker, J., dissents with separate opinion.
Posted by Marcia Oddi on December 31, 2008 05:28 PM
Posted to Ind. Sup.Ct. Decisions
Ind. Decisions - COA opinion today raises interesting issue
I have singled out one of the opinions issued today because it raises an interesting issue.
In Randy Gibbs v. State of Indiana , a 22-page, 2-1 opinion, Judge Vaidik writes:
As a result of an online sting operation, Randy Gibbs was convicted of Class B felony attempted sexual misconduct with a minor, Class C felony child solicitation, and Class D felony attempted dissemination of matter harmful to minors. We hold that pursuant to Aplin v. State, 889 N.E.2d 882 (Ind. Ct. App. 2008), reh’g denied, trans. denied, Gibbs cannot be convicted of attempted sexual misconduct with a minor and attempted dissemination of matter harmful to minors because the intended victim was not actually a minor and therefore reverse those convictions. Finding no error in Gibbs' other argument and concluding that he has failed to persuade us that the sentence for his remaining conviction is not inappropriate, we affirm in part and reverse in part. * * *Upon reading this opinion, a reader wrote to point out:The State concedes Aplin is on point but argues it was incorrectly decided. We, however, believe that Aplin was correctly decided. This is especially so since the Indiana Supreme Court denied transfer in Aplin on December 4, 2008. If our General Assembly wanted to penalize defendants for attempting to commit the offense of sexual misconduct with a minor when the victim is an adult the defendant believed to be fourteen or fifteen years old, it could have chosen statutory language similar to that it used in the child solicitation statute, that is, “an individual the person believes to be” a child at least fourteen but less than sixteen years old. See I.C. § 35-42-4-6. However, our General Assembly did not do so. Pursuant to Aplin, the evidence is insufficient to support Gibbs' conviction for attempted sexual misconduct with a minor. * * *
Affirmed in part, reversed in part.
MATHIAS, J., concurs.
MAY, J., dissents with separate opinion. [which begins on p. 14] Because I believe Gibbs' convictions of attempted sexual misconduct with a minor and attempted dissemination of matter harmful to minors should be affirmed, I respectfully dissent in part. I agree with the State that Aplin was wrongly decided.[1] Although an actual child victim is required for a conviction of the completed offense of sexual misconduct with a minor, Aplin did not adequately explain why an actual child is an element of an attempt offense or cite any authority in support of that proposition.
______________
[1] The majority believes Aplin was correctly decided, “especially so since the Indiana Supreme Court denied transfer . . . .” (Slip op. at 8.) Denial of transfer has no precedential value or legal effect other than to terminate the litigation between the parties, and does not necessarily indicate the Supreme Court's agreement with this court's opinion. Wishard Memorial Hosp. v. Kerr, 846 N.E.2d 1083, 1088 n.1 (Ind. Ct. App. 2006). See Ludy v. State, 784 N.E.2d 459, 460 (Ind. 2003), where our Supreme Court unanimously adopted a new rule of law one year after it had denied transfer in a case presenting precisely the same argument.
According to Appellate Rule 58:The reader then pointed to Judge May's dissent as making the same point via case law.B. Effect of the Denial of Transfer. The denial of a Petition to Transfer shall have no legal effect other than to terminate the litigation between the parties in the Supreme Court. . . .
I don't think the denial of transfer enhances the pedigree of a case. Sometimes transfer is sought on a different issue or perhaps even by the other party (in cases where neither got a total victory).
I responded: "I admit I didn't know that - I thought denial of transfer was an affirmation."
To which the reader responded:
I've heard Justice Sullivan say that it means something. Unlike the denial of cert, which happens in thousands of SCOTUS cases that pass mostly through a cert pool, the Indiana justices to read each petition and the underlying court of appeals opinion. Rule 22(B) specifically requires the inclusion of "trans. denied" in citations, which shows it must mean something as well.Any additional thoughts from readers?
Posted by Marcia Oddi on December 31, 2008 12:16 PM
Posted to Ind. App.Ct. Decisions
Ind. Decisions - Court of Appeals issues 7 today (and 16 NFP)
For publication opinions today (7):
In Bart Dewald v. State of Indiana , a 10-page opinion, Judge Vaidik writes:
After a jury trial, Bart A. Dewald [a bail bondsman] was convicted of two counts of Class D felony criminal confinement. On appeal, he challenges the sufficiency of the evidence to support his convictions. First, he contends that the evidence does not show that he confined the victims and, in any event, confining them was not illegal because he had the authority to detain the victims in order to effectively perform his job. Second, he argues that the evidence fails to show that he acted "knowingly" because he believed that he acted within his authority. Concluding that the evidence is sufficient in both of these regards and that Dewald was not authorized to detain the victims, we affirm. * * *Brenda Saalfrank v. Scott Saalfrank - "The trial court did not clearly err in declining to modify Father‘s existing child support obligation. The trial court did not abuse its discretion in determining parenting time or in ordering Mother to pay Father $4070 in attorney fees. Mother‘s appeal was not frivolous or in bad faith. Affirmed. "Dewald‘s contention that he believed that he acted lawfully when he stopped Trovatore and Draper and that he therefore did not commit the crime of confinement "knowingly" is unavailing. "A person engages in conduct 'knowingly‘ if, when he engages in the conduct, he is aware of a high probability that he is doing so." Ind. Code § 35-42-2-2(b). Even if we take Dewald at his word that he fully believed that he was permitted by law to detain third parties when trying to locate his bail customers (which he had no reason under Mishler to believe), it is well-settled that ignorance of the law is no excuse for criminal behavior. [cites omitted] * * *
The evidence is sufficient to support Dewald‘s two convictions for Class D felony criminal confinement. Further, we decline Dewald‘s request that we expand the authority of bail bondsmen to permit them to detain third parties for investigatory purposes. The judgment of the trial court is affirmed.
In State of Indiana v. Charles Tungate and William Reynolds, a 14-page opinion, Judge Robb writes:
In this consolidated appeal involving several drug-related and theft charges, the trial court suppressed evidence seized from Charles Tungate and William Reynolds (the “Defendants”) because the warrants authorizing the seizure of such evidence were not supported by probable cause. On appeal, the State raises the sole issue of whether the trial court properly concluded the warrants were not supported by probable cause. Concluding that there was probable cause to search some, but not all, of the areas described in the warrants, we affirm in part and reverse in part. We also address the proper standard of review to apply in cases such as this where the trial court suppresses evidence after a magistrate determined there was probable cause to issue a warrant. [ILB - see pp. 5-7 of opinion re standard of review.]Randy Gibbs v. State of Indiana - [See separate ILB entry here]
In Jesus A. Valenzuela v. State of Indiana, a 7-page opinion, Judge Najam writes:
[W]e address only the following dispositive issue: whether the trial court sentenced Valenzuela in accordance with the terms of his guilty plea agreement. We reverse and remand for resentencing. * * *Rodney Newkirk v. State of Indiana - "We agree with the trial court that there are no significant mitigators in this case. Therefore, in light of the horrific nature of the offenses and Newkirk‟s demonstrated likelihood to reoffend, we cannot say his sentence is inappropriate. Affirmed."Valenzuela contends that the trial court violated the terms of his plea agreement when it sentenced him to an aggregate sentence of forty-five years, with thirty-two years executed. The State responds that the plea agreement is ambiguous but the course of the parties’ negotiations demonstrates that the thirty-five-year cap recommended by the State only applied to the executed portion of the sentence. We cannot agree with the State that the plea agreement is ambiguous. However, even if it were, we would agree with Valenzuela that that ambiguity is to be construed against the State.
State of Indiana v. Williams Jenkins - " The State appeals the trial court‟s grant of Williams Jenkins' motion to suppress. Specifically, the State contends that because Jenkins, who was arrested for public intoxication and other crimes in the courtyard area of his apartment complex, was intoxicated in a public place, the trial court erred in granting his motion to suppress. We conclude that an outside, unenclosed courtyard area of an apartment complex is sufficiently distinguishable from an interior common area of an apartment building such that State v. Culp, 433 N.E.2d 823 (Ind. Ct. App. 1982), trans. denied, is not controlling. Accordingly, we find that Jenkins was in a public place and reverse the grant of his motion to suppress. "
NFP civil opinions today (4):
Ezra Bradshaw v. Gary Chandler and Affirmative Ins. Co. (NFP) - "Ezra Bradshaw appeals the trial court‟s grant of summary judgment in favor of Affirmative Insurance Company, Bradshaw‟s insurer, disposing of Bradshaw‟s claim for uninsured motorist benefits. On appeal, Bradshaw raises one issue, which we restate as
whether the trial court properly concluded Bradshaw‟s claim was time-barred pursuant to the two-year limitation period of the parties‟ auto insurance policy. We affirm, concluding that the trial court properly found Bradshaw‟s claim was time-barred because it was filed more than two years after the date of the accident, and neither the discovery rule nor Indiana Trial Rule 15(C) control the policy‟s limitation period. "
Paternity of B.C. and H.C. (NFP) - " However, we cannot determine without an offer of proof the nature of the excluded evidence sufficient to determine its relevancy. As a result, we cannot say that the trial court committed plain error by excluding this testimony. Affirmed. "
Gary Community School Corporation v. Lolita Roach-Walker and Victor Walker (NFP)
Sam Gates v. Ronald G. Pierson and Deborah J. Pierson (NFP)
NFP criminal opinions today (12):
Gene Smith v. State of Indiana (NFP)
Jeffrey Puckett v. State of Indiana (NFP)
Christopher Tyler v. State of Indiana (NFP)
Luciano D. Yzaguirre v. State of Indiana (NFP)
Absalom Julius v. State of Indiana (NFP)
Richarh Tyson v. State of Indiana (NFP)
Ronald Daniels v. State of Indiana (NFP)
Victor Salazar v. State of Indiana (NFP)
Cory Mayberry v. State of Indiana (NFP)
Wendell Iddings v. State of Indiana (NFP)
Timothy Harvey v. State of Indiana (NFP)
Deana I. Powell v. State of Indiana (NFP)
Posted by Marcia Oddi on December 31, 2008 12:04 PM
Posted to Ind. App.Ct. Decisions
Ind. Decisions - Two Indiana cases from 7th Circuit at year's end
In Joseph E. Corcoran v. Buss (ND Ind., Judge Sharp), a 33-page, 2-1 opinion, Judge Bauer concludes:
The district court’s finding that Corcoran was competent to waive his post-conviction proceedings is AFFIRMED. However, the decision of the district court to grant Joseph Corcoran habeas relief is REVERSED and REMANDED with instructions to deny the writ, and the State of Indiana is at liberty to reinstate the death penalty.In Rochester Holmes v. Potter (ND Ind., Magistrate Judge Rodovich), a 10-page opinion, Judge Williams writes:[p. 25] WILLIAMS, Circuit Judge, concurring in part and dissenting in part. I agree with the majority regarding Corcoran’s Sixth Amendment claim, and I join that part of the opinion. However, I disagree with my colleagues’ conclusion that Corcoran was competent to waive postconviction review.
Rochester Holmes maintains that his former employer, the United States Postal Service, breached a settlement agreement signed after the mediation of a complaint he brought under the Rehabilitation Act. In particular, he contends that the USPS breached the agreement by requiring him to repay a voluntary withdrawal he had taken from his retirement account, by improperly calculating his retirement amount using his time in the military, and by adjusting his annual leave payment based on an existing negative leave balance. Because the settlement agreement is unambiguous, integrated, and contains no provisions detailing how benefits were to be calculated, the USPS did not breach the agreement. Therefore, we affirm the grant of summary judgment in the USPS’s favor.
Posted by Marcia Oddi on December 31, 2008 11:05 AM
Posted to Ind. (7th Cir.) Decisions
Ind. Courts - "Bradford sworn in for last term as Porter County judge"
James D. Wolf Jr. reports today in the Gary Post-Tribune in a story that begins:
VALPARAISO -- The first swearing-in ceremony in for a Porter County official also marked an end Monday.Judge Roger Bradford announced that the early ceremony would mark the last six years he'll serve in Superior Court 1, ending a career that began in July 1979.
Bradford's announcement followed a comment by Judge Jeffrey L. Thode of Superior Court, who swore Bradford in for the 2009-2015 term, then said, "I hope to be here in six more years and do it one more time."
Bradford replied, "You may be back here in six years, but it won't be swearing in me."
Posted by Marcia Oddi on December 31, 2008 08:55 AM
Posted to Indiana Courts
Ind. Gov't. - Issues continue with state's new welfare eligibility system
A lengthy report today in the Evansville Courier & Press, reported by Bryan Corbin and Eric Bradner, includes the following quotes:
INDIANAPOLIS — Indiana lawmakers say they continue to be inundated with complaints from constituents about the state's new welfare eligibility system.It was supposed to allow Hoosiers in need to sign up by phone or online for Medicaid, food stamps or welfare benefits, but lawmakers field frequent complaints the system loses clients' documents, causes long delays, furnishes incorrect information and is hard for the elderly and disabled to navigate.
Complaints about the Indiana Family and Social Services Administration's welfare modernization program have both Democrats and Republicans proposing the Legislature halt the program from expanding until problems are fixed. * * *
Republican Gov. Mitch Daniels, whose administration negotiated the privatization contract for welfare modernization to deter waste and fraud, was not pleased that legislators of his own party might try to pass a bill to put his program on hold.
"Let me just say, they'd better come here first (to the governor's office) because we are not turning around on this very important reform," Daniels said Dec. 19.
In late 2006, the Daniels administration awarded a team of vendors led by IBM Corp. a $1.16 billion, 10-year contract to process applications for Medicaid, food stamps and welfare benefits that 1.1 million Hoosiers receive.
Replacing most of the caseworkers in county welfare offices, the new system encourages clients instead to apply for benefits on the Web or by phoning call center representatives in Marion, Ind., although county welfare offices remain open.
The privatization rollout has reached 59 counties, including Southwestern Indiana. It has not reached 13 counties in northwestern and north-central Indiana and 20 counties in central Indiana. The date of the next rollout hasn't been decided.
With Evansville already in the rollout area, local legislators say they field multiple complaints each week from constituents and health care providers about problems obtaining or keeping Medicaid benefits, food stamps or Temporary Assistance for Needy Families. Legislators routinely ask the FSSA to review cases to correct mistakes.
While the phone- and Web-based application options work fine for some clients, they are harder to navigate for the elderly or mentally disabled, who might lack Internet access or computer skills. Being placed on hold for long periods is burdensome to those who rely on prepaid cell phone minutes, they said. * * *
FSSA officials repeatedly have stressed they are aware of the complaints and are working hard to address them. The outgoing FSSA secretary, Mitch Roob, said Oct. 22 that legislators' proposals to pause the modernization rollout would be "very unhelpful" and a step backward.
Daniels said the old welfare system was plagued with fraud and abuse, and Indiana faced tens of millions of dollars in federal government penalties if changes weren't made.
"Let me tell you what: They (the legislators) are hearing complaints from people who made money off the past system. That's where the complaints are principally coming from. It wasn't a bad system; it was the worst in America," Daniels said.
Posted by Marcia Oddi on December 31, 2008 08:45 AM
Posted to Indiana Government
Ind. Courts - Delaware Circuit Judge Robert Barnet Jr. issues final sentence
Douglas Walker reports today in the Muncie Star-Press in a story that begins:
MUNCIE -- Convicted felon Darin Joe Wooten had a final comment Tuesday for Judge Robert Barnet Jr., who had just sent him to prison for the second time in 21 years."Have a happy retirement, judge," a handcuffed Wooten said as he was led from the Delaware Circuit Court 3 courtroom by deputies.
Wooten -- given a 10-year sentence after pleading guilty to burglary and other charges -- proved to be the last of hundreds of criminals sent to prison by Barnet over the past three decades.
The 62-year-old judge is retiring today after serving five six-year terms on the bench.
"I'm going to miss all of you people," Barnet told a group of court employees and others who entered the courtroom after the Wooten hearing and gave the judge a round of applause.
"But I'm not going to miss what I've been doing," he added, referring to four sentencing hearings conducted Tuesday.
Posted by Marcia Oddi on December 31, 2008 08:27 AM
Posted to Indiana Courts
Environment - "IDEM suspends grants for pollution prevention, recycling"
Two stories today: Gitte Laasby has this report in the Gary Post-Tribune; Rick Callahan of the AP has this report.
Posted by Marcia Oddi on December 31, 2008 08:22 AM
Posted to Environment
Environment - "Ex-Dana site fueling fears; Angola eyes cleanup plan"
Becky Manley reports today in the Fort Wayne Journal Gazette on the question of who is responsible for cleanup costs at the former Dana Corp. Site near Angola. (For background, see three earlier ILB entries on this issue, the most recent being this entry from Dec. 19th.) From today's story:
Angola officials have been invited to Monday’s Steuben County commissioners meeting to discuss a cost-sharing proposal to clean a former Dana Corp. site of contamination that could threaten the city’s water supply.The permanent cleanup at 203 Weatherhead St., located within Angola’s city limits, could cost from $5.5 million to $7.5 million, Angola Mayor Richard Hickman said.
Currently, a hydraulic system prevents contaminated groundwater and oils from reaching Angola’s city water supply, but Hickman said that operation might shut down in early 2009 when Dana’s bankruptcy proceedings come to a close.
According to Indiana Department of Environmental Management records, Dana closed its Angola operation in 1993.
In 1995, the company entered into a voluntary remediation agreement with the state in which Dana agreed to keep the contaminants from spreading.
Dana operated a brass foundry and manufactured brass parts and fittings, IDEM records said. The site had at least two underground fuel storage tanks, an on-site wastewater treatment plant and a lagoon constructed before 1958 that remained in operation through at least 1973 until it was abandoned, according to IDEM records.
Dana’s agreement with IDEM was a factor behind the decision by Univertical Corp. to relocate its operations from Detroit to the former Dana site in Angola in 1997, according to a letter sent by Univertical President W. Chuck Walker to IDEM in August 2006.
The company’s relocation brought more than 55 jobs to Angola, Walker wrote.
Now, Hickman said, Univertical is poised to purchase another plant in North Carolina. At that point, the company could either bring more jobs to Angola, or the opposite could occur if the local jobs are relocated outside the state.
Univertical officials have made it clear they cannot afford to buy the North Carolina plant and pay for the local cleanup costs, Hickman said.
Hickman said he understands the position taken by Univertical officials and that the city would lose 55 “good-paying jobs” and still be stuck with a contaminated site if the company were to move. * * *
After Dana sought Chapter 11 bankruptcy protection in March 2006, it notified IDEM and Walker that it would shut down the system that keeps the contaminants out of the water supply. The company subsequently agreed to continue to operate the site’s remediation equipment, but Hickman said that may change when Dana’s bankruptcy proceedings end as early as late January.
Now, after two years of review by city officials, Hickman said a proposal is being developed that would split the cost of permanently cleaning the site among the city, county and Univertical.
As of Tuesday, Hickman said it hadn’t been determined exactly how the costs would be divided. * * *
However, before county officials agree to help, officials will need to know how county coffers will be replenished if Univertical were to relocate, Sanders said.
“There’s still a lot of unanswered questions that need to be clarified before we go into it.”
Posted by Marcia Oddi on December 31, 2008 08:13 AM
Posted to Environment
Tuesday, December 30, 2008
Courts - "NY Chief Judge Is Retiring, Leaving Trail of Successes for Women on the Bench"
John Eligon of the NY Times has this report on the retirement of NY State's Chief Judge, Judith S. Kaye. A quote from the lengthy story:
Now, after reaching the mandatory retirement age of 70, Judge Kaye will retire on Wednesday, ending a quarter-century on the bench having vaulted women to new heights in the judiciary.Besides knocking down the last major hurdles for women in the judiciary, Judge Kaye, court observers agree, left a record of successes in her stewardship of the Court of Appeals and in her role as chief executive of one of the largest state court systems in the nation.
She has served longer than any other chief judge in New York history, becoming one of the country’s most highly regarded judges. She was considered by President Bill Clinton for the position of United States attorney general, and at other times for the United States Supreme Court — positions she shunned to remain on New York’s high court.
“She leaves a legacy for advancing the court system into places and dimensions where it had never been,” said Albert M. Rosenblatt, one of Judge Kaye’s former colleagues on the court and the author of a book on the history of judges in the Court of Appeals.
As an administrator, Judge Kaye pushed the court system to address societal problems by creating courts or assigning judges for specific issues like drug abuse, mental health and domestic violence — initiatives that other states followed.
Judge Kaye, appointed by a liberal governor, led the charge to broaden the powers of the State Constitution, supported gay rights and voted against the death penalty.
One of her most noted opinions came on the losing side, in the court’s 2006 decision against gay marriage. Her dissent was cited by the high courts in California and Connecticut when they endorsed gay marriage this year. (Voters in California banned gay marriage by amending the State Constitution last month.)
Posted by Marcia Oddi on December 30, 2008 04:01 PM
Posted to Courts in general
Environment - More on: "Spill renews debate over coal ash: Toxicity, slurry pond safety are questioned"
Updating this ILB entry from Dec. 27th, see this NY Times story today by Shaila Dewan, headed "At Plant in Coal Ash Spill, Toxic Deposits by the Ton ."
Posted by Marcia Oddi on December 30, 2008 03:58 PM
Posted to Environment
Ind. Courts - "Greene Superior Court Judge Dena Benham Martin took her oath of office on Tuesday morning"
"Looking on at left are the couple's two daughters, six-year-old Edan and three-year-old Ande." See the great photo here, via the Greene County Daily World.
Posted by Marcia Oddi on December 30, 2008 12:39 PM
Posted to Indiana Courts
Ind. Decisions - Court of Appeals issues 5 today (and 12 NFP)
For publication opinions today (5):
In State of Indiana v. William Hunter , a 9-page opinion, Judge Darden writes:
As a reserved question of law, the State appeals the trial court's ruling to exclude evidence during a bench trial which resulted in the acquittal of William Hunter on the charge that he committed class A misdemeanor operating a vehicle while intoxicated. We affirm.In Julie McCoy, Janice Buckholtz and Jessica Buckholtz v. American Family Mutual Insurance Co., a 6-page opinion, Judge May writes:Issue: Whether the trial court erred when it excluded the report of blood test results because the State had failed to establish the requisite foundation as to the drawing of Hunter's blood. * * *
[T]he trial court found that the forensic report on the analysis of Hunter's blood was inadmissible because the State failed to establish the requisite foundation under Indiana Code section 9-30-6-6 [which provides a protocol pertaining to the collection/obtaining of bodily substance samples]. * * *
[I]n Combs v. State, 895 N.E.2d 1252, 1255 (Ind. Ct. App. 2008), the appellant argued that “the State failed to lay a proper foundation for admitting” blood test results” because it did not present evidence that the person who drew Combs's blood acted under proper protocol.” We stated that inasmuch as our Supreme Court had noted that “the foundation for admission of laboratory blood drawing and testing results, by statute, involves technical adherence to a physician's directions or to a protocol prepared by a physician,” the foundational requirement of Indiana Code section 9-30-6-6 could “not be ignored.” * * *
Here, as in Combs, the State has failed to present evidence that Nurse VanContron was “acting under the direction of or under a protocol prepared by a physician[.]” I.C. § 9-30-6-6(a). Moreover, unlike in Combs, the State failed to present any evidence that Nurse VanContron was “a person trained in obtaining bodily samples.” Id. Therefore, the inadequacy of the foundation is even more pronounced.
Nevertheless, the State argues that the statute “is inapplicable” here because Nurse VanContron drew Hunter's blood pursuant to a court-authorized warrant. However, it cites no authority for this proposition, and we find none. Further, we do not find that because a search warrant directed hospital personnel to obtain a bodily substance sample, such should not trump and/or negate the legislature's statutory requirements outlining the prescribed protocol for obtaining such samples. The State further argues that the statute is inapplicable because it merely concerns “the proper taking of the bodily substance sample, i.e., how, when and by whom,” which “should have no affect [sic] on the admissibility of the test results in a criminal proceeding” against the person whose bodily substance was taken. Again, we find no merit in such a contention. Indiana statute and common law require a specific evidentiary foundation for the admission of bodily substance sample test results. Here, the State failed to establish that foundation. Affirmed.
Janice Buckholtz and her daughter Jessica Buckholtz obtained a judgment against Julie McCoy, who had a homeowners policy issued by American Family Mutual Insurance Company. American Family sought a declaratory judgment that it did not have to satisfy the judgment. The trial court granted summary judgment for American Family, and we affirm. * * *Tina Sue Day v. State of Indiana - "Tina Sue Day appeals her seventeen-year sentence for Class B felony promoting prostitution. We find nothing inappropriate about a seventeen-year sentence for a woman who accepted cash in exchange for allowing multiple men to molest her twelve-year old daughter. We therefore affirm."The parties agree that McCoy did not own or rent the ATV and she was not operating it at the time of the accident. The Buckholtzes argue the ATV was on loan to McCoy, because it was kept on her property and it was available for her and her children to ride whenever they wished. The ATVs were on the property because Shoemaker resided there, not because they were always on loan to McCoy. Shoemaker might have authorized McCoy to give others permission to ride the ATVs; however, it is undisputed that McCoy was not present while Jessica was riding the ATV. Shoemaker was present, and he presumably could have overridden any permission extended by McCoy. * * *
Shoemaker owned the ATVs, and he was the only one directing the use of the ATVs at the time of the accident. Shoemaker granted temporary use of the ATV to Jessica, and we agree with American Family that the ATV was on loan to Jessica rather than McCoy. Because McCoy did not own, operate, rent, or loan the ATV, the accident falls within the vehicle exclusion, and the trial court did not err by granting summary judgment for American Family.
Troy R. Shaw v. State of Indiana - "The post-conviction court determined trial counsel was not ineffective for objecting to the aggravated battery instruction, nor was appellate counsel ineffective for failing to argue the trial court erred in allowing the charging information to be amended after the omnibus date. Shaw has not shown the evidence leads unerringly to a decision opposite to that reached by the post-conviction court. As a result, we may not set aside the judgment. Affirmed."
In Peg Zaremba v. Jessica and John Nevarez , an 11-page opinion, Judge Brown writes:
Peg Zaremba appeals the trial court's dismissal with prejudice of her claim against Jessica Nevarez and John Nevarez for rent and damages. Zaremba raises two issues, which we consolidate and restate as whether the trial court abused its discretion by denying Zaremba's motion to correct error concerning the trial court's dismissal with prejudice of Zaremba's complaint. We reverse and remand. * * *Small Claims Rule 10 is specific and “[d]ismissal with prejudice is contemplated only when the plaintiff again fails to appear after the claim has been refiled.” Here, the record does not reveal that Zaremba failed to appear after the claim was refiled. Thus, Ind. Small Claims Rule 10(A) does not contemplate dismissal with prejudice under the circumstances. As previously mentioned, the Nevarezes did not file an appellee's brief, and we will not develop arguments on their behalf. With this in mind, we conclude that the trial court abused its discretion by dismissing Zaremba's claim with prejudice and denying Zaremba's motion to correct error. See Multivest, 671 N.E.2d at 201-202 (reversing and remanding for a determination on the merits after a presentation of the evidence). For the foregoing reasons, we reverse the trial court's dismissal of Zaremba's claim against the Nevarezes and remand for proceedings consistent with this opinion. NFP civil opinions today (4):
In Dwyer Instruments Inc. v. James Keller (NFP), a 6-page, 2-1 opinion, Judge Crone concludes:
Here, the trial court did not hold a hearing before it granted Dwyer’s motion to dismiss and granted the motion on the very day it was filed. Thus, Keller was not afforded an opportunity even to file a response or request a hearing to show cause why his case should not be dismissed. It was not until he filed his motion for relief that he was given his day in court and could produce evidence of a meritorious defense regarding his compliance with the discovery order. To its credit, the trial court ultimately granted Keller an opportunity to be heard and set aside its order to dismiss. We cannot say that the trial court abused its discretion in doing so. Accordingly, we affirm.VAIDIK, J., concurs.
KIRSCH, J., dissents with opinion: I respectfully dissent. Gladstone’s admonition that “Justice delayed is justice denied” is often quoted, but too rarely followed. This case is the latest example. The facts giving rise to this case occurred in 2005. In the intervening three and a half years, very little has happened to bring the case to a just and efficient resolution. The plaintiff’s failure to respond in a timely fashion to the defendant’s discovery is the primary reason for the delay. Nothing in the documents before us justifies or explains such delay. As my colleagues note, there is no requirement that a trial court hold a hearing when it dismisses a case under trial Rule 37. I would reverse the trial court’s order setting aside its order of dismissal.Thomas Fine v. Robert G. Harp and Delores C. Harp (NFP) - "We now grant rehearing for the limited purpose of correcting the above-quoted portion of the opinion so as to reflect that Fine originally filed his status report on July 21, 2008 and cured the filing defect on July 29, 2008. We deny the petition for rehearing in all other respects and deny the Harps’ request for attorney fees."
The Marriage of John M. Farrell v. Nicole T. Farrell (NFP) - "John Farrell appeals the modification of his child support. He challenges the court's authority to modify support, the amount of income the court assigned to him, the date from which the court modified payment of college expenses, and the order that he pay a portion of attorney fees for his ex-wife, Nicole. While the court had authority to modify the child support order, the order lacks sufficient clarity for us to determine whether the evidence supports the income assigned to John. Accordingly, we affirm in part, reverse in part, and remand. "
Saiful Sam Islam v. Brenda Colleen Meadows (NFP) - "Saiful Sam Islam (“Father”), pro se, appeals the trial court‟s order dissolving his
marriage to Brenda Meadows (“Mother”). We affirm."NFP criminal opinions today (8):
State of Indiana v. Albert P. Villareal (NFP)
Derek E. Baker, Sr. v. State of Indiana (NFP)
Vincent E. Simon v. State of Indiana (NFP)
Ragena Dennis v. State of Indiana (NFP)
William Cornett v. State of Indiana (NFP)
Timothy Brewer v. State of Indiana (NFP)
Allen E. Vaughn, Jr. v. State of Indiana (NFP)
Joseph G. Ross v. State of Indiana (NFP)
Posted by Marcia Oddi on December 30, 2008 11:17 AM
Posted to Ind. App.Ct. DecisionsInd. Law - Yet more on "Approving a proposed constitutional amendment that would put limits on property-tax bills, so it can be put on the ballot for ratification in 2010"
Updating this ILB entry from Dec. 7th, Bryan Corbin of the Evansville Courier & Press reports today in a lengthy story that begins:
INDIANAPOLIS — Property tax caps passed in March by the Indiana Legislature were praised at the time as a money-saver for homeowners but also reviled by some officials because they ratcheted down the flow of dollars to local government services.As the Legislature convenes Jan. 7, the other shoe is about to drop. Lawmakers will be asked to begin the process to write those property tax caps into the state constitution.
The difference is significant: A law, or statute, can be overturned through majority votes of the House and Senate, along with a governor's signature. An amendment to the state constitution, once ratified, is much harder and more time-consuming to reverse.
Supporters say amending the property tax caps into the constitution would protect taxpayers and prevent the statutory caps from ever being overturned in court as unconstitutional.
"This is an extremely important objective. I think it's better for everyone here if the General Assembly finishes its part of this process now," said Republican Gov. Mitch Daniels, who originally proposed the tax caps in his relief plan last year.
Opponents say more time is needed to determine the caps' effect on funding local governments and public safety, so they advocate waiting a year.
"One needs to know what the impacts are before we unilaterally stick it in the constitution," said Rep. Russ Stilwell, D-Boonville.
Posted by Marcia Oddi on December 30, 2008 10:57 AM
Posted to Indiana LawInd. Gov't. - Valid driver's license in tragedy baffled some
A story Saturday, Dec. 27 in the Evansville Courier & Press, reported by Libby Keeling, included the following:
Prosecutors say they are puzzled over why the driver of a car that caused a fatal, head-on crash on Green River Road on Thursday night had an Indiana driver's license.Today the same reporter has a story headed "County Clerk Kirk takes blame for error." Some quotes:Court records indicate Daniel Joe English II, 34, of Evansville had a history of alcohol-related arrests and had been adjudged a habitual traffic offender in 2005. His driving privileges were suspended for life by Vanderburgh Superior Court. * * *
"I don't see how that can be ...," said Vanderburgh Deputy Prosecutor Camala Cooley, who is assigned to the case. "I've never seen this, but I have seen where the (Bureau of Motor Vehicles) records may not be completely accurate. ...
"Monday, I'll probably have one of our investigators contact the BMV and see what their records show, and that can be an additional charge that we can have against him."
Daniel Joe English II apparently had a valid Indiana driver's license on Christmas night, when his drunken driving allegedly caused an accident that killed another driver on Green River Road.But the 34-year-old Evansville man's license had been suspended for life three years ago in Vanderburgh Superior Court.
The Indiana Bureau of Motor Vehicles issued a news release Monday maintaining it had no record of English's court-ordered suspension.
The county clerk also issued a statement Monday acknowledging the office had made a mistake.