Friday, November 20, 2009
Ind. Courts - "Video explains the process of Alternative Dispute Resolution (sometimes known as Mediation) to settle court cases in Indiana"
The program, "Alternative Dispute Resolution: Real Dialogue. Real Answers," was developed by the Indiana Supreme Court to give people involved in family law cases an overview of the options available for resolving their cases outside of court. It consists of 10 videos, each under 3 minutes long.
Another program in the series is "Family Matters: Choosing to Represent Yourself in Court," access it here.
Posted by Marcia Oddi on November 20, 2009 01:35 PM
Posted to Indiana Courts
Ind. Decisions - 7th Circuit decides one Indiana case today
In Scruggs v. Garst Seed Co. (ND Ind. J. Sharp), a 15-page opinion, Judge Williams writes:
Dayna Scruggs appeals from the grant of summary judgment in favor of her former employer, Garst Seed Company, on her claims of retaliation and a hostile work environment. A company-wide restructuring eliminated her position before she filed a charge of discrimination, so the company did not retaliate against her for filing the discrimination charge when it eliminated her position. In addition, although she contends the company also retaliated against her when it did not hire her for one of the open positions after the restructuring, Garst hired the person who had previously held the position. The incumbent was experienced in the job, and Scruggs has not created an issue for trial that the hiring decision was pretextual. Finally, the relatively isolated gender-based comments and remarks Scruggs’s supervisor directed toward her were not sufficiently severe or pervasive to rise to the level of a hostile work environment. Therefore, we affirm the judgment of the district court.
Posted by Marcia Oddi on November 20, 2009 11:52 AM
Posted to Ind. (7th Cir.) Decisions
Ind. Decisions - Court of Appeals issues 0 today (and 9 NFP)
For publication opinions today (0):
NFP civil opinions today (4):
W. Kenneth Baldwin, et al. v. Kimberly A. Gilbert, et al. (NFP)
Donald W. Snover v. Linda K. Snover (NFP)
In the Matter of D.K., A.S.K., and T.M.K.; and L.D.G. v. Ind. Dept. of Child Svcs. (NFP)
NFP criminal opinions today (5):
Sergio Neri-Ortiz v. State of Indiana (NFP)
Pablo G. Madrigal v. State of Indiana (NFP)
Brian Hedback v. State of Indiana (NFP)
Ryan Thurman v. State of Indiana (NFP)
Joey Bolden v. State of Indiana (NFP)
Posted by Marcia Oddi on November 20, 2009 09:54 AM
Posted to Ind. App.Ct. Decisions
Ind. Courts - Indiana AG joins federal-and-state task force intended to thwart mortgage fraud and other financial crimes
See the press release from Nov. 18th here. See also this Nov. 19th story from the Las Vegas Sun, headed "FBI looking at hundreds in mortgage schemes: Fraud squad targeting cases involving millions of dollars, many victims."
Posted by Marcia Oddi on November 20, 2009 09:05 AM
Posted to Indiana Courts
Courts - Still more on the McDonald v. Chicago cert grant
Updating this ILB entry from Oct. 1, 2009, Ashby Jones of the WSJ Law Blog had this entry yesterday headed "Will Gun-Control Case Prompt a Constitutional Reawakening?" It begins:
Our interest in a single Supreme Court case has perhaps never been as high as it is in a case currently being briefed. The issues are fascinating on several levels, and the potential impact of a ruling is big.[More] See also this posting by Lyle Denniston of SCOTUSLaw, originally posted Nov. 16, but updated.The case is McDonald v. City of Chicago, for which the court granted cert on Sept. 30. The petitioners in the case, a group challenging a gun-control ordinance in Chicago, filed their brief with the court earlier this week. Were the court to adopt their position — something well within the realm of possibility — we could be looking at a significant shift in the way the justices view the Constitution and individual rights.
Posted by Marcia Oddi on November 20, 2009 08:58 AM
Posted to Courts in general
Ind. Decisions - Re the COA decision in Ankeny v. Governor
The Court of Appeals decision Nov. 12th in the case of Steve Ankeny and Bill Kruse v. Governor of the State of Indiana (see ILB summary here - 2nd case), has been the subject of several favorable items. From a Seattle Times editorial dated Nov. 19, 2009:
In the Indiana case, Ankeny v. Governor of Indiana, the birthers argued a different thing: that a "natural-born citizen" could not have a foreign parent. And in 1961, Obama's father, a Kenyan, was a subject of the British Empire.From Eugene Volokh, founder of highly regarded law profs blog, The Volokh Conspiracy, this entry:The Constitution doesn't say what a natural-born citizen is. The Indiana court dug into the history of U.S. and English common law, and produced the following distinction. There are two kinds of citizens: naturalized, who become citizens after they are born; and natural-born, who are citizens at birth.
All citizens at birth are natural-born. That is the rule used by the Indiana court. By U.S. law, you can be born in Uzbekistan and if you have one American parent who had been American and lived in the United States for a minimum period of time before you were born, you are American.
The Indiana ruling had a footnote. Obama is not the first U.S. president who had a noncitizen parent. "Chester A. Arthur, the twenty-first U.S. President, was born of a mother who was a United States citizen and a father who was an Irish citizen."
Indiana Court of Appeals Rejects Claim That “Because His Father Was a Citizen of the United Kingdom, President Obama Is [Not a Natural Born Citizen and Therefore] Constitutionally Ineligible to Assume the Office of the President” - The decision is Ankeny v. Governor, handed down last Thursday. The opinion is pretty detailed, and is the only substantive opinion I know of in a case challenging President Obama’s eligibility (since the other cases, including the ones that assert that he wasn’t born within the U.S., have been rejected on procedural grounds, such as ones related to standing). The court’s reasoning strikes me as quite persuasive.
Posted by Marcia Oddi on November 20, 2009 08:36 AM
Posted to Ind. App.Ct. Decisions
Ind. Courts - "Hamilton qualified to judge"
That is the headline to this editorial today in the Fort Wayne Journal Gazette. Some quotes:
Congress’ approval of a Hoosier judge to the federal appeals court is a welcome, if belated, triumph of good government over partisan sniping.Sen. Richard Lugar, rightly and courageously, bucked his party leadership and stood up for U.S. District Judge David Hamilton. The Republican senator, known for his intelligence and willingness to support what is right – rather than blindly support his party – dissected arguments against Hamilton in an 18-minute speech before the Senate on Monday.
Perhaps partly because of the respect Lugar holds among the Senate, nine other GOP senators joined him in a 70-29 vote Tuesday to end the filibuster and open the door – finally – to his confirmation on Thursday.
The effort to block the nomination of Hamilton to the 7th Circuit U.S. Court of Appeals in Chicago had little to do with qualifications and ability. Instead, the filibuster was because of the opponents’ partisanship, conservative ideology and hopes of slowing President Obama’s efforts to fill desperately needed federal judgeships. It is no coincidence that Hamilton was Obama’s first nominee to the court of appeals. * * *
Of Obama’s 26 judicial nominations, only five have been confirmed. Hamilton is a well qualified, moderate judge, and his confirmation was long overdue. With luck, senators will now allow Obama to replenish the vacant judicial seats.
Posted by Marcia Oddi on November 20, 2009 08:30 AM
Posted to Indiana Courts
Thursday, November 19, 2009
Ind. Courts - Senate debate underway on Hamilton nomination [Updated]
Final debate is now underway for the "up or down" U.S. Senate vote on the David Hamilton nomination.
2:30 PM - The roll call has begun.
2:55 PM - It looks to be a straight party-line vote ...
2:58 PM - Nomination is confirmed 59-39.
[Updated at 3:50 PM] Here is the roll call #350. All 39 NAYs were republican; of the 59 YEAS, one was republican (Lugar), the remainder were D or I. Two senators, both Ds, did not vote, Baucus and Byrd.
[Updated 5:48 PM] Here is Warren Richey's story from the Christian Science Monitor.
Posted by Marcia Oddi on November 19, 2009 02:24 PM
Posted to Indiana Courts
Law - "Chicago's Camera Network Is Everywhere: Extensive Surveillance System Integrates Nonpolice Video, Raises Concerns About Possible Privacy Abuses"
From today's WSJ, this story by William M. Bulkeley, reporting that not only are there video cameras all over Chicago, but they are linked together into a giant web. The long story begins:
A giant web of video-surveillance cameras has spread across Chicago, aiding police in the pursuit of criminals but raising fears that the City of Big Shoulders is becoming the City of Big Brother.While many police forces are boosting video monitoring, video-surveillance experts believe Chicago has gone further than any other U.S. city in merging computer and video technology to police the streets. The networked system is also unusual because of its scope and the integration of nonpolice cameras.
The city links the 1,500 cameras that police have placed in trouble spots with thousands more—police won't say how many—that have been installed by other government agencies and the private sector in city buses, businesses, public schools, subway stations, housing projects and elsewhere. Even home owners can contribute camera feeds.
Rajiv Shah, an adjunct professor at the University of Illinois at Chicago who has studied the issue, estimates that 15,000 cameras have been connected in what the city calls Operation Virtual Shield, its fiber-optic video-network loop.
The system is too vast for real-time monitoring by police staffers. But each time a citizen makes an emergency call, which happens about 15,000 times a day, the system identifies the caller's location and instantly puts a video feed from the nearest camera up on a screen to the left of the emergency operator's main terminal. The feeds, including ones that weren't viewed in real time, can be accessed for possible evidence in criminal cases.
Posted by Marcia Oddi on November 19, 2009 02:12 PM
Posted to General Law Related
Law - More on: Federal golf cart subsidies
Updating this Oct. 18, 2009 ILB entry, which ended with quotes from a WSJ story about federal and state tax credts for golf carts, today's Cincinnati Enquirer has a long story by Mike Boyer headed "Tax credit spurs interest in electric carts." Some quotes:
FAIRFIELD – Gary Metcalf is used to stares as he tools around his neighborhood on his gasoline-powered, four-seater golf cart.“Everybody wants to stop and talk to you, and it’s a good way to save on gas,” says Metcalf, owner of Gary’s Gun Shop in Fairfield.
Metcalf is one of a growing number turning to gas- and electric-powered golf carts and other low-speed vehicles for personal transportation. Golf carts have been used for personal transit in senior communities and other relatively small, closed-in areas for decades. But rising fuel costs, increasing attention on reducing pollution and federal income tax credits on some low-speed electric vehicles are putting a new charge into the market. * * *
Year-old federal income tax rules also offer credits of $5,000 or more for the purchase or lease of certain plug-in electric vehicles that go no faster than 25 miles per hour. Models from about 10 low-speed electric vehicle makers have been qualified for the tax credits by the IRS. Golf carts don’t qualify for the credit. Eligible vehicles, which can run for up to operate 30-40 miles between charges, are limited to streets posted at no more than 35 mile per hour and can cost $12,000 or more depending how they’re equipped.
If authorized by local ordinances, state motor vehicle laws also allow traditional golf carts, when inspected and equipped with proper vehicle safety equipment, to be licensed and registered for use on roads posted at 35 miles per hour or less.
FAIRFIELD – Gary Metcalf is used to stares as he tools around his neighborhood on his gasoline-powered, four-seater golf cart.
“Everybody wants to stop and talk to you, and it’s a good way to save on gas,” says Metcalf, owner of Gary’s Gun Shop in Fairfield.
Metcalf is one of a growing number turning to gas- and electric-powered golf carts and other low-speed vehicles for personal transportation. Golf carts have been used for personal transit in senior communities and other relatively small, closed-in areas for decades. But rising fuel costs, increasing attention on reducing pollution and federal income tax credits on some low-speed electric vehicles are putting a new charge into the market.
“It’s a growing phenomenon,” says Roy Kasler, president of Mid Ohio Golf Car, a Yamaha cart dealer outside Columbus who also markets across most of southern Ohio, including Cincinnati.
Golf carts for personal transportation are still a small percentage of the thousands of golf carts that Kasler sells and rents annually. But “people are finding it’s fun and convenient,” he says.
Kasler and Metcalf say there’s a social aspect to using a golf cart that’s not there driving a faster-moving car.
“Nobody knows their neighbors any more,” Metcalf says. “When you’re in a golf cart you can stop and talk to people.”
Kasler says some golf cart enthusiasts hold community parades and rallies.
Year-old federal income tax rules also offer credits of $5,000 or more for the purchase or lease of certain plug-in electric vehicles that go no faster than 25 miles per hour. Models from about 10 low-speed electric vehicle makers have been qualified for the tax credits by the IRS. Golf carts don’t qualify for the credit. Eligible vehicles, which can run for up to operate 30-40 miles between charges, are limited to streets posted at no more than 35 mile per hour and can cost $12,000 or more depending how they’re equipped.
If authorized by local ordinances, state motor vehicle laws also allow traditional golf carts, when inspected and equipped with proper vehicle safety equipment, to be licensed and registered for use on roads posted at 35 miles per hour or less.
(2 of 3)That’s what Metcalf and a number of other motorists in Ohio, Kentucky and Indiana are doing. Just how many is unclear. Because the golf carts are registered as regular motor vehicles, vehicle registration agencies don’t break them out separately. * * *
Mike Lawrence, owner of Lawrence Motorsports in Lawrenceburg, estimates he’s outfitted a couple dozen golf carts over the past year and a half for street use. Retrofitting costs about $1,000 on top of the cart and includes adding a windshield, front and rear lights, brake lights and seat belts. The variations in local rules create a minefield for distributors, Kasler says. His company advises customers to find out what their municipality requires before buying a golf cart.
Gary Eichler Jr. of Gary Eichler Golf Center in Hamilton, says his company has equipped about two dozen golf carts for street use. He says it’s cheaper to buy and equip a used golf cart for the street than to buy a new electric low-speed vehicle even after the federal income tax credit.
A new gas or electric golf cart costs about $5,000. A used model costs about half that and can be equipped for street use for less than $1,000, he says. A gas-powered cart, with a 4-cylinder engine and a 7-gallon tank can go about 200 miles between fill-ups. Eichler says they’re cheaper to operate than electric models.
The City of Rising Sun along the Ohio River was one of the first communities in Southeast Indiana to permit golf carts on city streets. Mayor Bill Marksberry says about 20 golf carts have been permitted since Rising Sun enacted its ordinance a year ago. Rising Sun police have a unit equipped with emergency flashers.
“If every community in the United States did this, it would help reduce our consumption of oil,” Marksberry says. The larger of two federal income tax credits for qualified plug-in electric-powered vehicles, which look more like small cars than golf carts, is set to expire at year’s end. The bad news for fans of these vehicles: They’re almost impossible to find now.
Posted by Marcia Oddi on November 19, 2009 01:44 PM
Posted to General Law Related
Courts - Still more on: In Kansas, the Mortgage Machine Backfires; MERS issue raised in Indiana
This Oct. 10, 2009 ILB entry includes a quote from the Boston Globe from Oct. 9th (from a Globe story still available)that began:
A court decision expected as soon as today could negate the validity of sales of thousands of foreclosed homes in Massachusetts, causing havoc for buyers and sellers and further stalling the housing market’s recovery in hard-hit areas.Sheri Qualters of The National Law Journal has a story today headed "Defective Paperwork Strips Mortgage Holder of Foreclosure Rights." Some quotes [emphasis by ILB]:At issue is proof of ownership at the time of a foreclosure sale. During the housing boom, millions of mortgages were bundled into bonds and sold to investors, a process that resulted in lengthy and twisted paper trails that can obscure ownership. Many lenders believed they could complete foreclosure transactions and later produce formal proof they held the mortgage.
That changed in March when Justice Keith C. Long of Massachusetts Land Court found that two foreclosures in Springfield were invalid because ownership of the mortgages was not clear at the time of the foreclosures.
A Massachusetts federal judge has upheld a bankruptcy court ruling allowing a trustee to treat a mortgage as an unsecured claim, which strips the mortgage holder of foreclosure rights, because of defective mortgage paperwork.In a Nov. 17 order, District Court Judge Patti Saris affirmed a bankruptcy court order denying the plaintiffs' request to send a question of law to the Supreme Judicial Court of Massachusetts. The case is Mortgage Electronic Registration Systems Inc. (MERS) v. Warren E. Agin, trustee.
The plaintiffs wanted the state high court's take on whether the omission of a borrower's name on an acknowledgement form, which a notary public uses to confirm the identity of the borrower, is a "material defect" that voids the mortgage.
In Massachusetts, deeds or mortgages recorded at a county registry of deeds must have a properly executed acknowledgment form.
One of the plaintiffs in the June 3 bankruptcy court appeal is MERS, which runs a national mortgage electronic registration system that simplifies the selling or trading residential or commercial mortgage loans. The other plaintiff is the actual lender, Countrywide Home Loans Inc., which Bank of America Corp. acquired in 2008.
The ruling concerned a mortgage held by debtor Mathew Giroux, who filed a voluntary Chapter 7 case in bankruptcy court in Massachusetts on June 27, 2008. The bankruptcy court granted the trustee's motion for summary judgment on May 21, which allowed him to treat the mortgage as a unsecured debt.
Saris agreed with the bankruptcy court that Massachusetts case law holds that the state "requires strict formalities in the execution of acknowledgements."
Saris also agreed with the bankruptcy court that Massachusetts courts are likely to follow a 2004 6th U.S. Circuit Court of Appeals decision, In re Biggs, which held that omitting the lender's name in an acknowledgement was not a "purposeless formality."
"Although the question of the acknowledgment's validity is a determinative issue, the Court finds the outcome in the state court to be reasonably clear," Saris wrote.
Cases about the issue have also cropped up in federal courts in other jurisdictions, said the trustee's lawyer, Jeffrey J. Cymrot of Boston-based Sassoon & Cymrott. Cymrot said he's also working on a similar pending case.
"It's largely due to pushing mortgages through the system," Cymrot said. "I don't think it's rare."
The case shows that sloppy execution of mortgage documents has consequences in bankruptcy cases, Cymrot said.
He also said the central question is analogous to that in cases challenging foreclosures because of defective documents that have cropped up in recent months. "It's related, but it's another type of sloppiness," Cymrot said.
Posted by Marcia Oddi on November 19, 2009 01:26 PM
Posted to Courts in general
Ind. Decisions - Court of Appeals issues 1 today (and 11 NFP)
For publication opinions today (1):
In Morton P. Maish v. State of Indiana , a 10-page opinion, Judge Brown writes:
“The question . . . is whether the inferences supporting the judgment were reasonable, not whether there were other "more reasonable" inferences that could have been made.” Brink v. State, 837 N.E.2d 192, 197 (Ind. Ct. App. 2005) (quoting Thompson v. State, 804 N.E.2d 1146, 1150 (Ind. 2004)), trans. denied. “Reaching alternative inferences such as this is a function of the trier of fact, not this Court. We cannot reverse the conviction merely because this inference is a plausible one that might have been drawn from the evidence.” Id. * * *NFP civil opinions today (5):While the jury could have made different inferences from the evidence, we cannot say that the inference made by the jury here—that Maish was the one who transferred cocaine to Pence—was unreasonable. Based upon our review of the record, we conclude that evidence of probative value existed from which the jury could have found beyond a reasonable doubt that Maish committed dealing in cocaine as a class B felony.
Nathan and Kimberly Stevens v. A. Elaine McDonald, John Samuel, et al (NFP) - "Nathan and Kimberly Stevens appeal from a grant of summary judgment in favor of their neighbors, Samuel, John, and Elaine McDonald and John and Susan Grant (collectively, the Complainants) in the Complainants' action to enforce restrictive covenants. The Stevenses challenge the propriety of the grant of summary judgment as the sole issue on appeal. We affirm.
Starr Scott Amico v. Review Board of the Ind. Dept. of Workforce Development, et al. (NFP) "The sole issue presented for our review is whether the Review Board properly affirmed the decision of an administrative law judge (“ALJ”) dismissing Scott’s appeal as untimely. We affirm."
In re: R.C. and L.C.; D.C. v. Marion Co. Dept. of Child Svcs. (NFP)
Domus Properties v. Jason Cook (NFP)
Term. of Parent-Child Rel. of R.B.; R.D. v. IDCS (NFP)
NFP criminal opinions today (6):
In State of Indiana v. Natalie Medley (NFP), a 19-page opinion, Judge Crone writes:
Medley's testimony that she asked for an attorney on February 26 does not, standing alone, demonstrate that a motion to suppress her February 27 confession based on a re-initiation of interrogation theory would have been granted, and therefore the post-conviction court's determination that counsel's omission constitutes deficient performance is clearly erroneous. We therefore reverse the post-conviction court's conclusion that Medley received ineffective assistance of trial counsel.Shaun L. Steele v. State of Indiana (NFP)The post-conviction court also concluded that
had this Court not found that Ms. Medley should receive a new trial, the Court could have found and Ordered the Marion County Prosecutor to seek to reduce Ms. Medley's sentence and to produce evidence at the re-sentencing hearing of Ms. Medley's cooperation with the State and testimony against Marshaun Buggs, resulting in his conviction for the murder of Reginald Moore.Appellant's Br. at 34. The State asserts that the post-conviction court is barred from issuing such an order by Article 3, Section 1 of the Indiana Constitution, which prohibits the three branches of governmentthe legislative, executive, and judicialfrom exercising the functions of the others. We agree. See Williams v. State, 669 N.E.2d 1372, 1378 (Ind. 1996) (“[T]he trial judge may not assume an adversarial role in the proceedings. In fact, to the extent that intervention by the trial court in the proceedings would constitute exercising the prosecutorial function, it would violate the separation of powers or functions article of the Indiana constitution.”) (citations omitted); Beanblossom v. State, 637 N.E.2d 1345, 1348-49 (Ind. Ct. App. 1994) (observing that case law indicates that trial court does not hold inherent judicial power to modify sentence); see also Ind. Code § 35-38-1-17 (“If more than three hundred sixty-five (365) days have elapsed since the convicted person began serving the sentence and after a hearing at which the convicted person is present, the court may reduce or suspend the sentence, subject to the approval of the prosecuting attorney....”). We therefore reverse the post-conviction court's alternative relief.
D.S. v. State of Indiana (NFP)
Andre Dixon v. State of Indiana (NFP)
William T. Padgett, Jr. v. State of Indiana (NFP)
Steven T. Marbley-El v. State of Indiana (NFP)
Posted by Marcia Oddi on November 19, 2009 12:57 PM
Posted to Ind. App.Ct. Decisions
Courts - "Justice Sotomayor adds celebrity to court"
The Washington Post on Nov. 17th had this lengthy story reported by Jesse J. Holland of the AP. Some quotes:
WASHINGTON -- Apparently, no one told Sonia Sotomayor that Supreme Court justices are supposed to be circumspect, emerging from their marble palace mainly to dispense legal wisdom to law schools, judges' conferences and lawyers' meetings.Since becoming the first Hispanic justice, Sotomayor has mamboed with movie stars, exchanged smooches with musicians at the White House and thrown out the first pitch for her beloved New York Yankees. A famous jazz composer even wrote a song about her: "Wise Latina Woman."
In short, Sotomayor has become a celebrity - all without having made a single major decision at the nation's highest court.
It's not that other justices don't have their own particular glamour.
Ruth Bader Ginsburg and Antonin Scalia - both opera lovers - recently had roles in the opening performance of "Ariadne auf Naxos" for the Washington National Opera. Other justices have done tours to promote their books.
But that kind of fame rarely reaches the man on the street. * * *
It's not as if Sotomayor is pushing this public recognition.
In fact, apart from a C-SPAN program that interviewed all the justices, she is refusing television, magazine and newspaper interview requests, including a request for comment from The Associated Press for this story. Sotomayor even nixed plans by famed photographer Annie Liebowitz to shoot her for a photo spread in Vogue magazine.
She did allow Latina magazine to photograph her inside the Supreme Court building, but wouldn't submit to a formal interview even though a friend wrote the accompanying article. Wearing her black robe, the justice appeared on the cover of the latest issue prominently displaying her bright red fingernails, which White House aides had persuaded her to repolish in a demure neutral shade last July for her Senate confirmation hearing.
Even though she's avoided interviews, people recognize her everywhere. "There are people who can identify her in a line of pictures who couldn't identify some of the people who are big movie stars," Thompson said.
Part of the adulation stems from the historic nature of her appointment: the first Hispanic on the court, and only the third female, after retired Justice Sandra Day O'Connor and current Justice Ruth Bader Ginsburg.
Posted by Marcia Oddi on November 19, 2009 12:35 PM
Posted to Courts in general
Environment - IDEM and its chief in the news
Updating this ILB entry from Nov. 15th, headed "Gary Post-Tribune alleges steel company gets special treatment because of IDEM commissioner," the Fort Wayne Journal Gazette has an editorial today titled "IDEM chief’s toxic pile." It reads:
Many Hoosiers gave Tom Easterly the benefit of the doubt that he would put his duty to protect the environment before business interests as director of the Indiana Department of Environmental Management. It appears he is taking unfair advantage of their generous nature.The Gary P-T story on missing public records on waste is quoted in this ILB entry from Nov. 16th.Easterly owes Indiana residents an immediate and complete explanation about a pile of toxic steelmaking waste at ArcelorMittal in Burns Harbor, why it’s difficult to find documents related to the waste and why IDEM is failing to compel the company to comply with state environmental regulations.
Many environmental advocates – and this page – encouraged guarded optimism in Easterly’s pledge to protect Indiana’s environment when Gov. Mitch Daniels appointed him as IDEM commissioner in 2005. There was reason for doubt given he was in charge of environmental issues at Bethlehem Steel – one of ArcelorMittal’s predecessors – from 1994 to 2000.
A series of stories by environmental reporter Gitte Laasby that ran in the Post-Tribune of Northwest Indiana this week adds to the concern about Easterly’s leadership at IDEM. There is a 35-foot-tall tower of steelmaking waste at ArcelorMittal in Burns Harbor. Contrary to state law, parts of the mountain of waste have sat there as long as two decades. The heap, dubbed “Easterly’s pile” because it was started under his watch as environmental manager at Bethlehem Steel, sits about 200 feet from the Indiana Dunes National Lakeshore and Lake Michigan. It includes toxins such as lead, chromium, cadmium, silver and nickel and is exposed to the elements, likely contaminating the nearby air, soil and water.
An IDEM inspector visited the plant twice in 2008 and found the violations, but no enforcement action has occurred.
As the state’s top environmental regulator, Easterly is now responsible for oversight of his former employer. The concentration of the contamination in the pile likely requires landfill disposal. Open dumping of the waste is illegal under state and federal laws.
Equally concerning is that public records related to the waste pile appear to be missing.
So far, Easterly has refused to comment on the waste pile in Burns Harbor.
Easterly’s pile only adds to the growing list of failures of the Daniels administration to demonstrate a commitment to protecting the environment. Good environmental stewardship is what is best for Indiana’s economy. Easterly’s environmental protection failures are giving Hoosiers too many reasons to regret giving him their guarded trust.
See also this P-T editorial from Nov. 17th, which includes the following:
Since Daniels came into office, under the direction of Easterly and his boss, Indiana has:* Closed the IDEM office of enforcement.
* Weakened enforcement rules, making it necessary to demonstrate environmental degradation before the state takes action.
* Ended contracts with local air pollution monitors, including some in Hammond and Gary.
* Removed nearly all references about global warming in the state's educational material for kids.
* Appointed a coal industry attorney as IDEM's lead counsel.
* Fast-tracked the BP Whiting expansion permit, weakening it in the process and potentially endangering the much-needed capital project.
Posted by Marcia Oddi on November 19, 2009 12:24 PM
Posted to Environment
Ind. Decisions - One today from 7th Circuit
In U.S. v. Leroy F. Miller (ND Ind., CJ Miller), a 5-page opinion, Judge Easterbrook writes:
Leroy Miller was convicted of aiding and abetting the possession of firearms by Ricky Fines, a felon. Last year we affirmed Miller’s conviction and 10-month sentence. 547 F.3d 718 (7th Cir. 2008). Miller then asked the district court to return the 34 firearms that had been seized at his farm. See Fed. R. Crim. P. 41(g). To retain them, Miller contended, the United States needs an order of forfeiture—but forfeiture may be initiated only within 120 days of the seizure. 18 U.S.C. §924(d)(1). A timely administrative proceeding was filed but abandoned; the United States concedes that it was defective. The indictment, which includes a count seeking forfeiture, was returned more than 120 days after the seizure. The United States acknowledges that it is too late to commence a forfeiture proceeding. But it maintains that the district court nevertheless must order the functional equivalent of forfeiture, because Miller’s felony conviction prevents him from possessing the weapons and makes their return unlawful.Miller responded by asking the district judge to order the United States to sell the weapons for his account or deliver them to someone legally entitled to possess them. The judge declined and instead authorized the United States to destroy the guns. 2009 U.S. Dist. LEXIS 39458 (N.D. Ind. Apr. 28, 2009). The judge concluded that the United States is not obliged to act as a felon’s auctioneer, and that handing the guns over to one of Miller’s relatives would leave him in constructive possession, which would be as unlawful as physical possession. The judge recognized that the United States, having missed the statute of limitations for initiating a forfeiture proceeding, has no legal entitlement to the weapons. Forced to choose between unlawful outcomes, the judge thought it best for the United States to destroy the guns. Miller’s appropriate remedy, the judge thought, would be to collect just compensation from the United States for a taking. (The judge suggested a suit under 42 U.S.C. §1983, but as that statute applies only to state actors the judge surely meant a suit under the Tucker Act, 28 U.S.C. §§ 1346(a)(2), 1491.)
The district court’s disposition finds support in the decisions of two circuits. * * *
It is hard to see how either the United States or Miller can be made better off by replacing an actual sale with litigation in which the parties will offer expert evaluations of the weapons’ market value, and the Treasury will be out of pocket that amount (because destroying the guns does not produce any revenue to cover the cost of a judgment under the Tucker Act).
More than that. We do not see why all alternatives to sale or destruction necessarily would be unlawful. * * *
Because the United States did not commence a timely forfeiture proceeding, Miller’s property interest in the firearms continues even though his possessory interest has been curtailed. If the United States does not want to sell them for his account, then it must offer Miller some other lawful option: having a trustee sell or hold the guns, or giving them to someone who can be relied on to treat them as his own. The judgment of the district court is vacated, and the case is remanded for further proceedings consistent with this opinion. 11-19-
Posted by Marcia Oddi on November 19, 2009 12:14 PM
Posted to Indiana Decisions
Ind. Courts - Still more on "Madison Co. prosecutor denies alleged misconduct"
Updating this ILB entry from Jan. 8, 2009, Christina M. Wright of the Anderson Herald-Bulletin reported yesterday:
ANDERSON, Ind. — An Indiana Supreme Court official has recommended that Madison County Prosecutor Thomas Broderick be “publicly reprimanded for his misconduct,” according to court documents.“This sanction would serve to remind (Broderick), and members of the bar, of the duty an attorney owes our justice system, and the perils associated with representing a family member in an adversarial proceeding,” stated the recommendation from Grant Superior Court 1 Judge Jeffrey D. Todd.
The Indiana Supreme Court Disciplinary Commission filed a formal complaint against Broderick in October 2008. The complaint claimed Broderick committed professional misconduct when he signed a Delaware County Prosecutor’s Office deferral agreement after his son, Evan Broderick, was arrested for allegedly driving drunk in 2003. Broderick failed to disclose his son’s 2001 arrest for misdemeanor battery in Florida.
Broderick, who was not Madison County prosecutor at the time of the incident, has said he signed the document without fully reading it. He said Tuesday it’d be premature to comment until the final decisions are made.
Todd was appointed to listen to both sides of the complaint case, and submit recommendations to the Indiana Supreme Court. Both parties, Broderick and the Commission, have 30 days to respond to the Oct. 29 recommendations. If one side files a petition, there will be more time for the other side to respond.
However, the court is not restricted by Todd’s recommendations.
“The court reviews them and makes a final decision,” said Paula Cardoza, staff attorney for the Indiana Supreme Court.
Todd said in his recommendations that, although Broderick should be reprimanded for his oversight, he should not be suspended from practicing law.
Todd noted that Broderick breached a sacred duty of lawyers by signing his son’s deferral agreement without fully reading or understanding the document.
“It is a lawyer’s solemn duty to protect our system of justice,” the court document said. “This duty lies at the heart of what it means to be a lawyer.”
Posted by Marcia Oddi on November 19, 2009 11:25 AM
Posted to Indiana Courts
Wednesday, November 18, 2009
Ind. Courts - Hamilton vote now set for Thursday
The "up or down" U.S. Senate vote on the David Hamilton nomination is now set for Thursday.
Here are some interesting observations in a Washington Post editorial writers' blog. The entry is headed "Lindsey Graham's disappointing filibuster vote."
Posted by Marcia Oddi on November 18, 2009 06:15 PM
Posted to Indiana Courts
Ind. Decisions - More on: Petitions to transfer filed in the Indiana voter ID case
This will update this ILB entry from Oct. 20th, which included links to the dueling petitions to transfer filed re the Court of Appeals decision in League of Women Voters v. Todd Rokita, the voter ID case decided by the Indiana Court of Appeals Sept. 17, 2009, on state constitutional grounds.
Here is a list of earlier ILB entries in the case.
Two national sites have now become repositories of filings in the case.
- The Moritz College of Law's Election Law Center has a page devoted to the case, and looks to include the trial documents, many of the Court of Appeals documents, and all the Supreme Court documents so far.
- The New York University School of Law Brennan Center for Justice also has a page devoted to the case, centering on the appeal to the Supreme Court. A number of amicus briefs have been filed, so far all on behalf of the plaintiffs. The site gives a nutshell summary of each.
As of today, Nov. 18, 2009, the Supreme Court has not acted on the transfer petitions.
Posted by Marcia Oddi on November 18, 2009 03:05 PM
Posted to Ind. App.Ct. Decisions
Ind. Courts - New Bicknell City Judge Michael Edwards named "Judge of the Day" by national law blog
Remember this entry from Nov. 3rd, 2009, where the City of Bicknell finally got a judge? Their city judge, and his wife, had been suspended by the Supreme Court, effective immediately, on Oct. 14th "on accusations they stole thousands of dollars worth of traffic ticket fines from the court's account" (see this Oct. 14th ILB entry). Another ILB entry, on Oct. 29th quoted WTHI TV 10 on "the cost of returning order to its city court.." Bicknell now had no judge, so no fines were coming in, they were missing the thousands allegedly stolen, and they still had to pay the costs of the suspended judge, plus they would have to pay the costs of a new judge, whenever one was appointed by the Supreme Court.
Then came the Nov. 3rd ILB entry - a new judge pro tempore, Michael D. Edwards, had been appointed by the Supreme Court, effective 16th.
And the new judge, unlike the suspended judge, was a lawyer. But, it turns out, just barely.
Above the Law's (ATL) Kashmir Hill picks up on the story today. Hill explains "a Georgetown classmate tipped us off to the news." Here are some quotes:
Many ‘08 law school grads are about to take a step up to second year associate level at Biglaw firms across the land. You’re feeling pretty proud? And lucky to have a Biglaw gig these days, right?ATL quotes WTHI-TV: "Michael Edwards is a Naval Academy graduate, former Marine, and now the city court judge in Bicknell."Well, eat your hearts out. Michael Edwards, Georgetown Law ‘08 grad, has already been appointed a judge. He took his seat on the bench in Indiana City Court [ILB sic - should be Bicknell, Indiana, city court] on Tuesday.
ATL continues: "We sent Judge Edwards a Facebook message asking about his relatively quick costume change from cap and gown — he graduated from Georgetown in October 2008 — to judicial robe:" Here is the response:
Through law school, my dream was to return to southern Indiana and do the small town Atticus Finch thing. I was heading to one of the largest firms in Chicago to work in their litigation group, however, because of my staggering loans.ATL concludes:When my start date kept getting pushed back, I looked around for other options. I graduated from Annapolis and spent six years in the Marines before GULC, so I also had a military background. The Navy made me an offer to work for them as a civilian on a special project called SBX-1 at a base in southern Indiana where I’d use my military background and my JD. Anyway, the pay was better than BIGLAW with the cost of living difference, and the offer afforded me the opportunity to return to my hometown in southern Indiana and take some clients on the side.
I had just received my Indiana bar results in October while on a trip to Hawaii. A local judge (Knox County, IN) contacted me with the news that the Indiana Supreme Court needed a temporary replacement for a local city judge under indictment. I sent my resume to Chief Justice Shepard, and I was selected for the spot.
It’s been a busy month for Edwards. He found out he passed the bar at the beginning of October. He went to Hawaii for two weeks (see right), got married on November 7, and founded his own law firm yesterday, Michael Edwards Law Center LLC.Good work by ATL! The ILB is sorry it didn't follow up on the initial announcement!And he’s hiring. He says he’s currently sorting his judicial files and will soon hire and train a clerk.
Posted by Marcia Oddi on November 18, 2009 12:24 PM
Posted to Indiana Courts
Ind. Decisions - Two Indiana decisions today from the 7th Circuit - plus another 2nd amendment case
In Bandak v. Eli Lilly Retirement Plan (SD Ind., McKinney), a 9-page opinion. Judge Posner writes:
Bandak, a retired employee of Eli Lilly, sued the company’s retirement plan under ERISA and received a judgment for $100,222.86 in damages and an injunction against the plan’s offsetting any of his future benefits by amounts paid to him under a plan in which he was enrolled when he worked in the United Kingdom. The district court also awarded him attorneys’ fees and costs, amounting to $89,612, on the ground that Lilly’s position in the litigation had not been substantially justified. * * *In Boyer v. Crown Stock Distribution (ND Ind., CJ Miller), a 19-page opinion, Judge Posner writes:We know that the chairman of Lilly’s board of directors was concerned about the cost of its retirement plan. And the disingenuousness of Lilly’s arguments suggests that the conflict of interest was indeed gnawing at the administrator. * * *
So not only was the district court’s decision correct; Lilly’s rejection of Bandak’s claim was not substantially justified, and therefore the district judge committed no error in awarding Bandak his reasonable attorneys’ fees and costs. Sullivan v. William A. Randolph, Inc., 504 F.3d 665, 670-72 (7th Cir. 2007); see 29 U.S.C. § 1132(g). Bandak has asked for fees for defending the appeal, and he is entitled to them too. As we explained in Sullivan, “affirmance entitles an appellee who has properly been awarded an attorney’s fee in the district court to an attorney’s fee for successfully defending the district court’s judgment in the court of appeals. Otherwise the purpose of the initial award—to shift the cost of litigation to the losing party—would be imperfectly achieved.” Sullivan v. William A. Randolph, Inc., supra, 504 F.3d at 672 (citations omitted). Bandak is directed to submit within 10 days an itemized statement of the attorneys’ fees that he incurred in defending the appeal, and Lilly will have 10 days to respond.
These appeals arise from the Chapter 7 bankruptcy of Crown Unlimited Machine, Inc. The trustee in bankruptcy filed an adversary action charging the defendants—a defunct corporation and its shareholders, members of a family named Stroup—with having made a fraudulent conveyance in violation of Ind. Code § 32-18-2-14(2) (section 4(a)(2) of the Uniform Fraudulent Transfer Act), a statute enforceable in a bankruptcy proceeding. See 11 U.S.C. § 544(b). After an evidentiary hearing, the bankruptcy judge awarded the trustee $3,295,000 plus prejudgment interest. The district judge affirmed and the defendants have appealed. The trustee has cross-appealed, seeking an additional $590,328. * * *In the 2nd amendment case, U.S. v. Skoien (WD Wis.), a 27-page opinion, Judge Sykes writes:The defendants make some other arguments, but they do not require discussion. The trustee is entitled to the judgment awarded by the bankruptcy judge, plus the $590,328 dividend. After the claims of all creditors have been satisfied and the costs of administering the bankruptcy paid, any money remaining in the hands of the trustee must be returned to the defendants. The judgment of the district court is therefore affirmed in part and reversed in part (the part relating to the dividend), and the case remanded for further proceedings consistent with this opinion.
A grand jury indicted Steven Skoien for possessing a firearm after having been convicted of a misdemeanor crime of domestic violence in violation of 18 U.S.C. § 922(g)(9). Skoien moved to dismiss the indictment, arguing that applying the federal statute to him violated his Second Amendment right to keep and bear arms as explained in District of Columbia v. Heller, 128 S. Ct. 2783 (2008). The district court denied the motion. Skoien pleaded guilty but reserved his right to appeal the district court’s denial of his motion to dismiss the indictment. He now reiterates his Second Amendment challenge to § 922(g)(9).The government has approached this case as though all it had to do to defend the constitutionality of § 922(g)(9) is invoke Heller’s language about certain “presumptively lawful” gun regulations—notably, felon-dispossession laws. Not so. Heller held that the Second Amendment secures an individual natural right to possess firearms for self-defense; the opinion’s reference to exceptions cannot be read to relieve the government of its burden of justifying laws that restrict Second Amendment rights. Although Heller did not settle on a standard of review, it plainly ruled out the deferential rationalbasis test; this leaves either strict scrutiny or some form of “intermediate” review. On the facts of this case, we hold that intermediate scrutiny applies. In its usual formulation, this standard of review requires the government to establish that the challenged statute serves an important governmental interest and the means it employs are substantially related to the achievement of that interest. * * *
To summarize, we conclude that intermediate scrutiny applies to Skoien’s Second Amendment challenge to this § 922(g)(9) prosecution. The government has the burden of establishing a reasonable fit between its important interest in reducing domestic gun violence and the means chosen to advance that interest—§ 922(g)(9)’s total disarmament of domestic-violence misdemeanants. Accordingly, we vacate Skoien’s conviction and remand for further proceedings consistent with this opinion. If the government successfully discharges its burden, the district court shall reinstate Skoien’s conviction.
Posted by Marcia Oddi on November 18, 2009 11:11 AM
Posted to Ind. (7th Cir.) Decisions
Ind. Decisions - Court of Appeals issues 1 today (and 4 NFP)
For publication opinions today (1):
In T.L. Brandon Hollar v. State of Indiana , an 11-page opinion, Judge Bailey writes:
Hollar argues that he received the maximum sentence despite two years being suspended to probation. The State disagrees, citing Jenkins v. State, 909 N.E.2d 1080 (Ind. Ct. App. 2009), trans. denied. The Jenkins court noted a split of opinion on this Court as to whether a fully executed sentence is equivalent to a sentence of equal length with part suspended to probation. Id. at 1084. While acknowledging that probation can be revoked,2 the court concluded that, in analyzing whether a sentence is inappropriate under Indiana Appellate Rule 7(B), anything less than a fully executed sentence of the maximum length does not constitute a maximum sentence. Id. at 1085-86.NFP civil opinions today (0):There is a “continuum of possible punishments” that essentially ranges in severity based on the degree to which the punishment impinges on a defendant's liberty. * * *
In light of this spectrum and its varying degrees of restraint on the liberty and freedom of a defendant, we look to whether the sentence is composed of executed imprisonment time, in whole or in part, or includes any alternatives to incarceration when performing 7(B) analysis. Here, Hollar was ordered to serve one year of imprisonment and two years of supervised probation. With credit time, Hollar could serve as little as six months in prison. * * *
Based on the nature of the offense and the character of the offender, Hollar has not persuaded us that his sentence of one year imprisonment and two years of probation is inappropriate. Affirmed.
BRADFORD, J., concurs.
VAIDIK, J., concurs in result with opinion. [that concludes] I would decline to follow Jenkins and instead review the entirety of Hollar's suspended and executed sentences for inappropriateness. However, I join the majority in concluding that Hollar's imposed sentence is not inappropriate in light of the nature of the offense and the character of the offender. I therefore concur in result.
NFP criminal opinions today (4):
Curtis Tyrone Love v. State of Indiana (NFP)
Curtis Dewhart v. State of Indiana (NFP)
Robert Michael Webb v. State of Indiana (NFP)
James L. Ratliff v. State of Indiana (NFP)
Posted by Marcia Oddi on November 18, 2009 10:58 AM
Posted to Ind. App.Ct. Decisions
Ind. Decisions - Supreme Court decides aspect of Inlow estate dispute [Updated]
In the Matter of the Estate of Lawrence W. Inlow; Anita Inlow v. Jason L. Inlow, Heather N. Johnson, Jeremy H. Inlow, and Sarah C. Inlow, a 5-page, 5-0 opinion issued today, written by Justice Dickson, provides:
When the proceeds from a pre-trial settlement of a special administrator's wrongful death action are not specifically allocated between different types of damages, to what extent is the decedent's estate entitled to payment therefrom for the decedent's funeral and burial costs? To address this question, we granted transfer. * * *[Updated at 4:00 PM] Erika D. Smith of the Indianapolis Star has now posted a report on the ruling, headlned "Indiana Supreme Court reverses earlier ruling on Inlow estate."We do not agree, however, with the widow's contention that none of the wrongful death settlement proceeds can be paid to the Estate for the funeral and burial expenses. It is quite apparent from the language of the Act that, in creating a statutory cause of action for wrongful death, the legislature intended particular attention to the payment of medical, hospital, funeral, and burial expenses. To extend this legislative objective to pre-trial settlements, a proportional allocation appears most equitable. To guide the distribution of pre-adjudication settlements in wrongful death cases in a manner consistent with the statutory scheme for distribution of proceeds when damages are adjudicated, we exercise our common law supervisory authority.
We hold that, to resolve such disputes as presented in this case, a court should direct payment from the pre-trial wrongful death settlement that part of the medical, hospital, funeral, and burial expenses that corresponds to the ratio of the total of such expenses to the estimated total damages sustained. We understand that in such disputes a court's allocation of a pre-trial wrongful death settlement may require that the court receive evidence from the parties to enable it to ascertain the approximate total damages and thus determine a proportionate equitable allocation.
We reverse the court's September 5, 2007, order to the extent that such order approves the claim of the Successor Personal Representative for the distribution of the full amount of funeral and burial expenses from the wrongful death settlement proceeds. This case is remanded to the court for a determination of the portion of said expenses to be distributed to the Estate from the wrongful death settlement in a manner consistent with this opinion.
Posted by Marcia Oddi on November 18, 2009 10:26 AM
Posted to Ind. Sup.Ct. Decisions
Law - Indiana Daily Student editorial on stalled Dawn Johnsen nomination
Published late Monday, Nov. 16th, the headline is "Unacceptable obstruction":
IU law professor Dawn Johnsen was supposed to be confirmed by Congress to head President Barack Obama’s Office of Legal Council almost a year ago.Here are earlier ILB entries mentioning Dawn Johnsen.Instead, her confirmation process has stalled. Since she was approved by the Senate Judiciary Committee in March, Senate Majority Leader Harry Reid, D-Nev., has been reluctant to try to force a vote because a supermajority of 60 senators is required to end debate.
So far, 57 Democrats and Indiana Republican Sen. Richard Lugar are in support of Johnsen’s confirmation.
In theory, judicial confirmations are only supposed to require a simple majority. But because Republicans have threatened a filibuster, Johnsen’s confirmation is two votes short of the 60 needed to gain a supermajority and end debate.
This is a common pattern with presidential appointees that seems to get worse with every administration, and it needs to stop.
Most of the concern over Johnsen’s appointment relates to her former position as director for NARAL Pro-Choice America and her strong stance against Bush torture policies.
Thirty-one Republican state senators even asked Lugar and Sen. Evan Bayh, D-Ind., to oppose Johnsen’s nomination on the basis of her pro-choice views.
As this editorial board has argued before, a closer examination of Johnsen reveals a figure much more moderate than the controversy would suggest.
Johnsen’s pro-choice stances support current law, and she has affirmed that the United States has the right to hold enemies until hostilities end under the laws of armed conflict.
The Office of Legal Council is, among other things, responsible for briefing the president on constitutional questions, including the constitutionality of pending legislation. That office should have leader a year into a president’s term.
But many other appointees should have been confirmed by now or confirmed faster. Kathleen Sebelius, the new secretary of Health and Human Services, had a lengthy confirmation process that made coping with the swine flu outbreak difficult. Lugar recently expressed frustration with a hold that had been put in place on the confirmation of the next U.S. ambassador to Brazil.
Positions both large and small need to be filled in a much timelier fashion. Our senators should certainly be critical of any nominee they are asked to confirm. But it is time more nominees got an up or down vote.
Posted by Marcia Oddi on November 18, 2009 09:21 AM
Posted to General Law Related
Ind. Decisions - More on "Sex offender registry [may be] reduced by 1/3" [Updated]
The ILB had this lengthy entry on Nov. 11, 2009, about the Indiana Supreme Court decision in Richard P. Wallace v. State, decided last April, 2009. Here are some quotes from the 5-0 opinion (emphasis added by ILB):
In this case we consider a claim that the Act constitutes retroactive punishment forbidden by the Ex Post Facto Clause contained in the Indiana Constitution because it applies to a defendant who committed his offense before the statutes were enacted. We conclude that as applied in this case the Act violates the constitutional provision. * * *The Nov. 11th ILB entry quoted from a WANE Fort Wayne story about the implications of the Wallace ruling:In this jurisdiction the Act makes information on all sex offenders available to the general public without restriction and without regard to whether the individual poses any particular future risk. Indeed we think it significant for this excessiveness inquiry that the Act provides no mechanism by which a registered sex offender can petition the court for relief from the obligation of continued registration and disclosure. Offenders cannot shorten their registration or notification period, even on the clearest proof of rehabilitation. * * *
Conclusion. Richard Wallace was charged, convicted, and served the sentence for his crime before the statutes collectively referred to as the Indiana Sex Offender Registration Act were enacted. We conclude that as applied to Wallace, the Act violates the prohibition on ex post facto laws contained in the Indiana Constitution because it imposes burdens that have the effect of adding punishment beyond that which could have been imposed when his crime was committed. We therefore reverse the judgment of the trial court.
Deputy Prosecutor Michael McAlexander, the Allen County Prosecutor's office , explained what that means. "[The Indiana] constitution does not allow you to look at an event first and then decide that [it] should be against the law and then retroactively enforce it against people."The ILB entry went on to ask: But how is Wallace being implemented statewide? The conclusion - as the opinion is now being implemented, case-by-case affirmative action is necessary - this is from the end of the Nov. 11th ILB entry:On the Allen County Sex Offender Registry alone, the case potentially affects about 245 of the 650 people registered. That's about 37% of Allen County registered sex offenders that potentially won't have to check in with local authorities and have their addresses and other personal information available to their neighbors on the registry website.
Here is the DOC page referenced in the story. The statement:All of this is but a long preface to last evening's story on 6 News, Indianapolis, reported by Jack Rinehart. The headline: "Hundreds Of Sex Offenders Could Disappear From Registry: Court Ruling Calls Retroactive Registrations Unconstitutional." The ruling is the Wallace decision from last April. Here is the story:On April 30, 2009, the Indiana Supreme Court issued decisions in cases involving Richard P. Wallace and Todd Jensen regarding the Indiana Sex and Violent Offender Registration Act. Copies of the cases may be accessed by following the links indicated below. If you believe the cases have an impact on your requirements to register as a sex or violent offender in the State of Indiana, you may raise the matter in a court of appropriate jurisdiction or discuss it with an attorney. The Indiana Department of Correction is not able to provide persons with legal advice as to the impact of the Wallace and Jensen cases.In other words, individual affirmative action is required to remove a name from the list, even though, as reported in the WANE story, in "Allen County Sex Offender Registry alone, the [Wallace] case potentially affects about 245 of the 650 people registered."[More] The Indiana Sheriffs' Sex and Violent Offender Registry appears to make no reference to the changed requirements due to the Wallace decision. See the FAQ on who is required to register.
INDIANAPOLIS -- Hundreds of convicted sex offenders could have their names and pictures removed from county lists after a state law was ruled unconstitutional.The ILB is trying to track down the reference to a September opinion and the reference to the state attorney general ...In 1994, the Indiana Legislature created Zachary's Law, or the sex offender registry. Three years later, the Legislature amended the law to require all persons convicted of sex offenses to register.
But this September [ILB - ?], the Indiana Supreme Court reaffirmed its own ruling that the law was unconstitutional because it required those convicted before the law was enacted to register.
On the advice of the state attorney general, the Marion County sheriff will now allow those required to register retroactively to have their names removed from the list, 6News' Jack Rinehart reported.
"We're not going to remove anybody. We're taking no enforcement action," said Lt. Bob Hanna, who oversees the Sheriffs' Sex and Violent Offender Registry. "As far as removing faces, names and addresses, we won't do that without a court order."
Sex offenders who registered retroactively can petition the court that held jurisdiction over their case to remove their names from the registry. They will then have to present that order to the local sheriff's department.
In Marion County, which currently has 3,606 registered offenders, more than 800 sex offenders would be eligible to have their names removed from the list.
Some neighborhood advocates oppose the idea. * * *
Residents said they'll find a way around the law change.
"I think what you'll see is groups or agencies that will pop up and track these individuals that will try to take themselves off the list," said Bill Callahan of the Brookside Neighborhood Association. "There's nothing to stop people from getting public information about a person and creating their own list."
[More] The "September opinion" referenced in the 6 News story may be an August 20, 2009 action by the Supreme Court to "deny Appellee's peition for rehearing, without opinion."
[Updated at 6:00 PM] Late this afternoon, in answer to a request, the ILB received this clarification from Bryan Corbin of the Indiana Attorney General's office:
To clarify, the Attorney General’s Office has not issued a communication to county sheriffs on this subject. The Wallace decision still is under consideration and review. We have discussed enforcement options with our client, the Department of Correction. But we have not issued a published legal advisory opinion on this subject.
Posted by Marcia Oddi on November 18, 2009 08:29 AM
Posted to Ind. Sup.Ct. Decisions
Ind. Law - IU Law Prof. Mary Hart Mitchell, 56, who died Nov. 4, featured in Dan Carpenter column
Updating these earlier ILB entries, Dan Carpenter, op-ed columnist for the Indianapolis Star, has a long column today on the November 8th memorial service. It begins:
A cherished ally, exemplar and inspiration was snatched away by a sudden, shocking illness early this month.Mary Harter Mitchell was a professor nearly 30 years at Indiana University School of Law, Indianapolis; a devoted student at Christian Theological Seminary; an author; a poet; and a Quaker who took her religion of peace and justice at its word.
As a wife, mother and friend, she practiced a politics of love that chastened those of us who get so caught up in public perfidy we lose our personal moorings, our sense of self and human connection.
In a contemporary political atmosphere that is about as conducive to efflorescence as that of the planet Mercury, Mary bloomed bright and tough as a northern rose.
"A quiet person," said her husband, CTS professor Frank Burch Brown. "But she had a fierce side that so impressed us, that emerged whenever she thought people were not getting a fair shake."
Posted by Marcia Oddi on November 18, 2009 08:20 AM
Posted to Indiana Law
Ind. Courts - "Obama court nominee David Hamilton clears Senate hurdle: full Senate vote set for today"
Warren Richey has the story here in the Christian Science Monitor. Some quotes:
In the first major showdown over the future direction of the federal judiciary, Democratic leaders in the Senate scored a victory on Tuesday by defeating a Republican attempt to stall indefinitely President Obama’s nominee to the federal appeals court in Chicago.Here is today's Senate Schedule from C-SPAN:The Senate voted 70 to 29 to end debate over the nomination of US District Judge David Hamilton of Indiana to a seat on the Seventh US Circuit Court of Appeals.
The vote opens the way to Judge Hamilton’s expected easy confirmation via a simple majority vote set to take place on Wednesday. * * *
The Hamilton nomination fight is about more than filling a vacant seat on the Seventh Circuit. At stake ultimately is the balance of power on several federal courts of appeals between Democratic and Republican appointees.
At the Richmond-based Fourth Circuit, that balance swung in favor of Democratic appointees 6 to 5 last week with the confirmation of Judge Andre Davis to a vacant seat. The Fourth Circuit was long a conservative judicial stronghold, but could now swing sharply to the left with four vacant seats open for Obama appointments.
The Second Circuit in New York is divided between five Republican appointees and four Democratic appointees, with four open seats.
The Philadelphia-based Third Circuit is divided six to six with two open seats.
Overall there are 21 vacancies on the 179-judge federal appeals courts. Including Judge Davis and Hamilton, Obama has nominated nine individuals to vacant appeals court seats so far.
NOVEMBER 18, 2009 -- After the transaction of any morning business (not to extend beyond two hours), Senate will continue consideration of the nomination of David F. Hamilton, of Indiana, to be United States Circuit Judge for the Seventh Circuit, and vote on confirmation thereon. (At approximately 9:30 a.m., Senator Rockefeller will be recognized to speak.)From the Fort Wayne Journal Gazette, Sylvia Smith has this story headed "Senate agrees to allow vote on Hoosier judicial nominee: Lugar votes to stop GOP filibuster."
Posted by Marcia Oddi on November 18, 2009 08:00 AM
Posted to Indiana Courts
Tuesday, November 17, 2009
Ind. Courts - Senate debate begins on Hamilton [Updated]
At 3:13 PM Senate debate has begun on the cloture motion re consideration of the nomination of David Hamilton to the 7th Circuit. Senator Evan Bayh is the first speaker. Watch on C-SPAN 2.
[5:00 PM] Vote on the motion to proceed with debate on the nomination was approved 70-29.
[More] USA Today now has this brief story. Some quotes:
The Senate voted 70-29 today to end a filibuster threat against one of President Obama's first federal judiciary appointees, David Hamilton of Indiana. * * *[Still More at 5:26] Larry Margasak of the AP has a good story on the implications of the 70 vote total, which included 10 Republican votes. Some quotes:Despite increasingly partisan rhetoric on both sides of the aisle over judiciary appointments in recent years, several Republicans -- including Lugar -- crossed the aisle to vote for Hamilton. A final vote on his nomination could take place later tonight.
The 70-29 vote limited debate over the qualifications of U.S. District Judge David Hamilton of Indiana, and assured his elevation to the Chicago-based appeals court. Sixty votes were needed to end the filibuster, but confirmation only requires a simple majority of the 100-member Senate.Ten Republicans went against their own party leaders and voted to limit debate.
The vote emphatically warned Republicans that with only 40 senators, they're too outnumbered to prevent Obama from making major inroads into a judiciary that was populated over eight years with conservative judges chosen by President George W. Bush.
Posted by Marcia Oddi on November 17, 2009 03:12 PM
Posted to Indiana Courts
Ind. Decisions - "Man who hit school bus is in trouble for apologizing"
The case of Gabino Gonzalez v. State of Indiana, argued this morning before the Supreme Court, is the subject of a story this afternoon reported by Eric Bradner of the Evansville Courier & Press that begins:
INDIANAPOLIS — Attorneys for a man who sent an apology letter to local school officials admitting he had consumed alcohol the day he crashed into a school bus asked the Indiana Supreme Court on Tuesday not to punish him for saying he’s sorry.After crashing his pickup truck into the side of a school bus carrying children in October 2006, the Mexican national who is identified by the name Gabino Gonzalez and two more names in court documents was on course to see a plea agreement reached in 2008.
But that agreement was scuttled when Gonzalez sent a letter to Evansville Vanderburgh School Corporation officials apologizing for the incident and admitting that he had consumed alcohol that day.
The letter raised the eyebrows of Vanderburgh Superior Court Judge Margaret Lloyd, who tossed the plea agreement after quizzing Gonzalez about contents of the letter which she found disingenuous.
Gonzalez, whose case then went to trial, faced a stiffer punishment when a court allowed the letter to be entered into evidence and he was convicted of criminal mischief and operating a vehicle while intoxicated.
The debate Tuesday centered on a state law that protects defendants from having anything they tell prosecutors during plea negotiations from being used against them in court.
Gonzalez’ letter was sent to the EVSC, not prosecutors, but his attorney, Evansville-based Matthew McGovern, argued that Gonzalez should still be protected from having that letter used against him.
Posted by Marcia Oddi on November 17, 2009 02:43 PM
Posted to Upcoming Oral Arguments
Ind. Decisions - Court of Appeals issues 2 today (and 4 NFP)
For publication opinions today (2):
In Paul Davis v. State of Indiana , an 11-page, 2-1 opinion, Judge Darden writes:
Davis asserts that his probation revocation hearing did not comport with due process. Specifically, he argues that the trial court did not find the underlying arrest to be reasonable and supported by probable cause. * * *In Rachel Mosco v. IDCS , a 9-page opinion, Judge Riley writes:The State, however, argues that Davis was not entitled to due process rights as he admitted to violating his probation. We acknowledge that an admission of a probation violation by a probationer's attorney is binding upon the probationer. See Parker v. State, 676 N.E.2d 1083, 1086 (Ind. Ct. App. 1997). Where, however, the admission itself is insufficient to support a probation revocation, we cannot agree it renders the procedural due process safeguards and evidentiary hearing unnecessary. Cf. id. (finding no violation of Parker's rights despite no evidence having been presented as his counsel admitted that he had failed to report to the probation department as required). Given that Davis' probation revocation hearing did not comport with due process, and therefore, insufficient evidence was presented to support the revocation, we reverse the revocation of Davis' probation. Reversed and remanded.
ROBB, J., concurs.
MATHIAS, J., dissents with separate opinion. [which states in part] Here, Davis not only admitted to the historical fact that he had been arrested, his counsel also agreed that his probation would be revoked. Although Davis did not personally speak during the revocation hearing, his counsel's admission is binding on him.
This court has recognized that under strict compliance with the AOPA, there exists the potential of a state agency, as custodian of the agency record, to be “intentionally slow and uncooperative in producing a complete record, in hopes of securing a dismissal.” Reedus, 900 N.E.2d at 487-88. Moreover, the legislature anticipated the possibility that the agency record would not always be readily accessible and therefore provided for the failure of the agency to timely prepare the record by allowing the litigant to request an extension of time to file the record. I.C. § 4-21.5-5-13(b).NFP civil opinions today (1):However, once it became clear that DCS would not be able to prepare the agency record within the thirty-day window, we believe that the onus was on Mosco to request an extension, which she did not do. Thus, we cannot say that the AOPA is a “trap” for litigants or is fundamentally unfair. * * *
Based on the foregoing, we conclude: (1) Mosco did not substantially comply with the AOPA; (2) the trial court had discretion to dismiss her case. Affirmed.
Theresa Kopchik and William Kopchik v. Mary Ann F. Dybala (NFP) - "As noted above, adverse possession cases must be decided on a case by case basis, applying the evidence to the circumstances of the land involved. McCarty, 423 N.E.2d at 300. Considering the issues of law and the facts found by the trial court, and the inferences reasonably drawn therefrom, we find that a reasonable trier of fact could conclude that the elements of adverse possession were established by clear and convincing evidence."
NFP criminal opinions today (3):
Travis McDonald v. State of Indiana (NFP)
Rachel Cusack v. State of Indiana (NFP)
Duane R. Dawson v. State of Indiana (NFP)
Posted by Marcia Oddi on November 17, 2009 02:04 PM
Posted to Ind. App.Ct. Decisions
Law - Report of the GAO on cybersecurity and evolving threats
Today the Government Accountability Office has issued a 24-page report titled "Cybersecurity: Continued Efforts are Needed to Protect Information Sysytems from Evolving Threats." Access it here.
Posted by Marcia Oddi on November 17, 2009 12:30 PM
Posted to General Law Related
Ind. Courts - New Parenting Time and Child Support Guidelines Booklet
The ILB is pleased to make available online the ISBA Family & Juvenile Law Section's new publication, Indiana's Parenting Time and Child Support Guidelines, current as of January 1, 2010.
Note that this publication will not be produced in print form until after the first of next year, when the new Child Support Guidelines go into operation. However, there has been much interest in an advance draft, so here it is in a PDF version, posted with the approval of the ISBA section.
(Note: My company, EIS, produced this publication, via a contract with the ISBA.)
Posted by Marcia Oddi on November 17, 2009 11:39 AM
Posted to Indiana Courts
Ind. Decisions - Transfer list for week ending November 13, 2009
Just received. Here is the Clerk's transfer list for the week ending November 13, 2009. It is five pages long.
One transfer was granted last week: Efren Radillo Diaz v. State (NFP) (20A05-0903-PC-165), decided Aug. 27, 2009 by the COA.
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Search all the Transfer Lists: The ILB feature, "Search the ILB Transfer Lists," allows you to do just that. Check it out. Read the instructions. Note that the search is now current through the Oct. 9, 2009 list.
Over 5 1/2 years of Transfer Lists: For other weekly transfer lists (going back to Feb. 2, 2004), check "Indiana Transfer Lists" under "Categories" below, or in the right column.
Posted by Marcia Oddi on November 17, 2009 11:25 AM
Posted to Indiana Transfer Lists
Law - Hackers reportedly targeting law firms via e-mail
An AP story, reported by Lolita C. Baldor, is headed "FBI says hackers targeting law firms, PR companies." The story begins:
WASHINGTON — Hackers are increasingly targeting law firms and public relations companies with a sophisticated e-mail scheme that breaks into their computer networks to steal sensitive data, often linked to large corporate clients doing business overseas.The FBI has issued an advisory that warns companies of "noticeable increases" in efforts to hack into the law firms' computer systems — a trend that cyber experts say began as far back as two years ago but has grown dramatically.
In many cases, the intrusions are what cyber security experts describe as "spear phishing," attacks that come through personalized spam e-mails that can slip through common defenses and appear harmless because they have subject lines appropriate to a person's business and appear to come from a trusted source.
Posted by Marcia Oddi on November 17, 2009 10:09 AM
Posted to General Law Related
Courts - "Taking Aim at Student Muckrakers"
Updating this ILB entry from Oct. 25, 2009, headed "Lake County Illinois prosecutors 'Turn Tables on Student Journalists'" (and the odd tack it took in this Nov. 12th entry), David Carr of the NY Times devotes his "The Media Equation" column today to the story. Some quotes:
Since 1992, Prof. David Protess at the Medill school at Northwestern University has worked with undergraduate journalism students to investigate cases in which prosecutors appear to have taken aim at the wrong people. That might be about to happen again, only this time the students themselves would be the targets.In one of the most recent cases, students working with the effort, which became the Medill Innocence Project in 1999, uncovered evidence that suggested Anthony McKinney had been wrongfully convicted and imprisoned for almost three decades for the murder of a security guard in 1978. * * *
And because of that investigative work — and perhaps work on other cases, which has led to the exoneration of 11 people, 5 of whom had been sentenced to death — the project and its students find themselves in the gun sights of Cook County prosecutors.
“I and some of my former classmates are now wondering if we are going to have to consider going to jail to protect our sources and our notes,” said Evan S. Benn, a writer and editor at The St. Louis Post-Dispatch who worked on the case in his final semester at Medill before graduating in 2004.
The prosecutors are seeking access to investigative materials, e-mail messages, course outlines, syllabuses, training materials and, yes, even grades, to explore the “bias, motive and interest” behind the students’ work.
The prosecution argued in a brief filed last week that the school “conducted a private criminal investigation by using students in a journalism class” and further said that during their three years of work on the case, the students had paid witnesses money, flirted with them and, in one instance, flashed a shotgun.
Because the students did not produce newspaper articles themselves — some of their findings were published by the reporter Maurice Possley in a front-page piece in The Chicago Sun-Times last year — the prosecution holds that the students themselves are not journalists and not eligible for the reporter’s privilege of protecting their work. * * *
As some corners of journalism weaken under eroding business models, subjects of coverage seem increasingly emboldened to push back against aggressive reporting. At a time when all manner of hybrid models of journalism are emerging, the effort by Anita Alvarez, the Cook County state’s attorney, to deny the students status as journalists in the eyes of the court is ominous.
Newspapers are beginning to collaborate with schools in an effort to stretch thin budgets, journalism nonprofit groups that don’t have specific publications but share their findings are cropping up all over the map, and citizen journalists are beginning to use the Web to provide accountability reporting as well. * * *
After her election in November as Cook County state’s attorney, Ms. Alvarez challenged the new evidence in the McKinney case and issued a sweeping subpoena ordering Professor Protess to hand over all of the material from the project’s investigation, including students’ private memos and grades.
Her office said that the grades were germane because they might suggest a motive for the students’ work. The school’s lawyers will have until Jan. 11 to respond to the prosecutors’ argument that its students were not acting as journalists. At issue will be who is actually a journalist and, not so incidentally, what remains of one man’s life.
Posted by Marcia Oddi on November 17, 2009 10:00 AM
Posted to Courts in general
Courts - "GOP Opposition Slows Obama's Judicial Nominees"
Nina Totenberg's report this morning on NPR's Morning Edition is available for listening or reading here.
The Washington Post has an editorial today headed "Giving hypocrisy a bad name: Republicans slammed filibusters of Bush judicial nominees. Now they see things differently."
The LA Times' editorial on the subject is headed "Time for a ruling on judge: David F. Hamilton, nominated to the 7th Circuit Court, has been held up by partisan politics. But such delays also interfere with the administration of justice."
Here is today's Senate schedule from C-Span:
NOVEMBER 17, 2009 -- After the transaction of any morning business (not to extend beyond one hour), Senate will continue consideration of H.R. 3082, Military Construction and Veterans Affairs Appropriations Act, vote on or in relation to certain amendments, and passage of the bill; following which, Senate will resume consideration of the nomination of David F. Hamilton, of Indiana, to be United States Circuit Judge for the Seventh Circuit, and after a period of debate, vote on the motion to invoke cloture thereon. (Senate will recess from 12:30 p.m. until 2:15 p.m. for their respective party conferences.)
Posted by Marcia Oddi on November 17, 2009 09:39 AM
Posted to Courts in general
Ind. Courts - "Changes could reshape the face of Indiana's courts"
Harold J. Adams of the Louisville Courier Journal reports today on the plan to restructure Indiana's courts.
The 27-page plan was announced by the Indiana Judicial Conference on Sept. 17th. See this ILB from Sept. 17th (including a link to the plan) and this one from Sept. 18th (including an answer to the question: "Okay, what is the Indiana Judicial Conference?"). See also this Oct. 1st ILB entry re a Fort Wayne Journal Gazette editorial.
Some quotes from Adams' lengthy story today:
City and town courts in Indiana would be eliminated, circuit and superior court judges would be appointed rather than elected and county clerks would no longer process and hold court records under a broad plan intended to improve how Indiana courts operate.The changes outlined by the Indiana Judicial Conference in a 27-page, long-term strategic plan also hinge largely on another fundamental revision: switching how courts are funded from counties to the state.
“Because the state currently pays for some salaries and court programs and county councils pay for other salaries and programs, court funding varies from county to county,” according to the plan approved in September by the conference's board of directors. The result is that some services and expertise are available only in counties that are better off financially.
The plan, intended to improve the ability of courts to resolve legal matters “in a fair, impartial, equally accessible, prompt, professional, and efficient manner,” is likely to take considerable time to implement.
“Court structure, the funding, clerk issues and judicial selection — that's all going to involve many other players,” said Elkhart Circuit Judge Terry Shewmaker, co-chairman of the conference's nine-member strategic planning committee.
While parts of the plan may face stiff opposition in the General Assembly, particularly the idea of creating a statewide merit system for judicial selection, other parts will be resisted by some clerks and municipal court judges whose jobs would be reduced or eliminated.
The recommendations have drawn a mostly enthusiastic reaction from Rep. Linda Lawson, D-Hammond, who chairs the House Judiciary Committee, but a more mixed response from her Senate counterpart, Richard Bray, R-Martinsville. The two differ sharply, for example, on the idea of having merit selection of judges, who would then face straight yes-or-no votes in retention elections to extend their terms.
Lawson unsuccessfully sponsored a bill last year that would have created an all-merit-selection system in Lake County, her home county, which has 17 judges. She said that number of judges makes it hard for voters to be informed about candidates. * * *
As of now, there is no uniform state system of judicial selection. Lake and St. Joseph counties have a mix of merit and partisan selection. Marion County, with 37 judgeships, lets each political party put up a slate in half of the races on the ballot, almost assuring that each party-slated candidate will win.
As for how to fund courts, Lawson and Bray favor the idea of a state takeover.
The state now pays the salaries of judges and prosecutors. But other court staff — court reporters, bailiffs and probation officers — are paid by counties.
“If that's what the judges want, that's fine with me,” Lawson said of state funding.
“I think I probably would agree with that,” Bray said.
Both, however, oppose the idea of eliminating city and town courts and folding their caseloads into an expanded superior court system.
There are 75 city and town court judges in Indiana, including four in Clark County. Floyd County has none.
“I think the system's working pretty well the way it is,” said Sam Gwin, the Clarksville Town Court judge who served as Clark County Court judge in the 1970s and ‘80s before that court was converted to Clark Superior Court 3. “… That's quite a traumatic change to have the state take over everything.” * * *
Part of the plan hinges on creating a new system of judicial districts in which multiple counties would organize to share resources, civil case jurisdiction and governance.
The current system has counties organized into 14 districts. But most acknowledge, as Cody said, that “the current districts have no particular meaning.”
Proponents argue that state-funded districts would allow courts to share resources across county lines.
Cody said that some counties have programs such as drug and alcohol services, drug courts and re-entry programs while others do not.
“And it would be nice if those programs were available to all counties,” he said.
Each district would have a chief judge and would appoint an administrator to help individual courts take over paperwork now handled by the elected clerk of each county.
Clark, Floyd and Scott counties are now in a district that also includes Harrison, Crawford, Orange and Washington counties. The preferred option drawn up by the committee would split those groupings into two smaller districts.
Washington County Clerk Shirley Batt said she opposes the court administrator idea.
“You're looking to pick someone that really doesn't have any accountability to the voters,” she said. “And that gives a lot of power on a higher level just to one person.”
Shewmaker said the judges are continuing to refine the plan.
“The jury's still out” on when legislative support will be sought, he said.
Posted by Marcia Oddi on November 17, 2009 09:20 AM
Posted to Indiana Courts
Ind. Gov't. - Tippecanoe County Assessor's "software plea rebuffed"
From the Lafayette Journal Courier today, this story by Dorothy Schneider:
The Tippecanoe County commissioners denied a request from county assessor Samantha Steele for new software to process personal property taxes.See also this story from Montgomery County.Steele said her staff has faced recurring issues trying to complete personal property work through the Manitron software purchased in the spring, which was part of a conversion from an outdated software system used by the assessor's, auditor's and treasurer's offices.
"As much as the county's paying for that software, it should be working for us. And it's not," Steele said.
But after lengthy discussion, none of the three commissioners made a motion to grant the assessor's request.
Commissioner Tom Murtaugh said he'd like to see better communication between the assessor's office and Manitron officials, two of whom were at Monday's meeting and promised better customer assistance.
Steele expressed frustration, though, and told the commissioners that it's a waste of money to continue with the current software contract. She wants to go with AS2 software, which she said would cost half of what the county is paying -- $9,000 -- in annual maintenance fees.
Murtaugh and the other commissioners said they don't want to throw away the money they've already invested in the Manitron software. Plus they didn't want the county to pay another $8,500 up front to purchase AS2 software.
Some of the Steele's concerns over the Manitron software are: problems with retrieving and retaining data, a gap in the county's mobile home records and delays in getting help from the company's customer service people.
Murtaugh said he wants to see the assessor's office continue working with the software for at least six months to see if the problems from the transition can get worked out.
Posted by Marcia Oddi on November 17, 2009 09:07 AM
Posted to Indiana Government
Ind. Courts - "Apathy ensnarls courts, irks judges: Witnesses appear in slippers, if at all"
Rebecca S. Green had this story in yesterday's Fort Wayne Journal Gazette. Some quotes:
On Nov. 3, Brandon Pierson showed up for court wearing slippers and a leather jacket, scheduled to testify during a trial in Allen Superior Court.And that is just the beginning of this lengthy and important story.But the next time he shows up, he could be handcuffed and wearing a jailhouse orange jumpsuit.
There's a warrant out for the lanky 31-year-old Fort Wayne man, subpoenaed twice in the case of Derrick Martin – a 29-year-old felon accused of unlawful possession of a firearm and possession of marijuana.
Pierson has run afoul of the courts twice – first by walking out of a scheduled deposition at the Allen County Prosecutor's Office and then again when he did not show up for a rescheduled deposition on Nov. 9. Depositions – recorded interviews of what witnesses intend to say at trial – are important for trial preparation on both sides of a case.
The first time, Pierson received a lecture from Allen Superior Judge Fran Gull – standing before her in his slippers, looking inconvenienced. The second time he was charged with felony obstruction of justice.
Allen County's judges, prosecutors and defense attorneys are fed up with the lackadaisical attitude many seem to have for the criminal justice system. And they've been cracking down in recent weeks, ordering witnesses held for contempt of court or in the case of Pierson and another scheduled witness in the Martin trial, Mario Gray, filing criminal charges.
"This isn't a joke. This is serious business," Gull said. "You have an obligation as a citizen … to participate in the life of the community."
Posted by Marcia Oddi on November 17, 2009 08:55 AM
Posted to Indiana Courts
Monday, November 16, 2009
Ind. Courts - Lugar and Sessions on Judge Hamilton
Jessia Brady of Roll Call reported at 3:49 PM this afternoon:
Senate Judiciary ranking member Jeff Sessions (R-Ala.) said Monday that he will filibuster the nomination of David Hamilton to serve on the 7th U.S. Circuit Court of Appeals.Maureen Groppe of the Gannett New Service reported a few minutes later:“I think I will support not going forward,” Sessions told reporters, criticizing Hamilton’s record as a district court judge in southern Indiana.
Sessions said Hamilton’s past rulings on abortion rights and prayer present “extraordinary” circumstances for a Senate filibuster, although he predicted the nomination will still be approved by the Senate this week. Senators are scheduled to vote on a procedural motion Tuesday to begin considering Hamilton’s nomination. The Judiciary Committee approved the pick along party lines in June.
Sessions also dismissed claims that Republicans are stalling action on judicial nominees or trying to run the clock on floor time to stem action on health care reform. In the case of Dawn Johnsen, President Barack Obama’s controversial choice to lead the Office of Legal Counsel, Sessions noted that bipartisan opposition has kept Majority Leader Harry Reid (D-Nev.) from pushing her confirmation.
“They complain about that one. Why don’t they file cloture? They probably don’t have the votes,” Sessions said.
WASHINGTON -- Sen. Richard Lugar defended Indiana Judge David Hamilton on Monday against criticism from fellow GOP senators that Hamilton is outside the mainstream. * * *[More] Here is Sylvia A Smith's report, Smith is the Washington editor of the Fort Wayne Journal Gazette. Her story comparing the positions of the two Senators begins:Alabama Sen. Jeff Sessions, the top Republican on the Senate Judiciary Committee, said Hamilton's nomination should be stopped because he's used his position as a federal district judge “to drive a political agenda.”
But Lugar, R-Ind., said a closer look at Hamilton's record shows he has not been a judicial activist and “has ruled objectively and within the judicial mainstream.”
One of Hamilton's rulings that has been most criticized is his 2005 decision that prayers said at the start of the Indiana House of Representatives sessions must not mention Jesus Christ or advance any religion.
Sessions said that while Hamilton prohibited specific mentions of Jesus, he allowed prayers that mentioned Allah.
Lugar said Hamilton's ruling was clear that legislative prayer advancing the religion of Islam would be prohibited, but that using Allah as a generic reference to the deity could be used in a non-sectarian prayer the way the word God is generically used.
“I support a more permissive approach to public prayer than Judge Hamilton,” Lugar said, “but clearly his ruling comports with Supreme Court authority.”
With Lugar's support, Democrats need all but one of the Senate's 58 Democrats and two Independents to vote for Hamilton to stop the filibuster.
After that vote, Republicans can insist on 30 hours of floor debate before a final vote on the nomination, which needs the support of only 50 senators. * * *
Lugar said in his floor speech that the confirmation process “should not be based on partisan considerations” and he has known David Hamilton since Hamilton's childhood and Hamilton's father was the Lugar family's pastor.
“Knowing first-hand his family's character and commitment to service,” Lugar said, “it has been no surprise to me that David's life has borne witness to the values learned in his youth.”
WASHINGTON – The leading critic of a Hoosier nominee for federal judge has it all wrong, Sen. Richard Lugar, R-Ind., told his colleagues Monday.Lugar said David Hamilton, President Obama’s first nominee for a federal appeals court post, "has not been a judicial activist and has ruled objectively and within the judicial mainstream."
The allegation was made by Sen. Jeff Sessions, R-Ala., who said Hamilton is unqualified, pushes a political agenda from the bench and should be rejected. Sessions is the senior Republican on the Judiciary Committee.
The Senate is expected to vote Tuesday on whether to stop a filibuster on Hamilton’s confirmation. Since June, Republicans have refused to permit a vote on Hamilton’s confirmation. Lugar will vote to end debate and allow the confirmation vote.
Posted by Marcia Oddi on November 16, 2009 06:48 PM
Posted to Indiana Courts
Ind. Courts - "Death Row Offender Wrinkles Waives Clemency"
A press release just issued by the Indiana Dept. of Correction:
Michigan City, Indiana (November 16, 2009) - The Indiana Parole Board received communication from Matthew Eric Wrinkles’ (DOC #952132) attorneys today. Wrinkles was provided notice of his legal rights to clemency on Monday, November 9th, 2009 by the Indiana Parole Board. Wrinkles was briefed, as well, by his attorneys via telephone and letter as to his rights to clemency , and subsequently, today, authorized his attorneys to waive the clemency process. The Indiana Parole Board received both written and telephonic communication today, November 16, 2009, from the attorneys representing Matthew Eric Wrinkles advising he had waived his right to clemency.Earlier ILB entries on Eric Wrinkles.The waiving of the right to clemency terminates the statutory responsibility of the Indiana Parole Board. All previously scheduled hearings, interviews, and proceedings are hereby officially canceled.
Posted by Marcia Oddi on November 16, 2009 04:57 PM
Posted to Indiana Courts
Ind. Courts - Supreme Court weighing use of tests in sentencing
A decision is pending in the case of Malenchik v. State, which was argued before the Supreme Court on Oct. 22, 2009. Here is a list of ILB entries on the case, which include the briefs filed with the Supreme Court.
Today the AP's Charles Wilson has a lengthy story on the issue presented by the case. It begins:
INDIANAPOLIS - A felon's friends and hobbies could influence how much time he spends behind bars if the Indiana Supreme Court upholds a lower-court ruling.At issue is a type of psychological test commonly used by probation officers to assess whether an offender is likely to commit more crimes and determine the level of supervision and type of treatment needed. A Tippecanoe County judge cited Anthony Malenchik's high test score in sentencing him to six years out of a possible 7 1/2 for receiving stolen property and being a habitual offender.
Malenchik appealed, but the appeals court upheld the judge's decision. Now, the Supreme Court is considering whether such tests have a place in the sentencing process. It heard arguments last month and is expected to rule in coming months.
Supporters say sentencing should be based on scientific, objective data and the tests -- often called scoring models or risk/needs assessments -- measure that.
But critics say the test used in Malenchik's case -- the Level of Service Inventory-Revised or LSI-R -- isn't intended to be used to determine prison time. They also say some of its 54 questions -- which ask about leisure activities, friends, family, marital relations and income -- should have no bearing on a judge's decision.
"The fact that he has relatives in jail or lives in a high crime area should not be given any weight in determining the length of his sentence," Melenchik's attorneys argued in their brief. "He should not be more severely punished because he came from a broken home, he is poor, or he is dissatisfied with his parents."
Posted by Marcia Oddi on November 16, 2009 04:39 PM
Posted to Ind. Sup.Ct. Decisions
Law - Some legislators in Maryland are shocked! shocked! at expansive definition of "slot machines"
Some quotes from a story today in the Washington Post, reported by John Wagner:
When Maryland legalized slot machines last year, the state stopped short of welcoming blackjack, roulette and other table games because of qualms about building full-scale casinos.But Marylanders are likely to get something a bit closer to Caesar's Palace than the simple slots parlor many voters and lawmakers imagined when they authorized five venues: State officials say they probably will allow electronic versions of the banned games when casinos start opening next year. * * *
The games do not use actual cards, chips or dice but in most other ways mimic the real thing. Players who gather around electronic blackjack tables, for instance, can double down or buy insurance with the press of a button as they try to beat the hand of a computerized dealer, sometimes wagering hundreds of dollars.
The virtual table games are classified as slots in most states largely because the chances of winning are determined and monitored by a computer with no direct human interaction.
Allowing live table games was never seriously discussed during the years of acrimonious legislative debate over bringing slots to Maryland, given lawmakers' skittishness about expanding gambling. Slots were considered more palatable, in part, because the games are less susceptible to fraud. And little was said about electronic versions of the games, which have become popular only in recent years.
"It's no surprise this industry would stretch the definition as far as it will go, but I don't think that was the understanding of voters or the General Assembly," said Del. Tom Hucker (D-Montgomery), who said he voted to put the slots measure on the ballot last year because he feared school budget cuts loomed as an alternative. He later campaigned against the ballot proposal.During the campaign, supporters played up the hundreds of millions of dollars that could be generated for education, and opponents warned of gambling addiction and other social ills. Neither side focused on the kinds of games that would be allowed, but there was nothing secret either, some lawmakers said.
"People should have done their homework if they thought this was some quaint little industry coming to Maryland," said Del. Justin D. Ross (D-Prince George's), a slots opponent. "As far as I can tell, these machines are perfectly legal. It's getting close to the line for sure, but it's on this side of the line." * * *
At an Indiana casino operated by the same firm that has proposed a 4,750-machine casino at a mall in Anne Arundel County, real-life employees often greet players at the virtual blackjack tables. They serve beer and offer high-fives when a player beats the computerized dealer.Gamblers at Indiana Live!, about 25 miles southeast of Indianapolis, also play an electronic version of roulette and compete at electronic poker tables. Next month, the casino plans to unveil its latest offering: electronic craps. Players will wager on virtual dice that they pretend to throw onto a large screen.
Posted by Marcia Oddi on November 16, 2009 03:31 PM
Posted to General Law Related
Environment - More on: Gary Post-Tribune alleges steel company gets special treatment because of IDEM commissioner
"'99 report raised concerns about waste, environment: No official inquiries in last 10 years on potential impact" is the headline today to engthy Pthe lart 2 of Gitte Laasby's story in the Gary Post-Tribune on special treatment by IDEM of a massive waste pile at Arcelor Mittal's Burns Harbor facility.
A second story today by Laasby is headed "Public records on waste missing." A quote:
When the Post-Tribune visited IDEM's Indianapolis file room in 2007, IDEM staff found at least 6 feet of paperwork related to Bethlehem Steel. But during a visit in mid-May 2009, IDEM staff found only 2 feet of documents. Others had a similar experience."I just went down and asked where the Bethlehem Steel files are," said Larry Davis, an ArcelorMittal worker and member of Save the Dunes Council. "It used to be anything to do with waste was never supposed to be purged. There used to be heaps of files. You'd spend a short lifetime down there going through a big company like that. None of that is on the virtual file cabinet. I don't know what happened to those files."
IDEM is scanning files from its archives into its searchable database online. During the transition, many files have disappeared from the archives.
"Prior to scanning records into the virtual file cabinet, all records were reviewed so that duplicative records and records past their retention schedule were not scanned. New records are added daily to the virtual file cabinet," IDEM spokeswoman Amy Hartsock said.
Hartsock said IDEM began entering documents into a virtual file cabinet starting with drinking water records and is still adding records for the air, land and water programs.
Yet, ArcelorMittal Burns Harbor appears to be the only Northwest Indiana steel mill for which only records related to air are available when one does search for the facility's name.
Searches for U.S. Steel Gary Works and ArcelorMittal's Indiana Harbor plant yield records about air, landfills, hazardous waste sites and water quality.
To find any information on ArcelorMittal Burns Harbor's proposed landfill, requestors have to search for "Deerfield Storage Facility" or a specific document number provided by IDEM staff.
However, even the company's landfill application doesn't address whether the company intends to landfill the waste.
Posted by Marcia Oddi on November 16, 2009 03:13 PM
Posted to Environment
Courts - "New Justice Sotomayor Emerges as Frequent -- and Tough -- Questioner"
So writes Tony Mauro in this article for The National Law Journal. A sample:
As Sotomayor wraps up her second full argument cycle as a Supreme Court justice, it has become clear that she is a prolific and fearless questioner. She can be tenacious and direct, bordering on harsh. She can be impatient when the lawyer does not answer her question precisely. She knows her stuff and clearly loves the give and take.And from Speakeasy, the WSJ "blog about media, entertainment, celebrity and the arts," this item from Jess Bravin:All of which is to say, Sotomayor fits right in with her new colleagues, many of whom do exactly the same thing. Chief Justice John Roberts Jr. and Samuel Alito Jr. can be every bit as dismissive, Stephen Breyer can be just as persistent and wordy, and Antonin Scalia can be just as critical. No, Scalia is more critical: During one argument last week, Scalia told an advocate, "The big obstacle I find with your position is that it doesn't make any sense."
What's notable is that Sotomayor has tuned into the high court's wavelength so early in her tenure. The memo about new justices being seen more than heard must have gotten lost in the interoffice mail. During the final oral argument last week, Hertz v. Friend, Sotomayor asked 16 questions, more than any other justice.
Last month, I advised my Twitter followers that noted photographer Annie Leibowitz had announced plans to shoot Justice Sonia Sotomayor for Vogue. Coming days after GQ featured Chief Justice John Roberts, it seemed like the birth of a whole new style epoch–haute cour couture, if you will.Regrettably, the high court is not yet that fashion forward. After Leibowitz’s remarks at the California Women’s Conference in Long Beach, Calif., we checked with the Supreme Court. Despite the anticipation coming off her cover shoot for Latina magazine, Sotomayor had declined to pose for Vogue. Because of the justice’s heavy workload, she is “limiting commitments as she settles into her new responsibilities at the court,” a spokeswoman said.
Perhaps Leibowitz isn’t used to being turned down. “It was a miscommunication and a misunderstanding,” said Vogue spokesman Patrick O’Connell. Leibowitz had been excited by the thought of photographing the newest justice, he said, and did not know the invitation had been declined . “We would love to work with the justice in the future ,” he added.
Posted by Marcia Oddi on November 16, 2009 02:59 PM
Posted to Courts in general
Ind. Decisions - Court of Appeals issues 7 today (and 4 NFP)
For publication opinions today (7):
In Lawrence E. Nunley v. State of Indiana, an 18-page opinion, Judge May writes:
Lawrence E. Nunley appeals his convictions of four counts of Class A felony child molesting and one count of Class D felony dissemination of matter harmful to minors. We conclude an interview conducted a year after the molestation lacks sufficient indicia of reliability; therefore, the videotape of the interview and the witness testimony that repeated the contents of the interview should not have been admitted. Because this was the only evidence supporting Counts 3 and 4, we reverse those convictions. However, we find no reversible error as to the remaining convictions. Therefore, we reverse in part and affirm in part.In Bonita G. Hilliard, et al. v. Timothy E. Jacobs , a 14-page, 2-1 opinion, Judge Mathias writes:
The Greene Circuit Court ordered Bonita G. Hilliard (“Bonita”), in her capacity as the Trustee of the H. David and Bonita G. Hilliard Living Trust, to pay post-judgment interest to Timothy E. Jacobs (“Jacobs”). Bonita appeals and argues that the trial court erred in ordering her to pay post-judgment interest because the court had not entered a money judgment subject to the post-judgment interest statute, Indiana Code section 24-4.6-1-101 (2006). We reverse and remand. * * *In Frederick D. Fox v. State of Indiana , a 6-page opinion, Judge May writes:In conclusion, the trial court's order returning to Jacobs the insurance policies was not a “judgment for money” subject to post-judgment interest under Section 101. It was instead an order granting ownership of the policies to Jacobs. The trial court therefore erred in awarding Jacobs 8% in post-judgment interest pursuant to Section 101. Reversed and remanded.
ROBB, J., concur.
DARDEN, J., dissents with opinion. [that concludes] In other words, the facts of this case have long dictated certainty in the amount of the judgment, to wit: the face values of the insurance policies. Accordingly, I would find the order of that date to be a money judgment.
Frederick D. Fox appeals his sentence for Class D felony possession of a controlled substance. Fox asserts the trial court abused its discretion by denying his request for alternative misdemeanor sentencing. He also argues we should use our authority under Ind. Appellate Rule 7 to modify this conviction to a Class A misdemeanor. We affirm.Jerell Owens v. State of Indiana - "The trial court did not deny Owens his right to due process when the court re-sentenced Owens on his murder conviction to a sentence that is five years greater in length, but did not exceed the aggregate sentence originally imposed on both convictions at issue. In addition, the trial court did not abuse its discretion when it imposed consecutive sentences because it identified sufficient aggravating circumstances to support the imposition of such sentencing. Finally, Owens's seventy-three year sentence is not inappropriate in light of the nature of the offense and the character of the offender."
In Kenya Lee v. State of Indiana , a 4-page opinion, Sr. Judge Garrard writes:
On appeal, Lee contends the court abused its discretion by admitting hearsay evidence regarding the identity of the woman he was prohibited from contacting. * * * [Citing Evid. R. 901(b)(5)] Thus, it was proper for Detective Carter to testify on the basis of his familiarity with Washington’s voice, that she was the person whom Lee called and was speaking to from the jail on September 21st and 22nd. The trial court did not err in admitting evidence. Affirmed.In Jerold Jackson and Virginia Jackson v. The Board of Commissioners of the County of Monroe, Vova Johnson, et al, a 15-page opinion, Judge May writes:
Jerold and Virginia Jackson appeal the trial court’s determination that a road running through their property is a public road. We reverse. * * *In Thomas L. Vandenburgh v. Candace A. Vandenburgh, a 14-page opinion, Judge May concludes:However, because Segment AB is not a public road, the remainder of the road is inaccessible to the public. Segments BC and CD are located entirely on one property and are not open on either end. No purpose can be served by finding Adams dedicated one or both of them to the public. Such a holding would serve only to upset the expectations of the Jacksons, who are the record title holders of this property and had no indication from other public records that the road may be a public road. Therefore, we conclude the entire disputed portion of Baxter Branch is a private road.
We decline to address Father’s allegations of error that are not supported with cogent argument, references to the record, or support from legal authorities and we accordingly affirm the trial court. However, we find sua sponte that the modification order must be clarified to the extent it did not explain in detail how the court arrived at the amounts it awarded. We therefore remand for clarification of that matter and for resolution of the apparent inconsistency as to the $4,210.00 credit the trial court gave Mother. Affirmed and remanded.
NFP civil opinions today (1):The Invol. Term. of the Parent-Child Rel. of K.A., J.L. v. Marion Co. Dept. of Child Svcs., et al. (NFP)
NFP criminal opinions today (3):
Jennifer Leonard v. State of Indiana (NFP)
Christopher Macy v. State of Indiana (NFP)
Johnie B. Moody, Jr. v. State of Indiana (NFP)
Posted by Marcia Oddi on November 16, 2009 01:14 PM
Posted to Ind. App.Ct. Decisions
Ind. Decisions - Tax Court decides one today
In Ameritech Publishing, Inc. v. Indiana Dept. of State Revenue, an 11-page opinion, Judge Fisher writes:
Three years ago, this Court issued an unpublished decision in which it held that, during a portion of the 1998 through 2003 tax years, Ameritech Publishing, Inc.'s (API) out-of-state purchases of paper and printing services and its in-state use of telephone directories were not subject to Indiana use tax. * * *The Department asserts that it has presented new arguments in this case but, in distilling those arguments, the Court finds that they are nothing more than reiterations of the Department's arguments in API I. Accordingly, pursuant to the facts as stipulated to by the parties and the relevant law as codified at Indiana Code § 6-2.5-3-2, the Court holds that API's in-state use of its telephone directories, during the years at issue, were not subject to Indiana use tax. Therefore, the Department's final determination is REVERSED and the Department is ordered to refund to API the use taxes it paid during the years at issue.
Posted by Marcia Oddi on November 16, 2009 01:07 PM
Posted to Ind. Tax Ct. Decisions
Environment - "Porter County Commissioners OK regulations for wind turbines" [Updated]
Updating this list of earlier ILB entries on wind turbines in Porter County, Jane Huh of the Gary Post-Tribune reports today:
A new energy source for Porter County is blowing in the wind.The story is accompanied by a side-bar about the ordinance:Porter County Commissioners laid out the welcome mat for alternative energy projects when they approved two amendments to the county's unified development ordinance last month.
The new set of standards specifically addresses wind energy conversion systems like the one developing in the southeast part of the county.
The LaCrosse Wind Farm project, which straddles Porter and LaPorte counties, initiated the regulations on wind turbines.
"By having an ordinance in place, we'll know how to deal with (large wind energy farms)," said Bob Thompson, executive director of the Porter County Plan Commission.
But ultimately, "it's up to (the companies to decide) if it's profitable for them to develop this in the county," Thompson said.
TradeWind Energy, an energy development company based in Lenexa, Kan., has been plugging away to secure agreements with local landowners for a potential wind turbine farm in Pleasant Township.
Landing contracts for financing, gathering meteorological research and acquiring more land are under way to "set the stage for a sale," said Duane Enger, project manager.
TradeWind Energy is looking at just under 30,000 acres of land to lease, he said.
"The turbines have to be in an area contiguous to the project for us to lease their ground and generate revenue stream."
Enger expects the project to "come to fruition in three to five years."
"Right now, we're getting the front-end work completed," he said.
The amendments outline parameters for large industrial wind farms and on-site residential wind energy systems.
Among the general requirements, large wind energy conversion systems must meet particular standards of height, appearance, clearance, lighting and noise.
All wind energy conversion systems must be "of uniform design, including tower type, color, number of blades, and direction of blade rotation," the ordinance states.
Wind energy technology is already established in Benton County with its Fowler Ridge Wind Farm in Earl Park.
The wind farm, which became operational earlier this spring, is under way with a project to bolster its capacity to 600 megawatts and become the largest wind farm in the Midwest.
* Turbines cannot exceed 500 feet in height and the minimum distance between turbines must be two times the total height.[Updated] This afternoon a story from the Lafayette Journal Courier, reporting:* Large wind energy systems must also be at least 600 feet away from the boundaries of any wetland.
* The system must be designed "such that shadow flicker will not fall on, or in any existing occupied building."
* Shadow flicker, defined as the "on-and-off flickering effect of a shadow caused when the sun passes behind the rotor of a wind turbine," is acceptable depending on circumstances.
The ordinance allows shadow flickering as long as it doesn't exceed 10 hours per day, falls within 100 feet from an existing residence and doesn't fall on an intersection. The flickering is also permissible when traffic volume is fewer than 500 vehicles a day on a roadway.
If those conditions are not met, the system must be "shut down until the flicker is remedied," the ordinance states.
* For the smaller, on-site systems, used mainly for residential purposes, the minimum lot area must be 2.5 acres large.
* On-site turbines that sit on property that is at least 15,000 square feet but less than an acre, cannot exceed 50 feet in height. The total height cannot exceed 75 feet on property one acre large or greater.
The Carroll County Commissioners approved an ordinance today detailing rules and regulations for commercial wind energy developers.The ordinance details what is expected of companies that want to install wind turbines in the county. Setbacks, height restrictions and pre-construction requirements, such as governmental clearance, are part of the county's first ordinance about wind energy.
Miriam Robeson, a volunteer with the Carroll County Zoning Steering Committee who helped write and research the ordinance, said Carroll County does not have turbines but expects there will be interest to lease land.
Already, Benton County has more than 300 wind turbines operated by two separate companies.
In Clinton and Tipton counties, there are plans to install and operate up to 200, 2.5-megawatt windmills. Another wind farm is under way north of Lafayette near Chalmers in White County.
"If someone is interested in our county, they see that we are already to go," Robeson said.
The commissioners unanimously approved the ordinance at their regular meeting in Delphi.
Posted by Marcia Oddi on November 16, 2009 12:47 PM
Posted to Environment
Ind. Gov't. - More on "State government began laying off employees today in order to cut costs"
Updating this ILB entry from Friday the 13th, Eric Bradner of the Evansville Courier & Press has a story headed "Layoffs part of state's effort to trim budget." From the story:
Meanwhile, Indiana is dipping into a wide range of state funds, including several devoted to improving or protecting the environment and natural resources.The AP has a longer story headed "State environment funds feel pinch of budget cuts."Twenty-three dedicated funds are on an initial list that Daniels' administration expects to tap to combat the revenue shortfall — and a quarter of those have missions related to the state's environment or natural resources.
Those include funds that promote recycling, help remove invasive aquatic plants clogging some of the state's lakes and support efforts to redevelop old industrial sites.
State Budget Director Chris Ruhl said environmental groups aren't being targeted and that the Indiana Department of Environmental Management maintains more such funds than most other agencies.
"Its target list is larger than other agencies, and frankly, IDEM has a lot of funds where there's excess or surplus monies," he said.
Posted by Marcia Oddi on November 16, 2009 12:36 PM
Posted to Environment | Indiana Government
Law - "Indoor Tanning Association dispatches lawyer to Muncie"
Seth Slabaugh reports today in the Muncie Star-Press in a long story that begins:
MUNCIE -- Delaware County's proposed ordinance to regulate tanning salons has caught the attention of the Indoor Tanning Association, a national trade group based in Washington, D.C., which sent one of its attorneys here last month to express concern.The county health department plans to start inspecting tanning facilities, with an emphasis on protecting minors.
ITA is hopeful that once county officials hear both sides of the issue they will conclude that local regulation "is something that really isn't necessary," said ITA president John Overstreet.
"Indiana is already one of the more heavily regulated states," Overstreet said. "We're just not seeing any problems justifying the health department getting involved with it.
"With all sorts of big public health concerns like AIDS and swine flu that health departments are facing, we're a little bit mystified why they would want to pull away precious resources to address something that's not a real problem."
But even after meeting with ITA's attorney, county health officials still hope that county commissioners will enact the ordinance, which is being drafted.
While tanning salons already are licensed by the State Board of Cosmetology Examiners, that agency lacks the manpower to inspect tanning facilities and enforce state laws.
What prompted local health officials to take action was the International Agency for Research on Cancer's classification of the use of ultraviolet-emitting tanning devices as "carcinogenic to humans."
Posted by Marcia Oddi on November 16, 2009 12:20 PM
Posted to Indiana Law
Courts - "A showdown is set for Tuesday with Judge David Hamilton's nomination"
Here is a companion to the story posted here yesterday from The Hill. David G. Savage of the LA Tmes reports today in a story headed: "For Obama judicial nominees, confirmation is slow process: Senate Republicans have quietly used their minority power to block candidates to the lower federal courts. A showdown is set for Tuesday with Judge David Hamilton's nomination." A quote from the long story:
But liberal activists have voiced growing irritation that Republicans are quietly using their minority power to block Senate votes on Obama's judicial nominees. They note that during the Bush administration, Republicans insisted the president's nominees deserved up-or-down votes. * * *[More] See this lengthy Nov. 14th story by Charlie Savage in the NY Times, headlined "Obama Backers Fear Opportunities to Reshape Judiciary Are Slipping Away."The dispute is due to come to a head Tuesday, when the Senate votes on whether to cut off debate on Judge David F. Hamilton of Indiana, Obama's first court nominee.
In mid-March, the White House trumpeted Hamilton’s nomination to the U.S. 7th Circuit Court of Appeals in Chicago and cited the choice as an example of "setting a new tone" and putting "the confirmation wars behind us."
A veteran trial judge with the reputation of a moderate, Hamilton was the son and grandson of Methodist ministers in southern Indiana. The state's well-respected Republican Sen. Richard G. Lugar also said he "enthusiastically supported" the nomination.
But Hamilton ran into a buzz saw of criticism from conservative activists in Washington. They noted he had worked for the American Civil Liberties Union before becoming a judge in 1994.
Posted by Marcia Oddi on November 16, 2009 07:50 AM
Posted to Courts in general
The Indiana Law Blog: Catch-up: What did you miss over the weekend?
The Monday feature - "What did you miss over the weekend?"
From Sunday, Nov. 15, 2009:
- Ind. Law - "Getting off (nearly) scot-free: Is the penalty too light for convicted embezzlers?"
- Courts - "Conservatives split over filibuster of Obama court pick"
- Law - "Prostitution Now Outlawed In R.I."
- Environment - Gary Post-Tribune alleges steel company gets special treatment because of IDEM commissioner
- Law - "Special report | Fighting domestic violence in Kentucky"
- Ind. Courts - "Cap n’ Cork owner sues state over wine laws"
- Ind. Gov't. - "Late tax bills force counties to borrow millions"
- Ind. Gov't - Access to Power: How lobbyists buy legislators' time and attention
- Law - "Financial Decisions to Make as You Divorce"
From Saturday, Nov. 14, 2009:
- Courts - More on: Kentucky judge rejects mayoral candidate's motion to seal divorce files
- Ind. Law - "Boxes of medical files found abandoned in South Bend"
From afternoon of Friday, Nov. 13, 2009:
Posted by Marcia Oddi on November 16, 2009 07:40 AM
Posted to Catch-up
Ind. Decisions - Upcoming oral arguments this week and next
This week's oral arguments before the Supreme Court (week of 11/16/09):
Tuesday, November 17th
- 9:00 AM - Gabino Gonzalez v. State of Indiana (82S01-0909-CR-408) Gonzalez was intoxicated when the truck he was driving struck a school bus. He wrote a letter to the school corporation admitting he had consumed alcohol and apologizing for the accident. The letter was admitted at trial over Gonzalez's objection, and a Vanderburgh Superior Court jury found him guilty of criminal mischief and operating a vehicle while intoxicated. The Court of Appeals reversed, finding the letter was part of the pre-trial plea negotiations and its admission was reversible error. Gonzalez v. State, N.E.2d (Ind. Ct. App. 3/20/2009), vacated. The Supreme Court has granted a petition to transfer the case and has assumed jurisdiction over the appeal.
- 9:45 AM - Chawknee Caruthers v. State of Indiana (46S05-0910-CR-431) Caruthers was convicted of murder after a jury trial in the LaPorte Superior Court. The Court of
Appeals reversed the conviction because the trial court had not investigated the possible
prejudicial impact that certain threats against the jury may have had on the jury's deliberations.
Caruthers v. State, N.E.2d (Ind. Ct. App. 7/15/2009), vacated. The Supreme Court has granted a
petition to transfer the case and has assumed jurisdiction over the appeal. [ILB summary here - 2nd case]
[See also July 16th ILB entry headed "The 2008 murder conviction of Chawknee Caruthers, who was given a 100-year prison sentence, was reversed Thursday."
Next week's oral arguments before the Supreme Court (week of 11/23/09):
Tuesday, November 23rd
- 9:00 AM - Walker Whatley v. State of Indiana - A jury found Whatley guilty of possessing cocaine in a quantity in excess of three grams within one-thousand feet of a "youth program center," a class A felony, see Ind. Code § 35-48-4-6(b)(3)(B)(iv). The Marion Superior Court entered judgment accordingly. The Court of Appeals reversed on grounds that Whatley had been near a church, not a youth program center, and directed entry of a conviction as a class C felony. Whatley v. State, 906 N.E.2d 259 (Ind. Ct. App. 5/24/2009), vacated. The Supreme Court has granted a petition to transfer the case and has assumed jurisdiction over the appeal. [ILB summary here - 5th case.]
- 9:45 AM - Wells Fargo Bank N.A. v. Brett Gibson - In this mortgage foreclosure action, the Marion Superior Court granted equitable subrogation to buyers of the property and their lender but denied their requests for interest and a sheriff's sale of the property. The Court of Appeals affirmed in part and reversed in part, holding that the buyers and lender were entitled to statutory interest and a sheriff's sale. Wells Fargo v. Gibson, 905 N.E.2d 465 (Ind. Ct. App. 4/28/2009), vacated. The Supreme Court has granted a petition to transfer the case and has assumed jurisdiction over the appeal. [ILB summary here.]
ALL Supreme Court oral arguments are videocast and accessible here, unless otherwise noted.
This week's oral arguments before the Court of Appeals (week of 11/16/09):
Tuesday, November 17th
- 10:30 AM - Anna Williams, et al v. Jayme M. Adelsperger, D.D.S. - The Williamses commenced an action in December 2004 against Dr. Adelsperger alleging malpractice through August 2002. The trial court granted summary judgment for the doctor on the ground the limitations period had run. The Williamses argue the statute of limitations, which requires an action be brought within two years of the alleged malpractice, should not be applied to them because even though they suspected malpractice as early as 2003, the doctor actively denied the plaintiff's symptoms were related to her treatment. The Scheduled Panel Members are: Judges Bailey, May and Vaidik. [Where: Saint Mary-of-the-Woods College, Saint Mary-of-the-Woods, Indiana]
- No arguments scheduled.
ONLY those Court of Appeals oral arguments presented in the Supreme or Court of Appeals Courtrooms will be accessible via videocast.
The past COA webcasts which have been webcast are accessible here.
Posted by Marcia Oddi on November 16, 2009 06:54 AM
Posted to Upcoming Oral Arguments
Sunday, November 15, 2009
Ind. Law - "Getting off (nearly) scot-free: Is the penalty too light for convicted embezzlers?"
That is the headline to this story by Laurie Wink in the Sunday Michigan City News-Dispatch:
LA PORTE - Local and area businesses, churches and organizations have lost thousands of dollars to trusted employees turned embezzlers. The embezzlers usually don't pay back all the money, and they're rarely incarcerated.Embezzlers initially are charged with Class D felony theft but, through plea agreements, charges can be reduced to Class A misdemeanors, with time served on probation. Terms are reached in pre-trial negotiations between the prosecutor's office and the defendant's attorney.
Such discussions are under way between La Porte County Deputy Prosecutor Alan Sirinek and defense attorney Steve Snyder in the case of Sara Suppa, 22, La Porte.
"The pre-trial conference is to see if the attorney and I can see if we can reach a plea agreement. It's just a sharing of ideas with respect to the case," Sirinek said.
Suppa was charged in September with multiple counts of Class D felony theft for embezzling $49,000 from Moore's Auto Repair, 942 Greene St., and pleaded not guilty. Business owner Steve Moore hired Suppa as the company's bookkeeper in May 2008. He said the thefts began that August, and he didn't catch on to them until this August.
Karen Ashcraft, a former employee of Naturally Wood Furniture Center, was convicted in 2007 of embezzling from the company. President Mark Schoonaert said she stole more than $100,000 over a four-year period. Through a plea agreement, Ashcraft did not go to jail and was ordered to pay Schoonaert less than $12,750. To date, Schoonaert has received a total of $4,350, mostly in small amounts that come in monthly.
Schoonaert received $3,200 in June this year when Ashcraft cashed in a 401k - the one he contributed to as an employment benefit. He said the after-tax amount was $4,930 so he's left wondering what happened to the extra $1,730.
"Another interesting thing about the whole situation is, I know several cases when they (embezzlers) gambled," he said. "There's no (court) restriction to avoid casino gambling. In my case, she was one of those special club members at the casino."
The only way Schoonaert finds out about what is happening in Ashcraft's case is when he calls the probation department. He's trying to stop thinking about the money he lost.
"I don't know where the case is now," he said. "I have to distance myself from it."
La Porte County Prosecutor Robert Beckman said the charge for embezzlement is Class D felony theft "because that's what it is." Beckman said the sentence imposed in each case is based on facts - the defendant's prior criminal record, the amount of money taken and the period of time it took place. Indiana law states a person who commits a Class D felony could receive a sentence from six months to three years, with an advisory sentence of one and a half years.
Plea agreements aren't unique to embezzlement cases, according to Beckman, who said 99.9 percent of criminal cases involve a plea agreement and about 90 percent of sentences don't involve jail time. With some 6,000 criminal cases filed in La Porte County each year, Beckman said it comes down to economics.
"Taxpayers can't afford to have enough courts and courthouses and jails," Beckman said.
La Porte County Circuit Court Judge Tom Alevizos, formerly a deputy prosecutor, has seen his share of embezzlement cases. He sympathizes with victimized business owners because he comes from a family of business owners.
Alevizos said that, as a judge, he's able to reject a plea that he believes is unwarranted.
Posted by Marcia Oddi on November 15, 2009 05:07 PM
Posted to Indiana Law
Courts - "Conservatives split over filibuster of Obama court pick"
That is the headline to this story by Alexander Bolton, reporting for The Hill. The long story begins:
Leading conservative activists are split over whether to filibuster Judge David Hamilton, whose nomination to the 7th Circuit will serve as a test case for President Barack Obama’s more controversial appellate court picks.Twenty four leading conservatives have signed a memo urging Republican senators to filibuster Hamilton, setting the stage for the first protracted Senate fight over one of Obama’s judicial nominees.
Hamilton will likely receive an up-or-down vote because Democrats control 60 seats, but conservative and liberal advocates say a filibuster would be significant because it would serve as a precedent for Obama’s future judicial nominees.
But the effort to build momentum for a filibuster has become snagged on dissent within conservative circles over whether it is the right strategy. The outcome of the debate may influence how Senate Republicans, such as Sen. Jeff Sessions (R-Ala.), proceed on other controversial nominees.
Posted by Marcia Oddi on November 15, 2009 05:04 PM
Posted to Courts in general
Law - "Prostitution Now Outlawed In R.I."
NPR's Weekend Edition this morning had this story by Iam Donnis. It begins:
Until earlier this month, Rhode Island was the only place in the country where prostitution was legal across an entire state — because of an unintended loophole in the law. But the move to close that loophole is fueling concerns that victims of the sex trade are being put at even more risk.And it turns out the WSJ had a story Nov. 3 that includes this quote:Back in 1980, the Rhode Island General Assembly passed a law meant to speed the prosecution of streetwalkers. But in the process, legislators unwittingly decriminalized prostitution that took place indoors. This loophole didn't attract much notice for years.
Then, in 2003, a court case made it clear that prostitutes were free from prosecution if their sex trade occurred behind closed doors. The result has been a growing number of so-called Asian spas that critics say are thinly veiled brothels.
State lawmakers inadvertently opened the loophole in 1980 when they passed legislation trying to crack down on prostitutes and their customers creating havoc in the West End of Providence. They adopted a law targeting those who sold sex in public, but it was silent on indoor prostitution. Judges would later rule the change had the effect of legalizing paid sex in private.A 154-page senior honor paper by Melanie Shapiro of the U. of R.I., titled "Sex Trafficking and Decriminalized Prostitution in Rhode Island" gives the history of the provision, and discusses the court cases. See also this Nov. 3, 2009 release from the Roger Williams School of Law.That legal gap allowed dozens of suspected brothels to operate in the state's cities and suburbs, including many thinly disguised as Asian spas advertising services such as body rubs and table showers in a weekly newspaper. Until recently, police had struggled to prosecute those involved in the trade.
In 2003, a state judge dismissed charges against prostitutes working just blocks from City Hall. Their lawyer admitted the women offered sex for cash, but he said it didn't matter because indoor prostitution was legal.
Posted by Marcia Oddi on November 15, 2009 12:10 PM
Posted to General Law Related
Environment - Gary Post-Tribune alleges steel company gets special treatment because of IDEM commissioner
"Fate of 'Easterly's pile' at ArcelorMittal remains unknown" is the headline to this story by Gitte Laasby of the Gary Post-Tribune, the first of two parts. The lengthy story begins:
The heaping mounds of metallic-gray, lumpy steelmaking waste and rusty metal pieces tower up to 35 feet in the air, spread across a 33-acre sandy area in the northeast corner of ArcelorMittal's Burns Harbor property.Parts of the massive, dirty heaps have sat directly on the ground for up to 24 years, exposed to the elements with no protection of air, soil or the groundwater that flows north to Lake Michigan just a foot below. The waste contains toxics like lead, chromium, cadmium, silver and nickel in concentrations high enough to require disposal in a landfill.
Hidden behind a row of trees 200 feet from the Indiana Dunes National Lakeshore and the waters of Lake Michigan, the waste doesn't attract much attention. Even at the Indiana Department of Environmental Management, managers have turned a blind eye -- perhaps because ArcelorMittal representatives say the piles have a connection to the man in charge of IDEM.
"They said, 'We call this "Easterly's pile" because he's the one who started it.' And it's never stopped growing," said a confidential source within IDEM.
The name of the piles refers to IDEM Commissioner Tom Easterly, the state's highest environmental official. From 1994 to 2000, he was the top environmental manager at one of ArcelorMittal's predecessors, Bethlehem Steel Corp.
Posted by Marcia Oddi on November 15, 2009 11:26 AM
Posted to Environment
Law - "Special report | Fighting domestic violence in Kentucky"
The Louisville Courier Journal today has a number of stories on fighting domestic violence in the state. Here is the lead story by Andrew Wolfson. Other stories today linked from that lead story:
# Graphic: How GPS monitoring worksIndiana, as of July 1, 2009, is one of the states that allows GPS monitoring.* See the LCJ graphic on how GPS monitoring works.
# Efforts to extend protection to daters stall in legislature
# Protective order didn’t stop man from shooting girlfriend, mother
# 12 states use GPS monitoring
# Domestic-violence slayings in Kentucky
# The proposed GPS monitoring law
# Slain abuse victims who had protective orders
# EPO vs. DVO: What’s the difference?
# Fighting domestic violence: What you can do
____________
* The ILB will have more about the Indiana statute in another entry.
Posted by Marcia Oddi on November 15, 2009 11:13 AM
Posted to General Law Related
Ind. Courts - "Cap n’ Cork owner sues state over wine laws"
Niki Kelly of the Fort Wayne Journal Gazette reports today in a long story that begins:
INDIANAPOLIS – For more than 20 years, Cap n’ Cork liquor stores in Fort Wayne have shipped wine using a third-party delivery company to area customers who have joined wine clubs.More from the story:Until May.
That’s when the Indiana State Excise Police showed up and cited Cap n’ Cork for violating its alcohol permit. State law prohibits home delivery of alcohol by liquor stores unless they use their own employees.
And now Andy Lebamoff, co-owner of Cap n’ Cork, has filed suit, challenging the law as unconstitutional and claiming another law allowing wineries to ship using a third-party common carrier is discriminatory.
“It’s a good business. We collect sales tax for Indiana,” he said, noting $110,000 a year in taxes from the practice. “We’re just looking for fairness.”
Lebamoff claims he received permission from the then-Alcoholic Beverage Commission in the 1980s. He said the wine comes from an out-of-state retailer to an in-state wholesaler. Then it is sent to Cap n’ Cork for delivery by UPS.
Even the chairman of a legislative study committee on alcohol issues recently admitted at a hearing that he has received wine from Cap n’ Cork by UPS after joining a wine club while visiting Napa Valley in California.
But the Indiana State Excise Police said they received a complaint about the practice and began an investigation. The excise police have cited one other liquor store in the state for similar shipping violations.
“There is no record at the ATC of Cap n’ Cork receiving permission to ship their product via common carrier,” said Jennifer Fults, spokeswoman for the excise police. “The scope of a package store permit would prohibit them from doing so.”
Lebamoff complains that he was caught in a sting by the Wine and Spirits Distributors of Indiana in what has essentially become a turf war.
Jim Purucker, Wine and Spirits executive director, laughs at the accusation of a sting. After all, he is the one who made the complaint, and he said he had no idea a Fort Wayne liquor store would become involved.
It started when he received a direct-mail solicitation from a California retailer to join the NRA Wine Club. He signed up as a lark, expecting the club to follow the law and deny him shipping.
He said the shipment is illegal for several reasons.
First, a retailer does not have shipping privileges under Indiana law. And second, while wineries have limited direct-shipping rights, the customer must first have a face-to-face transaction with the winery.
To Purucker’s surprise, he was accepted into the club, and a box of wine from Cap n’ Cork showed up on his porch by way of UPS.
So he reported it to the Alcohol and Tobacco Commission.
The lawsuit was originally filed in Marion Superior Court on behalf of Lebamoff Enterprises and two central Indiana Cap n’ Cork customers who want wine shipped to their home.The suit came days after the state won another wine-shipping battle upholding the state’s face-to-face transaction requirement for wineries.
It has since been moved to federal court, and Cap n’ Cork attorney Robert Epstein is preparing a motion for summary judgment – akin to a dismissal of the case.
He claims the state restrictions violate the Commerce Clause of the U.S. Constitution and discriminate against liquor stores in favor of wineries.
“This is an archaic state,” Epstein said. “Thirty-five states allow direct shipment of wine without hassle. But not here.”
Posted by Marcia Oddi on November 15, 2009 11:08 AM
Posted to Indiana Courts | Indiana Government | Indiana Law
Ind. Gov't. - "Late tax bills force counties to borrow millions"
Mike Smith of the AP has this long story that begins:
INDIANAPOLIS — Nearly every Indiana county has failed to send property tax bills on time this year, forcing many local governments and schools to borrow millions and providing further proof that Indiana’s tax system is still a work in progress more than a decade after a court ordered a massive overhaul.Only two of the state’s 92 counties sent tax bills on time, and 17 were more than six months late sending out the first of this year’s two bills, according to an Associated Press review of data from the Department of Local Government Finance, which regulates the property tax system.
Posted by Marcia Oddi on November 15, 2009 11:05 AM
Posted to Indiana Government
Ind. Gov't - Access to Power: How lobbyists buy legislators' time and attention
Many Indiana papers today have stories and editorials on lobbying and legislative eithics, including:
- Fort Wayne Journal Gazette - "Money, access and power," "‘Lobbying’ shouldn’t be considered a dirty word."
- Evansville Courier & Press - "Access to Power." The Courier & Press is also one of the papers that publishes a "preemptive" letter from House Speaker Patrick Bauer that begins:
I know it is tempting to portray the Indiana General Assembly as having a deaf ear toward ethical behavior, but I find such opinions do not match the commitment that the men and women in the Indiana House and Senate have toward meeting the public's trust.
When confronted with violations of that trust, it has been my experience that lawmakers have moved quickly to respond to public concerns.
- NWI Times - "Bauer's reforms fall short" that begins:
Efforts to push legislative ethics reform through the Indiana General Assembly have long faced an insurmountable obstacle in the person of House Speaker Pat Bauer.
The South Bend Democrat, a fixture in the House for nearly 40 years, has the power to kill almost any bill that doesn't meet his approval. Until recently, that meant doom for proposals to crack down on the cozy relationships lobbyists have built with lawmakers.
In October, however, Bauer unexpectedly announced his own reform package, including a one-year waiting period before legislators could become lobbyists.
Bauer announced his plan five days after members of The Indianapolis Star Editorial Board informed the Speaker's aides that 23 Indiana newspapers were preparing to launch an ethics reform campaign.
The Speaker is an important and welcome ally in the fight to reduce lobbyists' access to power in the Statehouse. His plan, however, falls short on several key fronts.
- Indianapolis Star - "Legislators feast on perks." A couple quotes:
Lobbying firms employ one other valuable tool to wield influence -- the potential for a legislator to accept a six-figure job as a lobbyist.
In Indiana, unlike in many other states, legislators can leave public office and start work immediately as paid lobbyists. More than 30 former legislators, including high-profile leaders such as former House Speaker Paul Mannweiler and former Senate Finance Committee Chairman Larry Borst, have switched from making laws inside the chambers to shaping them in the Statehouse hallways. In some cases, legislators have lined up jobs as lobbyists while still voting on bills that affect their future employer's interests.
Many of the lawmakers-turned-lobbyists receive generous legislative pensions and taxpayer-subsidized health care.
Lobbyists' influence in the Statehouse is on the rise, with their numbers and the amount of money they spend at record highs. More than 750 individuals and 795 organizations and law firms are registered as lobbyists in Indiana. In the most recent annual reporting period, which ended April 30, lobbyists spent more than $25.8 million trying to shape Indiana's laws. The small state agency, the Indiana Lobby Registration Commission, charged with tracking their operations is clearly overmatched. The commission, a creation of the General Assembly, employs only one part-time administrator.
Why should any of this matter to ordinary Hoosiers? Because the array of expensive gifts helps lobbyists secure easy access to legislators -- access most members of the public will never enjoy. The cozy relationships built over dinners, golf trips and Colts games mean legislators view lobbyists more as friends than influence peddlers. And although it's easy for Fortune 500 companies and groups such as the National Rifle Association to shower lawmakers with expensive gifts, it's much harder for small business owners and organizations representing the poor and disabled to compete for legislators' attention.
Posted by Marcia Oddi on November 15, 2009 10:10 AM
Posted to Indiana Government | Legislative Benefits
Law - "Financial Decisions to Make as You Divorce"
The NY Times' Ron Liber had a very useful article in his "Your Money" column this week - it could form the basis of a checklist.
Posted by Marcia Oddi on November 15, 2009 08:12 AM
Posted to General Law Related
Saturday, November 14, 2009
Courts - More on: Kentucky judge rejects mayoral candidate's motion to seal divorce files
Updating this ILB entry from Oct. 28, 2009, Joseph Gerth of the Louisville Courier Journal reported yesterday in a story headlined "King's ex-wife asks judge to reconsider order opening court files" - here are some quotes:
The former wife of Louisville mayoral candidate Jim King has asked a judge to reconsider her order to open their 1981 and 1988 divorce cases, which contain allegations that Jim King abused his wife.More from the story:In the motion for reconsideration, Rebecca King also asked the judge – if the judge rules against her – to delay enforcement of the order unsealing the records for another 10 days. That would give Rebecca King time to appeal, if she wishes.
The Courier-Journal is fighting in court to keep the file open. It has argued that Jim King's past actions require scrutiny because King is running for the city's highest office.
In her decision on Nov. 3, Judge Patty Walker FitzGerald ordered just a few documents sealed, including psychologists' evaluations of Jim and Rebecca King, an affidavit relating to one of the couple's children and some financial information.
FitzGerald agreed to delay enforcement of her order until after Friday, giving lawyers for the Kings time to appeal her ruling to the state Court of Appeals.
Rebecca King's lawyer waited until the last day for appeals and then, instead of appealing the matter, asked FitzGerald to change her mind.
Tim Napier, a lawyer for The Courier-Journal, called it an attempt to delay the release of the records. "It's the same arguments they made before," he said. "They're rehashing their arguments in an effort to delay."
The Kings had originally asked jointly to have the file sealed but, after a Courier-Journal editorial criticized him for being secretive, he announced that he would not appeal whatever FitzGerald ruled.Jim King did not join in Rebecca King's request for FitzGerald to reconsider. * * *
In requesting FitzGerald to reconsider her ruling, Rebecca King's lawyer, Don Cox, argued that FitzGerald's original ruling was wrong.
Specifically, he suggested that the judge didn't conduct a "document by document" review of the file before making her ruling.
FitzGerald clearly noted in her ruling that she had "reviewed those documents specifically identified by the parties" and that state law doesn't allow for them to be sealed.
Cox also argued that FitzGerald's order to destroy certain documents 30 days after her order took affect [ILB - sic] is an acknowledgement that the documents were "not public components of the civil trial" and therefore should not be released at all.
Posted by Marcia Oddi on November 14, 2009 09:02 AM
Posted to Courts in general
Ind. Law - "Boxes of medical files found abandoned in South Bend"
Tom Moor reports in the South Bend Tribune:
SOUTH BEND - An agent with the Indiana attorney general's office removed 21 boxes of medical records from a downtown office building Friday that contain the personal information of hundreds of local people.See also this June 21, 2009 ILB entry on the Misawaka records, and this one from April 3, 2009 re "Goshen lawyer's confidential files found in trash."The boxes, consisting of thousands of sheets of paper, contain patients' Social Security numbers, addresses, phone numbers, diagnoses and prescriptions.
Dave Niesel, who owns The Business Center Inc., which has a suite in the office building at 328 N. Michigan St., noticed the boxes when he moved his business there in January.
Although the records appeared to be locked safely in a storage closet in the basement of the building, it appears the medical practice that was in the building years ago moved out and left them.
“I'm sure it's something the patients would be concerned about,” said Niesel, noting the building had been vacant for about 10 years.
It appears from several of the medical records that a man named Dr. Armand J. Rigaux owned the business, called Family Medicine of Michiana or Health Designs Inc. The last date included in most of the paperwork is 1993. * * *
John Bowlby, 80, and his wife Clara, 81, say they were patients of Rigaux in the late 1980s and maybe early '90s when he had a practice on Angela Boulevard. Clara's name was on a medical record a Tribune reporter found among the documents. After hearing that the documents had been locked away, John Bowlby said it didn't concern him much.
“I'd still like to see them shredded, though,” he said.
The Tribune alerted the state attorney general's office about the records this week - which led to the removal of the records - and the department's ID Theft Unit will investigate, spokesman Bryan Corbin said. Corbin added that the boxes will be taken to the attorney general's evidence room at the Indiana Government Center in Indianapolis for further review.
The ID Theft Unit will conduct an inventory of the records to determine what type of information is included and how many individuals were affected.
Corbin added that it's too early to say what could happen in this case.
“Generally speaking, when unsecured data is discovered, our ID Theft Unit will review the files to determine if it contains any consumers' personal data and if their privacy was compromised,” he said.
Under Indiana codes, owners of databases have certain legal obligations to notify customers of a privacy breach within a reasonable period of time, or face financial penalties.
In similar cases, Corbin said, the office of the attorney general has reached an agreement of voluntary compliance with each physician. Each doctor agreed to notify the affected patients, take various measures to secure patients' and employees' personal data, and pay civil penalties and court costs. One doctor in 2007 paid $750, while another in 2008 paid $1,250.
Corbin said in the South Bend case, the notification requirement and time frame for notification appear to hinge upon discovery of the breach, even if the records were abandoned before the effective date of the statute. It is unclear whether Rigaux would face any penalties. * * *
Meanwhile, this is at least the second time this year in St. Joseph County that records containing people's personal information were found.
At least 80 files of personal loan applications were found in a Dumpster behind Town & Country Shopping Centre in Mishawaka in June.
Included in the files were names, Social Security numbers and even bank account numbers. Corbin said this week this case is ongoing.
He said the files reportedly belonged to a former employee at a South Bend loan bank. When the man's house was foreclosed, the files apparently were thrown in the Dumpster, Corbin said.
Posted by Marcia Oddi on November 14, 2009 08:47 AM
Posted to Indiana Law
Friday, November 13, 2009
Ind. Gov't. - Daniels appoints child services ombudsman
From the press release:
INDIANAPOLIS (November 13, 2009) – Governor Mitch Daniels has named an Indianapolis woman with more than 25 years of child welfare, social work and family counseling experience as the state’s first Department of Child Services Ombudsman.The law regarding the Department of Child Services Ombudsman is found at IC 4-13-19, and took effect July 1, 2009.Susan Hoppe will begin the role on December 14. She is a child welfare professional who has spent her career as a caseworker, manager and counselor on child and family issues such as custody evaluations, child abuse and neglect and family advocacy.
Daniels lauded Hoppe’s long career of commitment to child welfare, saying “Huge improvements and national honors are nice, but we can never do enough to protect our little ones from the selfishness or even brutality of irresponsible parents.”
Most recently, Hoppe has spent the last nine years as a social worker with Marion County Circuit and Superior Courts, providing evaluation services to families involved in contested custody cases. She also has served as the court’s appointee to the Marion County child protection team.
Posted by Marcia Oddi on November 13, 2009 04:18 PM
Posted to Indiana Government
Ind. Decisions - Supreme Court issues one opinion today
In State of Indiana ex rel. Adrian D. Kirtz v. The Delaware Circuit Court No. 5 and the Hon. Thomas A. Cannon, Jr., a 6-page per curiam decision, the Court explains the reasons why it agreed to grant a permanent writ of mandamus and prohibition on Oct. 16th
requiring the Respondents, the Delaware Circuit Court No. 5 and the Honorable Thomas A. Cannon, Jr., the judge thereof, to vacate the order appointing J. A. Cummins as special prosecutor in the criminal case pending below against Kirtz and to appoint a different person to serve as special prosecutor pursuant to Indiana Code Section 33-39-1-6.Here is the Oct. 16, 2009 Permanent Writ of Mandamus and Prohibition, which itself provided:
The Court takes under advisement whether to issue later an order or opinion explaining the reasons for granting this writ. In light of the scheduled trial date approaching, the present order serves as the permanent writ, effective immediately. Motions to reconsider or petitions for rehearing are not allowed. Ind. Original Action Rule 5(C).
Posted by Marcia Oddi on November 13, 2009 03:05 PM
Posted to Ind. Sup.Ct. Decisions
Ind. Decisions - One case granted transfer Nov. 12th
The Clerk's transfer list should be available probably Monday. Meanwhile, the ILB has received notice that transfer was granted yesterday in the following case:
- Efren Radillo Diaz v. State (NFP) (20A05-0903-PC-165)
Posted by Marcia Oddi on November 13, 2009 11:42 AM
Posted to Indiana Transfer Lists
Ind. Decisions - Court of Appeals issues 2 today (and 6 NFP)
For publication opinions today (2):
In Curtis Colvin v. State of Indiana , a 7-page opinion, Judge Najam writes:
Curtis Colvin appeals his conviction for Resisting Law Enforcement, as a Class A misdemeanor, following a bench trial. He presents a single issue for our review, namely, whether the State presented sufficient evidence to support his conviction. We reverse. * * *Brea Rice v. State of Indiana , a 16-page opinion, Judge Robb writes:One of the officers ordered Colvin to take his hands out of his pockets, but Colvin did not comply. Colvin refused to comply with any of the officers' commands, and the officers “physically had to place him on the ground and handcuff him.” * * *
The evidence does not support a reasonable inference that Colvin did more than passively resist the officers. * * * We hold that the evidence is insufficient to support Colvin's resisting law enforcement conviction.
Brea Rice was charged with possession of marijuana, a Class A misdemeanor, and possession of methamphetamine, a Class D felony, after a search conducted in the course of executing an arrest warrant issued for receiving stolen property uncovered the drugs in her purse. Rice filed a motion to suppress, alleging there was no probable cause to support the issuance of the arrest warrant and the drugs, as fruits of an illegal arrest, should be suppressed. The trial court agreed the arrest warrant should not have been issued but found the police conduct was not “sufficiently deliberate [such] that exclusion can meaningfully deter it,” and therefore denied Rice's motion to suppress. Rice sought and received permission to pursue this interlocutory appeal, raising the sole issue of whether the trial court abused its discretion in applying the good faith exception to the exclusionary rule and denying her motion to suppress. Concluding the trial court did abuse its discretion because Indiana's good faith exception does not apply under these circumstances, we reverse.NFP civil opinions today (3):
Rebecca S. McClure v. Anthem, Inc. (NFP) - "Rebecca McClure filed an application for adjustment of claim with the Worker’s Compensation Board of Indiana (the “Board”) against her employer, Anthem, Inc. (“Anthem”). A Single Hearing Judge denied her claim, concluding that McClure had not suffered any injury arising out of and in the course of her employment with Anthem. McClure petitioned the full Board, which affirmed the Single Hearing Judge’s decision. Due to McClure’s blatant disregard of the appellate rules, we do not reach the merits of her appeal. We dismiss."
James L. Lynn v. The Estate of Jon L. Lynn, et al. (NFP) - "James presents a single dispositive issue for our review, namely, whether the trial court erred when it found that a Family Settlement Agreement giving James a right of first refusal to buy certain real estate was unenforceable. We affirm."
NFP criminal opinions today (3):
State of Indiana v. Clay Crick and Jeffrey K. Watts (NFP) - "The State has failed to show that the trial court’s rulings on the motions to suppress were contrary to law. See State v. Washington, 898 N.E.2d 1200, 1203 (Ind. 2008), reh’g denied. Our original opinion is affirmed in its entirety."
D.B. v. State of Indiana (NFP)
William E. Riley v. State of Indiana (NFP)
Posted by Marcia Oddi on November 13, 2009 11:11 AM
Posted to Ind. App.Ct. Decisions
Ind. Gov't. - "State government began laying off employees today in order to cut costs"
"Indiana state workers get layoff notices" is the headline to this just-posted Friday the 13th story by Mary Beth Schneider of the Indianapolis Star.
Posted by Marcia Oddi on November 13, 2009 10:53 AM
Posted to Indiana Government
Ind. Decisions - "The Mezuzah case" is decided en banc by 7th Circuit [Updated]
This is not an Indiana case, but the ILB has had several entries about it in the past, including this one from May 13th which included this quote from a May 13th AP story by Mike Robinson, headed "Arguments before full 7th Circuit in mezuzah case may put Judge Wood and Williams in spotlight":
In the case before the court, the Shoreline Towers Condominium Association repeatedly removed a mezuzah from the front door of Chicago condo owner Lynne Bloch. The association said it violated a rule against placing any objects, religious or otherwise, on doors or in common halls.Today the 7th Circuit has issued an en banc decision in Bloch v. Shoreline Towers (ND Ill), written by Judge Tinder - some quotes:Bloch, who helped write the rule, sued, saying she was a victim of religious discrimination. U.S. District Judge George W. Lindberg threw out the case and the appeals court affirmed his decision 2-1.
Chief Judge Frank Easterbrook, writing for himself and Senior Judge William Bauer, said the rule was "neutral" and "potentially affects every owner" without regard to religion and thus was not discriminatory.
"It bans photos of family vacations, political placards, for-sale notices and Chicago Bears pennants," he wrote.
[Judge Diane P.] Wood dissented, saying it could been seen as a violation of federal housing law because observant Jews would be unable to live in a condo with no mezuzah.
"Thus in a real sense, Hallway Rule 1 makes condominium units at Shoreline Towers functionally unavailable to observant Jews like the Blochs and, if it could be enforced, the rule would effect their constructive eviction," Wood wrote.
In this case, we consider whether condominium owners can sue their condo association under the Fair Housing Act (FHA), 42 U.S.C. §§ 3601 et seq., for alleged religious and racial discrimination that took place after the owners bought their condo unit. We highlight the word “after” because based on a prior opinion from this court, Halprin v. Prairie Single Family Homes of Dearborn Park Ass’n, 388 F.3d 327 (7th Cir. 2004), the district court concluded that condo owners couldn’t rely on the FHA to safeguard their rights from any post-acquisition discrimination. We took this case to the full court to consider this important question. Upon careful review of the FHA and our prior opinion in Halprin, we conclude that in some circumstances homeowners have an FHA cause of action for discrimination that occurred after they moved in. On the facts of this case, we conclude that Lynne, Helen, and Nathan Bloch have offered enough evidence to allow a trier of fact to decide whether they suffered intentional discrimination at the hands of the Shoreline Towers Condo Association and its president Edward Frischholz. We therefore reverse the summary judgment granted against the Blochs.EASTERBROOK, Chief Judge, and BAUER, POSNER, KANNE, WOOD, EVANS, SYKES, and TINDER, Circuit Judges, participated in the decision. "Circuit Judges Flaum, Rovner, and Williams took no part in the consideration of this case."
[Updated at 2:15 PM] "Court revives Chicago ‘mezuzah’ case: Ruling vindicates Obama favorite Judge Diane Wood" is the heading of this newly posted story by Abdon M. Pallasch of the Chicago Sun-Times. Some quotes:
The ruling vindicates federal appellate Judge Diane Wood, a former colleague of President Obama who has been on his shortlist for the U.S. Supreme Court.Though criticized by conservatives as “hostile to religious rights,” it was Wood’s impassioned dissent in this case that the appellate court relied on to revive the Bloch family’s claim of religious discrimination.
Two of Wood’s more conservative colleagues on the 7th Circuit Court of Appeals — Frank Easterbrook and William Bauer — had earlier voted 2-1, prevailing over Wood on a three-judge panel, to dismiss the claim, arguing, among other reasons, that the federal Fair Housing Act, under which the lawsuit was brought, cannot be used to allege discrimination after a condominium is sold.
Today’s ruling by eight of the court’s judges reversed that finding and said the FHA can apply to alleged discrimination after a sale.
The court did not rule that The Shoreline Towers Condominium Association and its president, Edward Frischholz discriminated against the Bloch family, but the court said the Blochs offered enough evidence that a jury ought to be able to hear the case. * * *
“So the Blochs must proceed on a showing of intentional discrimination,” Tinder wrote. “Although the Blochs’ case is no slam dunk, we think the record contains sufficient evidence, with reasonable inferences drawn in the Blochs’ favor, that there are genuine issues for trial on intentional discrimination.”
Posted by Marcia Oddi on November 13, 2009 10:16 AM
Posted to Ind. (7th Cir.) Decisions
Ind. Decisions - More on "Supreme Court Hears $125,000 Gambling Debt Case: Woman Claims Casino Knew About Addiction"
Updating this ILB entry from yesterday, Nov. 12, the Louisville Courier Journal today has a 10-picture photo gallery of yesterday's oral argument before the Indiana Supreme Court.
Posted by Marcia Oddi on November 13, 2009 09:40 AM
Posted to Ind. Sup.Ct. Decisions
Ind. Law - "Barnes & Thornburg enters top 100 on list of largest law firms"
So reports Scott Olson in this Indianapolis Business Journal story today that begins:
A spate of office openings and an acquisition have helped catapult Barnes & Thornburg LLP into the upper echelon of the nation’s largest law firms, at a time when the slumbering economy has forced most other big firms to cut staff.The Indianapolis-based law firm ranked 87th in The National Law Journal’s most recent annual listing of the nation’s 250 largest firms, marking the first time it has cracked the top 100.
Barnes & Thornburg moved up from its 109th-place ranking in 2008, by increasing its lawyer numbers 8 percent, to 483, in offices in seven states and Washington, D.C. The firm has 233 lawyers in Indianapolis and is the second largest in the city, according to the most recent IBJ statistics.
Posted by Marcia Oddi on November 13, 2009 09:34 AM
Posted to Indiana Law
Ind. Decisions - "Indiana appeals court upholds axing of Obama suit"
The Court of Appeals decision yesterday in the case of Steve Ankeny and Bill Kruse v. Governor of the State of Indiana (ILB summary here) is the subject of a story in the Indianapolis Star, reported by Jon Murray. Some quotes:
The Indiana Court of Appeals today affirmed a Marion County judge's dismissal of a lawsuit by two Hoosiers challenging President Barack Obama's eligibility to hold office.One of dozens of similar lawsuits across the country that so far have been unsuccessful, the Indiana case disputed Hawaii-born Obama's status as a "natural born citizen." Steve Ankeny, New Castle, and Bill Kruse, Roselawn, represented themselves in the suit, which Judge David Dreyer dismissed in March. * * *
A three-judge Court of Appeals panel ruled in today's 19-page decision that the plaintiffs failed to state a claim upon which relief could be granted.
But the decision, authored by Judge Elaine B. Brown, also weighed in on the debate over the citizenship status requirement: "We conclude that persons born within the borders of the United States are 'natural born Citizens' for (constitutional) purposes, regardless of the citizenship of their parents."
Posted by Marcia Oddi on November 13, 2009 09:30 AM
Posted to Ind. App.Ct. Decisions
Ind. Courts - "New federal courthouse dedicated in downtown Terre Haute"
Howard Greninger reports today in the Terre Haute Tribune-Star:
A new federal courthouse was officially dedicated Thursday amid federal judges, Terre Haute attorneys and city officials.The new courthouse at 921 Ohio St. rests on a 1.9-acre site at 91/2 and Ohio streets. The one-story brick building with stone facade has 14,310 square feet, according to a fact sheet at the ceremony from the U.S. General Services Administration.
The courthouse was built by Thompson Thrift Development Corp., which will pay property taxes. Thompson Thrift is leasing the facility to the federal government under a 20-year lease. The annual rent is $570,598, according to the GSA fact sheet.
U.S. Bankruptcy Court Judge Frank J. Otte said the courthouse “is a success story, the result of the work of very many people. It was brought about, things like this just don’t happen, but it was brought about because there were people in the community” who worked to keep the courts, he said.
Otte said the former courthouse, at Seventh and Cherry streets, which will become part of Indiana State University, was made in the Art Deco style of the 1930s, while the new courthouse has a “Williamsburg look.” * * *
Otte and U.S. District Judge Larry J. McKinney each thanked Sen. Evan Bayh, D-Ind., for working to secure the new courthouse in Terre Haute. McKinney, who served as chief judge of the Southern District of Indiana from 2001 to 2007, was part of a group that worked closely on the project.
“The very fact of this building’s existence is a slap in the face of cynics and naysayers and nabobs of negativism, if you don’t mind me quoting Spiro Agnew,” McKinney said, saying approval had to be made from numerous federal agencies.
“Our goal was to have a quality facility that is not an insult to the taxpayer and one that is within the budget that we had. There were serious perimeters. This building had to be within the same cost perimeters to the court as the old building,” he said.
“The process of getting this building here is not unlike pulling Excalibur out of the stone. Only those who were hard-working people of goodwill and had some vision of the future could pull that sword out of the stone. I am telling you there were a lot of them” who made the courthouse happen, McKinney said.
Posted by Marcia Oddi on November 13, 2009 09:20 AM
Posted to Indiana Courts
Ind. Decisions - "Driving infraction sentences slashed for Elkhart man"
The COA Nov. 10th NFP decision in the case of Ray Bean, Jr. v. State of Indiana is the subject of a story today in the Elkhart Truth. Justin Leighty reports:
ELKHART -- The Indiana Court of Appeals upheld two driving convictions against an Elkhart man this week, though they cut his sentence drastically because he made significant efforts to comply with the law.The convictions against Ray Bean, Jr., 50, formerly of 2410 Wood St., came from two traffic stops in Elkhart in 2007.
When an Elkhart Police officer stopped Bean on Harrison Street that June, Bean told the officer the Yamaha Zuma was legal for him to drive and qualified as a "motorized bicycle," which habitual traffic violators can drive under the law.
The officer tried to explain that the scooter's engine was too big to qualify. That officer didn't arrest Bean at the time, but got prosecutors to file a charge.
Two months later another officer stopped Bean, again on the scooter, and arrested him on the warrant and on a second charge of driving with forfeited driving privileges.
Elkhart Superior Judge George Biddlecome convicted him of both charges and sentenced him to nine years in prison.
However, the appeals court pointed out that when Bean bought the scooter, the salesman told him it would be legal and Bean also double-checked with the Bureau of Motor Vehicles.
The Zuma's cylinder size, 49 cubic centimeters, would be legal, but the horsepower was 4.9, far higher than the 2-horsepower maximum specified under state law.
"We are convinced from the record that Bean was attempting to comply with the law by purchasing the Zuma," the three-judge panel ruled.
"Altogether, a total of nine years in the Indiana Department of Correction is inappropriate for Bean's offenses. He was operating a vehicle that, at least initially, he had reason to believe was legal for him to operate," they wrote. They ordered Biddlecome to reduce the sentence to four years in prison, two on each charge.
Posted by Marcia Oddi on November 13, 2009 09:12 AM
Posted to Ind. App.Ct. Decisions
Thursday, November 12, 2009
Courts - "Conservatives Oppose Judicial Nominee"
Kate Phillips writes this evening in "The Caucus," a NY Times blog, at the start of a lengthy analysis piece:
Conservative groups have been rallying their troops to urge senators to oppose the nomination of Judge David F. Hamilton of Indiana to the Seventh Circuit Court of Appeals.As recently as Thursday morning, Senator Jeff Sessions, the ranking Republican on the Judiciary Committee, labeled Judge Hamilton as too liberal during a speech before the Federalist Society. Advocates and supporters of Judge Hamilton have also jumped into the fray.
The moves afoot followed a decision by the Senate Majority Leader, Harry Reid, to file a procedural motion on Tuesday night that will likely force a vote early next week that will require the support of 60 members to push the nomination forward.
Since then, conservative bloggers like Erick Erickson at RedState and anti-abortion and religious conservatives have ramped up calls for their supporters to raise objections to Judge Hamilton, citing his rulings in federal court in Indiana on abortion and prayer.
Posted by Marcia Oddi on November 12, 2009 07:27 PM
Posted to Courts in general
