Monday, January 16, 2017

Ind. Gov't. - Controversy in Tippecanoe Co. re ink vs electronic fingerprints

WLFI 18's Kayla Sullivan reported Friday in a story that begins:

TIPPECANOE CO., Ind. (WLFI) — Indiana State Police said it has always accepted ink fingerprints and wouldn’t advise otherwise if an electronic fingerprint machine goes down. This response comes after the Tippecanoe County Sheriff’s Office told News 18 someone with ISP said it would not accept ink fingerprints as an alternative to electronic prints.

As News 18 was first to report on Wednesday, during the summer of 2016 an electronic fingerprinting machine went down for about a month and as a result about 500 inmates were not fingerprinted. But as we learned, the two agencies are not on the same page when it comes to procedures.

Now, state police and the sheriff’s office talk about what’s next.

“We do not have the manpower as a state police agency to hand hold and babysit grown adults that are charged with the responsibility of running their agencies,” said David Bursten, state police public information officer.

Indiana State Police are not taking the fall for the Tippecanoe County Sheriff’s Office’s failure to fingerprint 500 inmates last summer, nor does it want to hold the agency accountable.

“The trouble they get is with their local officials, with county prosecutors, with the voters who put them in office,” Bursten said.

But the sheriff’s office was quick to point fingers at state police Wednesday, when we asked why jailers didn’t use ink to fingerprint inmates while the electronic system was glitching for about a month.

“Everything is electronic now. Nobody wants to deal with paper and paper prints. They told us at that time, we probably won’t accept these,” Chief Deputy Steve Hartman told News 18 on Wednesday.

Posted by Marcia Oddi on January 16, 2017 10:07 AM
Posted to Indiana Government

Environment - Still more on "Citizens File Legal Action To Preserve Crown Hill North Woods"

Updating this ILB post from Friday, Michelle Johnson had this story this weekend for WFYI:

INDIANAPOLIS - A federal judge has denied a request by an environmental group to stop a U.S. Department of Veterans’ Affairs project at Crown Hill Cemetery.

In her ruling, Chief Judge Jane Magnus-Stinson of the U.S. District Court of Southern Indiana wrote that the Indiana Forest Alliance’s overstated the impact of the project on a 15-acre parcel in the cemetery’s North Woods.

The group argued that the VA’s environmental impact assessment was flawed, and had asked that the project not go forward until a court could review it. Magnus-Stinson rejected that argument.

Jeff Stant, the executive director of the Forest Alliance, said his group will appeal the ruling to the 7th Circuit U.S. District Court in Chicago.

“We do not believe that the VA complied with the spirit or the letter of the National Environmental Policy Act (NEPA),” Stant said in a statement.

Unless the circuit court intervenes, Magnus-Stinson’s ruling appears to clear the way for the VA to develop a columbarium, which will house the cremated remains of military veterans. The VA bought the 15-acre parcel from Crown Hill Cemetery, Inc. in 2015.

The North Woods at Crown Hill is one of the few remaining pre-settlement, old-growth areas in Indiana, according to a 2006 assessment by an ecologist with the Indiana Division of Nature Preserves.

The Indiana Forest Alliance argued that given the site’s biological and cultural value, the VA should look for alternative site for the columbarium.

There will be a public candlelight vigil for the forest Monday, January 16 at the Crown Hill North Woods from 4 to 5 p.m.

From a WTHR story:
The VA has not responded to the Laura Hare Charitable Trust’s offer made on November 22 to purchase the land for a nature preserve, enabling the VA to find an alternate and more suitable site. “These forests are irreplaceable, and as we continue to lose the last remnants, we are all impoverished,” said Lenore Tedesco, a spokesperson for the Hare Trust. “It’s unfortunate that the VA has chosen this destructive course when they have a viable partner to save this forest and also achieve their goals.”

Since Sept. 1, hundreds of citizens have appealed to Indiana’s congressional delegation and VA Secretary General Robert McDonald to reconsider the project.

Posted by Marcia Oddi on January 16, 2017 09:57 AM
Posted to Environment

Ind. Courts - "Hamilton County court expansion could shrink"

John Tuohy reports in the Indianapolis Star today:

Hamilton County commissioners will soon see early designs for a $22 million expansion of the government center, but one official said he will recommend less courtroom space than originally planned.

“Initially it looked like we needed four courtrooms, but now it seems one or two is more realistic,” said court administrator Orval Schierholz. * * *

Schierholz said judges in the circuit court and six superior courts have large backlogs of cases, but the way the state measures those backlogs is about to change. When the Indiana Office of State Court Services makes the modifications to the “weighted caseload measure” system, it will show that Hamilton County is in need of one or two more courtrooms, rather than four.

“What's changing are the rules, not the number of cases," Schierholz said. * * *

[County Commission President Steve] Dillinger said officials want to avoid the type of miscalculation made when a new juvenile detention center was built in 2007.

The $28.5 million facility was to hold what law enforcement officials expected would be a growing juvenile inmate population. But subsequent changes in state sentencing laws put more juveniles on probation and home detention rather than in jail. The facility, designed to hold 76 youth offenders, usually houses fewer than 10.

“The legislature is constantly tinkering with the laws, and sometimes it is hard to predict what they will do in the future,” Dillinger said.

Posted by Marcia Oddi on January 16, 2017 09:48 AM
Posted to Indiana Courts

Ind. Law - NRA: "We are happy to report that a number of pro-gun bills have been filed"

Here is the list, published at NRA-IRA:

Senate Bill 14, introduced by state Senator James Tomes and state Senator Mark Messmer (R-48), would allow professional staff of the Indiana General Assembly, who are licensed to carry a handgun, to do so at the capitol complex.

House Bill 1071
, introduced by state Representative Sean Eberhart (R-57), would allow the petitioner of a civil protective order to temporarily carry a handgun without a permit. This would ensure that victims of domestic violence are not left defenseless at their most vulnerable time while waiting for their carry permit to be approved.

House Bill 1095, introduced by state Representative Woody Burton (R-58), would reform the definition of “armor piercing ammunition” to mirror the federal law. By doing so, it would update the current Indiana law which erroneously prohibits plastic coated ammunition. Coating a bullet in plastic does not make it armor piercing, but it does reduce fouling and wear on a firearm and reduces lead fumes without the higher cost of copper plated bullets. This would simply allow target shooters in Indiana to take advantage of the same advances in polymer technology that many others around the country enjoy when shooting recreationally.

House Bill 1159, introduced by state Representative Jim Lucas (R-69), would eliminate the requirement to obtain a permit in order to lawfully carry. This bill recognizes a law-abiding adult’s unconditional Right to Keep and Bear Arms for self-defense in the manner he or she chooses. This bill will make the current permitting system optional to allow citizens to obtain permits to take advantage of reciprocity agreements with other states.

House Bill 1161, introduced by state Representative Jim Lucas, would create a state income tax credit for expenses incurred when receiving firearms instruction or for purchasing firearm storage devices. This would reduce the financial burden for low income citizens who wish to responsibly exercise their Second Amendment rights.

House Bill 1258, introduced by state Representative Jim Lucas, would allow those who can legally carry their firearms in Indiana to carry on a college campus. There is no reason that an arbitrary border should prevent a law-abiding person from being able to defend themselves once they cross that border. So called “gun free zones” do little to protect people as criminals and those with bad intent simply ignore them, knowing that they will not encounter opposition from armed citizens.

NRA-ILA is the Institute for Legislative Action, the lobbying arm of the National Rifle Association.

Posted by Marcia Oddi on January 16, 2017 09:36 AM
Posted to Indiana Law

Ind. Decisions - Upcoming oral arguments this week and next

This week's oral arguments before the Supreme Court (week of 1/16/17):

Thursday, January 19

  • 9:00 AM - Royce Love v. State of Indiana (71S03-1612-CR-00641) After a jury trial, Love was convicted in St. Joseph Superior Court of resisting law enforcement and mistreatment of a law enforcement animal. On appeal, a majority of the Court of Appeals reversed, concluding video evidence indisputably contradicted police officer testimony about the events underlying the convictions. Love v. State, 61 N.E.3d 290 (Ind. Ct. App. 2016), vacated. The Supreme Court has granted a petition to transfer the case and has assumed jurisdiction over the appeal.

    ILB: This was a 2-1, Sept. 8, 2016 COA opinion (ILB summary here, 8th case). The ILB posted several news stories at the time, under the heading "Appeals court says video 'indisputably contradicts' South Bend police testimony."

  • 9:45 AM - Fresenius USA Marketing v. Indiana Department of State Revenue (49T10-1008-TA-00045)The Indiana State Department of Revenue denied Fresenius’s claim for a refund of sales tax paid on medical supplies it sold to dialysis clinics, finding that the relevant exemption applied only to items sold directly to patients. The Tax Court disagreed, and granted summary judgment to Fresenius. Fresenius USA Marketing, Inc. v. Indiana Dept. of State Revenue, 56 N.E.3d 734 (Ind. Tax Court, July 15, 2016), trans. pending. The Indiana Department of State Revenue has petitioned the Supreme Court to accept jurisdiction over the appeal.

    ILB: This was this was a July 18, 2016 Tax Court opinion, which "present[ed] one dispositive issue: whether the Department is bound by its published ruling interpreting the exemption provided by Indiana Code § 6-2.5-5-18(a)." The ruling concluded:

    Even though the 1998 Ruling was not issued to Fresenius, it was entitled to rely on it because it demonstrated factual similarity. Because it did not rebut Fresenius’s showing of similarity, the Department is bound by its interpretation in its 1998 Ruling. Consequently, while the Department is not entitled to summary judgment on this basis, Fresenius is.
Next week's oral arguments before the Supreme Court (week of 1/23/17):

  • No oral arguments currently scheduled.

Webcasts of Supreme Court oral arguments are available here.


This week's oral arguments before the Court of Appeals (week of 1/16/17):

Thursday, January 16
  • 10:00 AM - ABC Radiology, P.C., et al. v. Cathy Gearhart (Case# not provided on COA calendar) Cathy Gearhart (Plaintiff) filed a complaint in Marion Superior Court against various defendants following the death of her husband, Kent Gearhart, from renal cancer. The defendants to Counts I and II (Defendants) jointly filed a motion requesting that the trial court sever Counts I and II from Count III and transfer venue of Counts I and II to Vanderburgh County. Plaintiffs responded that Marion County was a county of preferred venue because a necessary defendant to the action – the Indiana Patients Compensation Fund – is a governmental organization with its principal office located there. Plaintiffs argued also that all three counts were properly joined because they arise out of the same transaction or occurrence and have common questions of law and fact. Following a hearing, the trial court denied the motion. Defendants appeal, arguing that Plaintiff’s joinder of the underlying negligence actions with the declaratory judgment action was improper and deprived Defendants of their right to trial in a preferred venue county. The Scheduled Panel Members are: Judges Riley, Crone, and Altice. [Where: Court of Appeals Courtroom (WEBCAST)]
Next week's oral arguments before the Court of Appeals (week of 1/23/17):

Monday, January 23
  • 1:30 PM - CS v. Aegis Women's Health (53A01-1607-CT-01657) After their daughter was born with a variety of health problems, a mother and father filed a medical malpractice claim against several healthcare providers with the Indiana Department of Insurance. Pursuant to the Indiana Medical Malpractice Act, a panel of doctors reviewed the matter and concluded that the healthcare providers had not breached the applicable standard of care. Nonetheless, the parents filed suit against the healthcare providers. The providers moved for summary judgment, and the parents responded, in part, with evidence that they had not presented to the review panel. The trial court granted summary judgment in favor of the providers on the ground that the parents had asserted a different breach in court than they had before the review panel. Issues on appeal include (1) whether medical malpractice plaintiffs can allege breaches in court that they did not first present to the medical review panel and, if so, (2) whether they can rely on evidence in court that was not first presented to the medical review panel. The Scheduled Panel Members are: Chief Judge Vaidik, Judges Bradford and Brown. [Where: Court of Appeals Courtroom (WEBCAST)]

  • 2:30 PM - Pastor Llobet, MD v. Juan Guitierrez (45A04-1605-CT-1133) This oral argument will be held shortly after the argument in C.S. v. Aegis Women’s Healthcare, No. 53A01-1607-CT-1657. Both cases raise the issue of whether a medical malpractice plaintiff can pursue in court claims that were not specifically presented during earlier medical review panel proceedings. The Scheduled Panel Members are: Chief Judge Vaidik, Judges Bradford and Brown. [Where: Court of Appeals Courtroom (WEBCAST)]
Tuesday, January 24
  • 11:00 AM - Otis Sams, Jr. v. State of Indiana (Case# not provided on COA calendar) Before his jury trial in Putnam Circuit Court, Sams moved to suppress the fruits of the inventory search of his truck. The trial court denied Sams’s motion. Sams sought certification for interlocutory appeal, which the trial court also denied. The evidence from the truck was admitted over Sams’s objection at trial. Sams appeals the trial court’s decision to admit the evidence from the truck, arguing that the officers’ inventory search was not sufficiently regulated by standard procedures and thereby ran afoul of the Fourth Amendment to the federal constitution. Sams raises no separate argument under our state constitution. The State responds that the inventory search was properly conducted under the established procedures of the Greencastle Police Department and that the trial court did not abuse its discretion in deciding to admit the fruits of that search. The Scheduled Panel Members are: Judges Kirsch, Robb, and Mathias. [Where: Butler University, Indianapolis, IN]

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

Past Court of Appeals oral arguments which have been webcast are accessible here.


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

Posted by Marcia Oddi on January 16, 2017 09:25 AM
Posted to Upcoming Oral Arguments

Friday, January 13, 2017

Environment - More on "Citizens File Legal Action To Preserve Crown Hill North Woods"

Updating this ILB post from Dec. 8, 2016 (complete with photos of some of the magnificant endangered trees), federal Judge Magnus-Stinson has today issued a 25-page order denying the Plaintiffs' motion for a preliminary injunction. From the order:

For the reasons that follow, the Court denies IFA’s [Indiana Forest Alliance's] request for a preliminary injunction. IFA overlooks the limited scope of this Court’s administrative review, overstates the impact of the Project, and minimizes or even disregards the extensive process the Defendants utilized to solicit feedback and determine the environmental impact of the Project on the Property. Additionally, despite bearing the burden to support its injunction request, IFA assumes the public interest element of the analysis in its favor—without proof—and completely ignores that Crown Hill National Cemetery is currently at capacity and cannot accept additional Veterans for burial. IFA also ignores that Defendants reviewed the environmental impact of the Project after soliciting feedback pursuant to NEPA and made the decision to move forward with the Project after issuing a comprehensive analysis and making the report available to the public in various ways. IFA improperly asks this Court to second-guess that decision, which it cannot do within the context of administrative review. Because IFA has not met its burden to prove that a preliminary injunction is appropriate, its request must be denied. * * *

The Seventh Circuit has emphasized that “a preliminary injunction is an exercise of a very far-reaching power, never to be indulged in except in a case clearly demanding it.” Girl Scouts, 549 F.3d at 1085. IFA has not met its burden to show that this is such a case. For the reasons detailed herein, the Court DENIES the Motion for Preliminary Injunction. [Filing No. 17.] This matter will proceed with summary judgment briefing, although the Court asks the assigned Magistrate Judge to hold a conference with the parties to determine if the parties can reach an agreed resolution.

Posted by Marcia Oddi on January 13, 2017 05:00 PM
Posted to Ind Fed D.Ct. Decisions

Ind. Decisions - Supreme Court issued disciplinary opinion re Keith Henderson

Updating a long list of earlier ILB posts re Floyd County Prosecutor Keith Henderson, including this one from Oct. 6, 2016, headed "Floyd County prosecutor Keith Henderson should be significantly disciplined, not simply reprimanded, Disciplinary Commission recommends," the Supreme Court has issued a 4-0 opinion today, imposing a public reprimand. Chief Justice Rush concludes:

We decline to disturb the hearing officer’s decision to allow the Commission to amend Count 1 in advance of the final hearing. Upon careful review of the materials before us, we find sufficient support for the hearing officer’s findings and conclusions with respect to each of the charged rule violations. Accordingly, we find Respondent violated Professional Conduct Rules 1.7(a)(2), 1.8(d), and 8.4(d) with respect to Count 1, and we find in favor of Respondent on Count 2.

Discipline: The hearing officer recommended that Respondent receive a public reprimand. The Commission argues he should be suspended. The violation is serious and adversely affected the administration of justice in this case. However, noting Respondent’s misconduct occurred in connection with a single, unusual case and is an aberration from what otherwise has been a long and distinguished career as a public servant, we conclude a suspension is not warranted in this case. Thus, for Respondent’s professional misconduct, the Court imposes a public reprimand.

The costs of this proceeding are assessed against Respondent. The hearing officer appointed in this case is discharged.

Posted by Marcia Oddi on January 13, 2017 04:48 PM
Posted to Ind. Sup.Ct. Decisions

Ind. Decisions - More on "Missed Deadline Could Terminate Appeal of Gary Triple Murderer"

Updating this ILB post from earlier today, Eric Berman of WIBC has just reported:

A Gary triple murderer will be allowed to appeal his death sentence, despite missing a deadline last year.

Just one day after hearing arguments, a 4-1 Indiana Supreme Court has granted Kevin Isom's attorneys permission to go ahead with his appeal. Isom had refused to sign one of the necessary papers because he was dissatisfied with his state public defenders. His attorneys say he's declined to even meet with them. * * *

The Court issued a terse two-paragraph order reopening the appeal, and ordering the two sides to submit a schedule within a month for a hearing and final ruling. Justice Geoffrey Slaughter dissented.

ILB: Here is the order.

Posted by Marcia Oddi on January 13, 2017 03:30 PM
Posted to Ind. Sup.Ct. Decisions

Ind. Decisions - Court of Appeals issues 3 opinion(s) today (and 15 NFP memorandum decision(s))

For publication opinions today (3):

In Samuel W. Koonce v. Kim M. Finney , a 22-page opinion, Judge May writes:

Samuel W. Koonce (“Husband”) appeals an order denying his Verified Motion for Relief from Judgment Pursuant to Trial Rule 60(B)(6) and his Verified Motion to Clarify Dissolution Decree. We affirm. * * *

Because the Dissolution Court’s Divorce Decree was not void, Husband is not entitled to relief from the judgment under Rule 60(B)(6). The Civil Court did not abuse its discretion when it denied Husband’s motion to clarify. We accordingly affirm.

In Rodney Tyms-Bey v. State of Indiana, a 2-1, 26-page opinion, Judge Baker writes:
Rodney Tyms-Bey brings this interlocutory appeal of the trial court’s order granting the State’s motion to strike his notice of defense under Indiana’s Religious Freedom Restoration Act (RFRA). Our legislature has carved out a statutory exception to RFRA protections when the government’s imposition of a burden furthers a compelling interest and is the least restrictive means of furthering that interest. We find as a matter of law that the State’s compelling interest in a uniform and mandatory taxation system falls into the statutory exception such that RFRA affords no relief to Tyms-Bey. Therefore, we affirm and remand for further proceedings. * * *

We adopt the analysis of the Lee Court and hold as a matter of law that, in the context of Indiana’s RFRA, there is a compelling governmental interest in collecting income tax revenue. Moreover, we hold as a matter of law that the least restrictive means of furthering that compelling interest is uniform and mandatory participation in the income tax system. There are no facts that TymsBey could proffer with respect to his exercise of religion that would not be overcome by the State’s compelling interest and the means used by the State in furthering that interest. In other words, as a matter of law, Indiana’s RFRA offers no protection for the allegedly criminal nonpayment of income taxes by TymsBey, and the trial court did not err by denying his request to assert the defense.

The judgment of the trial court is affirmed and remanded for further proceedings.

Vaidik, C.J., concurs.

Najam, J., dissents with a separate opinion. [that begins, on p. 10 of 26] I respectfully dissent. Tyms-Bey’s alleged RFRA defense may ultimately not succeed, but he is entitled to his day in court. The majority’s holding that, in effect, Tyms-Bey has not stated a claim under RFRA and that he is not even entitled to present evidence in support of his alleged defense is too quick to dispose of Tyms-Bey’s claim and denies him the particularized adjudication that is expressly afforded to him by Indiana’s RFRA. Moreover, in enacting Indiana’s RFRA, our legislature explicitly reserved to itself, and withheld from our judiciary, the right to declare categorical exemptions from RFRA’s application. The majority’s holding disregards that command and categorically removes tax-based actions from RFRA’s application. The majority’s analysis further misunderstands the least restrictive means test under RFRA and denies Tyms-Bey his right under Article 1, Section 19 of the Indiana Constitution. And the majority’s selective use of federal authority fails to consider federal cases in which religious exemptions from facially neutral tax laws have been permitted, and, in any event, the authority relied on by the majority is readily distinguishable. * * *

Tyms-Bey is entitled to his day in court and to the same due process as any other criminal defendant, including his right to present his affirmative defense to a jury. Otherwise, RFRA is for naught and offers no more protection to the exercise of religion than does the First Amendment. Accordingly, I would reverse the trial court’s judgment and remand for further proceedings that comply with the unmistakable commands of RFRA, with Article 1, Section 19, and with the same criminal trial procedure we follow when, as here, the defendant asserts an affirmative defense.

In K.G. v. State of Indiana , a 6-page opinion, Judge Altice writes:

K.G. appeals from his adjudication as a delinquent for committing an act that would constitute Class A misdemeanor theft if committed by an adult. Relying upon Ind. Code § 31-37-11-2(b), K.G. argues that he was entitled to discharge because the fact-finding hearing was not commenced within sixty days, excluding Saturdays, Sundays and legal holidays, of the petition being filed. * * *

Although Section 2 uses “must” regarding the time limits for holding the hearing, we conclude that the term is intended to be directory rather than mandatory in this context. Cf. Parmeter v. Cass Cty. Dep’t of Child Servs., 878 N.E.2d 444, 448 (Ind. Ct. App. 2007) (regarding the required timing of a dispositional hearing in a CHINS case, the court found that the use of the term “shall” in the applicable statutes was directory rather than mandatory). Accordingly, we decline the invitation to read a discharge remedy into Section 2(b) that the legislature did not mandate, especially where the legislature specified precise remedies in other parts of the chapter. Judgment affirmed.

NFP civil decisions today (4):

In the Matter of D.T.T., A Child Alleged to be in Need of Services, M.T. v. Indiana Department of Child Services (mem. dec.)

In the Termination of the Parent-Child Relationship of: B.L.D.H. (Minor Child), and D.D. (Mother) & B.H. (Father) v. The Indiana Department of Child Services (mem. dec.)

Rachea Eytcheson v. Jason Eytcheson (mem. dec.)

Brian S. Moore v. Del Anderson (mem. dec.)

NFP criminal decisions today (11):

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

Ricky Snelling v. State of Indiana (mem. dec.)

Samuel Pinkston v. State of Indiana (mem. dec.)

Craig Nesbitt v. State of Indiana (mem. dec.)

Edward M. Tate, Jr. v. State of Indiana (mem. dec.)

Lavon Washington v. State of Indiana (mem. dec.)

Nancy L. Robinson v. James Robinson (mem. dec.)

Samuel L. Wait v. State of Indiana (mem. dec.)

Dwana Prince v. State of Indiana (mem. dec.)

Kazie Sekou Cole v. State of Indiana (mem. dec.)

Zachary Asher v. State of Indiana (mem. dec.)

Posted by Marcia Oddi on January 13, 2017 12:21 PM
Posted to Ind. App.Ct. Decisions

Ind. Gov't. - More on "Boone County donates $10,000 to fund amicus brief in pivotal tax court appeal"

Updating this Jan. 6th ILB post, Rod Rose follows up last week's "big box/dark box tax" appeal story in The Lebanon Reporter with another, dated Jan. 12 and headed "Chief justice sets filing deadline for amicus briefs in tax bill case." Some quotes:

On Friday, Chief Justice Loretta H. Rush granted the Indiana Association of Cities and Towns — now known as Accelerate Indiana Municipalities — and IMLA permission to file an amicus brief by no later than Jan. 24. She denied an objection filed by Paul Jones Law, LLC, on behalf of Kohl’s Indiana LP, which claimed “there is no good cause” to grant IACT and IMLA’s request to file “because being unaware of the proceedings does not demonstrate good cause,” and that “all parties have completed the original briefing schedule and the filing of additional briefs places an undue burden” on Kohl’s.

Rush said Kohl’s must respond to the IACT/IMLA brief 20 days after it is filed.

Other amicus briefs have been filed by the Indiana Legal Foundation, Inc., and the Association of Indiana Counties. The ILF opposes the supreme court hearing the tax court appeal, claiming acceptance “would be a dangerous affront to stability in the law with a negative impact on Indiana businesses.”

At issue is the taxable value of an 88,242-square-foot Kohl’s at the Boulevard Crossing shopping center in Kokomo. The Howard County Assessor put those tax values at $5.984 million, $5.685 million and $5.906 million in 2010, 2011 and 2012 respectively. Kohl’s unsuccessfully appealed to the Howard County Property Tax Assessment Board of Appeals, then successfully appealed to the Indiana Board of Tax Review. Howard County took that decision to the Indiana Tax Court, where Tax Court Judge Martha Blood Wentworth in September ruled in favor of the retailer. * * *

Tuesday, Boone County Commissioner Jeff Wolfe told the county council that he has verbal agreements from other counties to contribute to the IACT/IMLA brief’s costs. Towns and cities are likely to be willing to contribute as well because of the potential devastating impact on their budgets, should Kohl’s argument be upheld and distribution and manufacturing companies seek similar relief from tax bills.

The story also reports:
Howard County asked the Indiana Court of Appeals to overrule the tax court. The appellate court instead upheld the tax court, prompting Howard County to seek an Indiana Supreme Court ruling.
The ILB believes the above is incorrect, in that appeals from Tax Court decisions would go directly to the Supreme Court.

Here is the docket
in Howard County Assessor v. Kohl's Indiana LP. Here is the ILB summary of the Sept. 7, 2016 Tax Court opinion.

Here is the 43-page Howard County petition for review, filed with the Supreme Court Nov. 7, 2016.

Here is the 27-page amicus brief of the Indiana County Assessors Ass'n., filed Nov. 23, 2016.

Here is the 41-page Kohl's brief in response, filed Dec. 14, 2016.

Here is the 22-page amicus brief of the Indiana Legal Foundation, filed Dec. 19, 2016.

Posted by Marcia Oddi on January 13, 2017 11:56 AM
Posted to Ind. Tax Ct. Decisions | Indiana Courts | Indiana Government

Ind. Decisions - "Missed Deadline Could Terminate Appeal of Gary Triple Murderer"

The sub-header to this story by Eric Berman of WIBC is "Attorneys ask justices to treat unsigned document as technicality, reinstate appeal of death sentence." The case, a direct appeal argued Thursday before the Supreme Court, is Kevin Charles Isom v. State of Indiana. Reporter Berman writes:

The Indiana Supreme Court will decide whether a Gary man who murdered his family has blown his chance to appeal his death sentence.

Kevin Isom has been on death row for four years for gunning down his wife and two teenage stepchildren in 2007. But when Isom's public defenders brought him his appeal papers to sign, they forgot one. When they went back to correct it, Isom viewed the oversight as a sign of incompetence, and refused to sign it or even meet with them unless he got a new lawyer. Despite a judge's warnings he'd lose his right to appeal, Isom stuck to his refusal and let the filing deadline pass.

The Court is considering whether the missing document is a harmless oversight, or if allowing his appeal would give defendants a new delaying tactic. Deputy attorney general Kelly Loy notes the missed deadline has already put the case in limbo for a full year. And she questions whether Isom is really interested in appealing. Justice Mark Massa notes Isom flatly said in court he'd sign if he got a new lawyer, and Justice Steve David says the defender's office could definitively resolve the issue by assigning a new attorney and see if it changes Isom's position.

But Justice Robert Rucker says the stalemate reflects a defendant trying to make his own rules. And Massa questions whether Isom's actions and statements indicate that he doesn't understand what's going on, or that he understands perfectly and is trying to game the system.

Isom could still appeal in federal court, but that deadline is seven weeks away. State public defender Anne Kaiser argues Isom's refusal to sign suggests he's mentally incompetent to make decisions about his defense, and says lawyers may pursue the same argument if Isom doesn't authorize a federal appeal.

ILB: Watch the oral argument here.

Posted by Marcia Oddi on January 13, 2017 11:00 AM
Posted to Ind. Trial Ct. Decisions

Thursday, January 12, 2017

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

For publication opinions today (2):

NFP civil decisions today (0):

In Paul and Michelle Riley v. AAA Automotive, LLC, d/b/a 3A Automotive, a 12-page opinion, Judge Bailey writes:

Paul and Michelle Riley (“the Rileys”) appeal a judgment entered upon an arbitrator’s award in favor of AAA Automotive, LLC d/b/a 3A Automotive (“3A Automotive”). The Rileys present the sole, restated issue of whether the trial court erred in refusing to vacate the award, which consisted almost entirely of attorney’s fees, apparently itemized in an ex parte document submitted to the arbitrator but not provided to the Rileys in accordance with Alternative Dispute Resolution Rule 3.4(B) or provided to the trial court. We reverse. * * *

On appeal, the Rileys concede that they did not oppose arbitration after mediation could not be timely scheduled or was unsuccessful. However, neither party provided this Court with an agreement defining the scope of arbitration. The Chronological Case Summary does not reflect the filing of an agreement to arbitrate. Even assuming a proper arbitration order, without an agreement, we cannot definitively discern whether the arbitrator exceeded his authority as to substantive provisions. However, the lack of impartial and fair proceedings is evident. The arbitrator accepted an ex parte document upon which he apparently rested the award. The Rileys’ lack of notice and opportunity to respond is readily apparent from the argument and admissions made by the attorney for 3A Automotive at the motion to correct error hearing:

I did not give those [attorney fee’s invoices] to the Defendant because I feel like they’re Work Product and protected by Attorney/Client Privilege because they actually have my strategies inside of them. No objection was made that those details weren’t there. But the affidavit, which is attached – I can – yeah, I don’t have a copy of the affidavit. But in arbitration, an affidavit where I swore that all my attorney fees were correct and accurate was presented to the arbitrator and to the Defendant. And I also presented the arbitrator with my detailed invoices with a claim that they were Attorney/Client Privilege and I wasn’t going to turn [them] over to the Defendant. And there were objections during the arbitration made that I didn’t turn those over to anyone. And the arbitrator looked at my invoices and the hours that I spent on it. My rate is very reasonable. It’s too reasonable in some cases.
(Tr. at 31.) Attorney Obermeyer went on to claim that his fee was “fair” but also concede that the fees “still got out of hand.” (Tr. at 31-32.) Subsequent commentary indicated that he claimed entitlement to fees to obtain a copy of the Carfax report, something relevant to his own client’s defense of the counterclaim for fraud.

There is no evidence of an arbitration agreement in the record and, hence, no evidence that there was a meeting of the minds concerning the scope and terms of the arbitration. Thus, the arbitration proceedings were for naught, and the judgment on the arbitration award must be vacated.[6]

The trial court erred in entering judgment upon the purported arbitration award. Reversed.
__________________
[6] As a cautionary note, alternative dispute resolution has reached full bloom since it was first recognized by our Indiana Supreme Court. Nevertheless, absent a contract, our courts are to remain open – pursuant to Article 1, Section 12 of the Indiana Constitution – and participation in alternative dispute resolution is still voluntary. While we encourage voluntary settlement and resolution, we do so only after full disclosure of the nature of the alternative dispute method selected and its consequences to the litigants. It is incumbent upon the mediator or arbitrator to document the agreement to mediate or arbitrate in the Chronological Case Summary. See A.D.R. 1.8. And, moreover, where an individual has been selected first as a mediator, we question the propriety of that individual continuing to participate as an arbitrator, when he or she has first participated with the same litigants in a failed mediation.

In In the Matter of: S.G., L.G., D.G., & A.W. and S.S. (Mother) v. Indiana Department of Child Servcies, and Child Advocates, Inc., a 19-page opinion, Judge Riley writes:
Mother challenges the trial court’s order that DCS need not undertake reasonable efforts to reunify her with the Children. In general, once a child has been declared a CHINS, DCS is legally required to “make reasonable efforts to preserve and reunify families . . . to make it possible for the child to return safely to the child’s home as soon as possible.” Ind. Code § 31-34-21-5.5(b)(2). However, such reasonable efforts at reunification “are not required if the court finds . . . [that] [t]he parental rights of a parent with respect to a biological or adoptive sibling of a child who is a [CHINS] have been involuntarily terminated by a court.” I.C. § 31-34-21-5.6(b)(4) (No Reasonable Efforts Statute). In the trial court’s Order adjudicating the Children to be CHINS, it found that reasonable efforts are not required based on the fact that Mother’s parental rights to M.G. and A.G. were previously terminated. Mother now contends that “[t]his [N]o [R]easonable [E]fforts [S]tatute is unconstitutional as applied to [her] and is also void for vagueness.” (Appellant’s Br. p. 12) (internal quotation marks omitted). In the alternative, even if we find that the No Reasonable Efforts Statute is constitutional, Mother asserts that the trial court abused its discretion by applying it in this case. * * *

Based on the foregoing, we conclude that the No Reasonable Efforts Statute is not unconstitutional as applied to Mother, and the trial court did not abuse its discretion by granting DCS’ request to forego reasonable efforts.

NFP criminal decisions today (1):

Michaeel Gonser v. State of Indiana (mem. dec.)

Posted by Marcia Oddi on January 12, 2017 11:10 AM
Posted to Ind. App.Ct. Decisions

Ind. Decisions - More on COA opinion in Groth v. State

Updating a long list of ILB posts, of which this one on Jan. 10th is the most recent, here in full is an editorial today in the Fort Wayne Journal Gazette. The heading is "Balance of power: Judge wisely holds Pence to open-records law":

Monday, the day his term as Indiana’s 50th governor ended, Mike Pence got a going-away present from the Indiana Court of Appeals. But it came, thankfully, with some crucial qualifiers.

A long-running legal battle over the governor’s decision to deny a 2014 open-records request was resolved in Pence’s favor by a three-judge panel.

By a 2-1 vote, the court upheld a lower court’s ruling that Pence acted properly when he withheld some documents that had been sought by Indianapolis attorney William Groth under the Indiana Access to Public Records Act. The court agreed with Pence’s argument that the documents, which related to Indiana’s decision to join the state of Texas in a legal challenge to an immigration order by President Barack Obama, were legal working papers that were exempt from public disclosure.

Judge Edward Najam wrote that one of the documents the governor decided to withhold, a “white paper” on legal strategy that was prepared by a Texas official, “is exactly the type of record that may be excluded from public access under APRA.” The court ruled that the governor’s decision to redact some information from legal invoices related to the decision was similarly within the law.

This is the way the law is supposed to work. The Indiana public access counselor, Luke Britt, and a superior court judge had previously come to the same conclusion.

But Pence’s legal team sought to go much further, citing an Indiana Supreme Court decision last year that has made the legislature virtually exempt from its own open-records requirements.

That case also involved a request by Groth. He had sought access to any communications that might have flowed between Rep. Eric Koch, R-Bedford, then the chairman of the House Utilities, Energy and Telecommunications Committee, and utility executives regarding a bill Koch was writing that would have discouraged homeowners and other private entities from producing solar power.

Last April, the Indiana Supreme Court effectively washed its hands of ruling on Groth’s request, contending that though the open-records law applied to the legislature, the court should not be determining whether the lawmakers’ definition of a “work product” was appropriate because of the doctrine of separation of powers. (Legislators who profess to be in favor of open government still must address the problem that ruling has created.)

Pence’s attorneys argued that the high court’s concern with separation of powers meant that the governor should be making his own decisions about when and how the open-records law applies to him.

But in a powerfully written opinion, Najam rejected that argument.

“The governor’s argument would, in effect, render APRA meaningless as applied to him and his staff,” Najam wrote. “APRA does not provide for any such absolute privilege, and the separation of powers doctrine does not require it. We reject the Governor’s assertion that his ‘own determinations’ regarding whether to disclose public records are not subject to judicial review.”

Steve Key, executive director of the Hoosier State Press Association, said the decision was a key one. “They didn’t buy the governor’s argument that this is a separation-of-powers issue,” he said Tuesday.

Pence’s attempt to claim exemption from the open-records law was puzzling; he has generally been a strong champion of open government. In any case, new Gov. Eric Holcomb has an opportunity to reset the clock by indicating he accepts the court’s decision and intends to live within the letter and spirit of Indiana’s open-records law.

Posted by Marcia Oddi on January 12, 2017 10:59 AM
Posted to Ind. App.Ct. Decisions

Ind. Law - "South Bend school board president accused of sending 'vulgar and derogatory' text"

Kevin Allen reports today in a story in the South Bend Tribune that begins:

On Monday evening, South Bend Community School Corp. board members voted unanimously to make Stan Wruble the board's new president.

Near the end of that same meeting, local attorney Pete Agostino stood up during the public comment period to say the board should censure Wruble, who also is a local attorney. Agostino's reason: a "vulgar and derogatory" text message that Wruble sent to one of Agostino's clients.

"But it isn't the vulgarity of that message that causes me to be here," Agostino told the board. "The words that Mr. Wruble used were not just offensive. They manifested his prejudice based on gender, sexual orientation and national origin. And that is why I'm here. There should be no room in the South Bend Community School Corp. for behavior like that — especially among members of this board."

Agostino handed a printout of Wruble's text message to each member of the board, but he didn't ask for it to be read aloud at the meeting.

The Tribune filed a public records request for the document on Tuesday. South Bend school administrators acknowledged that the document is a public record, but they had not provided it by Wednesday night.

Posted by Marcia Oddi on January 12, 2017 10:53 AM
Posted to Indiana Law

Ind. Gov't. - "Coalition fighting abortion bills"

Niki Kelly reports in the Fort Wayne Journal Gazette:

As legislators push to add more regulations to abortions – and even a total ban – a new alliance supporting reproductive rights has sprouted.

The Indiana Reproductive Justice Coalition is going to fight abortion limitations this session and started Wednesday by delivering 3,000 petitions to Gov. Eric Holcomb’s office against House Bill 1134.

The legislation, sponsored by Goshen Republican Rep. Curt Nisly, would ban abortion.

“We hoped to move beyond bills trying to strip Hoosiers of their constitutional rights,” said Harmony Glenn of Indy Feminists. “We find this unacceptable.”

It is the latest attempt by Republicans, who have a supermajority in the Indiana House and Senate, to try to reduce or eliminate the number of abortions in the state.

Several recent Indiana bills have been struck down by federal judges, including one last year that would have prohibited abortions sought because of a fetus’ genetic abnormalities – such as a diagnoses of Down syndrome.

Nisly’s bill is meant as a test case to see if a new U.S. Supreme Court will overturn Roe v. Wade – the 1973 decision legalizing abortion.

“It’s time to bring the Roe v. Wade era to its logical conclusion,” Nisly said. “My goal is to deregulate abortion right out of existence in Indiana.”

But that’s not the only bill on the table.

Sen. Dennis Kruse, R-Auburn, has another one that has a much better chance of becoming law because it builds on current restrictions.

Senate Bill 118
would push back the waiting period to 48 hours between an initial visit and when a person could have an abortion. And at least 48 hours beforehand, women would be forced to view an ultrasound of the fetus and listen to the fetal heartbeat.

Current law allows women to opt out and the waiting period for informed consent is 18 hours.

Kruse said his bill isn’t about patient safety – it’s about hoping more women will reconsider and decide not to abort.

“I’m pro-life so I think it would advance that cause,” he said. “When women actually hear the heartbeat or see the baby on an ultrasound, many decide to keep it. They see it as a human being.”

House Speaker Brian Bosma hasn’t killed Nisly’s bill but also hasn’t embraced it, saying, “I don’t think we should buy a lawsuit, personally.”

It has been sent to House Public Policy where new Chairman Rep. Ben Smaltz, R-Auburn, hasn’t decided if it will get a hearing.

Kruse’s bill has been sent to the Health and Provider Services Committee, where abortion bills have regularly passed.

Posted by Marcia Oddi on January 12, 2017 10:35 AM
Posted to Indiana Government

Ind. Gov't. - "DNR hearing officer backs state park alcohol ruling change"

More on the Indiana Dunes Pavilion alcohol controversy, via a story yesterday by Amy Lavalley in the Gary Post-Tribune. (List of earlier posts.) The lengthy story begins:

A change to bring a state rule into compliance with a new state law that allowed the Indiana Department of Natural Resources to apply for a liquor permit for the pavilion at Indiana Dunes State Park recently got an apparent boost.

The hearing officer who presided over a public hearing on the change held in late November at Woodland Park recommended the state's Natural Resources Commission make the change in a filing made public Tuesday on the DNR's website for the pavilion project.

The commission is scheduled to consider the matter during a Jan. 17 meeting in Indianapolis.

The 145-page filing, which includes public comments made at the hearing as well as those submitted electronically and by mail, also includes a DNR response to concerns raised by the public about safety and other matters if liquor were made available along the lakefront.

ILB: Here is the 145-page report.

Posted by Marcia Oddi on January 12, 2017 09:24 AM
Posted to Indiana Government

Ind. Gov't. - "New Superintendent of Public Instruction, Jennifer McCormick, is responding to concerns about layoffs and resignations at the Department of Education" [Updated]

Kara Kenney reported last evening for WRTV6:

The new Superintendent of Public Instruction, Jennifer McCormick, is responding to concerns about layoffs and resignations at the Indiana Department of Education.

“This is the part of transitioning that nobody enjoys,” said McCormick. “Obviously they’re good people that are in just a situation where we want to make some changes.”

Call 6 Investigates has confirmed 34 people have been pink-slipped and an additional 26 people have resigned, for a total of 60 workers.

That’s approximately a quarter of IDOE’s entire 250 person workforce.

As the office changes from Democrat to Republican leadership, some of the layoffs were expected, especially among Glenda Ritz’s cabinet, such as chief of staff and government affairs.

However, among those pink slipped also included outreach coordinators who worked with children and teachers in struggling schools. * * *

McCormick denied politics were at play when it came to layoffs.

“It wasn't a political activity,” said McCormick. “We looked at job performance and where we want to go with programming." * * *

Call 6 Investigates also checked with other elected offices, such as the Indiana Attorney General’s office and the Governor’s office, but they did not provide any layoff or resignation figures.

[Updated at 10:05 a.m.] Kara Kenney tweets: "@INATTYGENERAL office confirms 24 people gone from office through resignations, retirements and firings."

Posted by Marcia Oddi on January 12, 2017 09:16 AM
Posted to Indiana Government

Ind. Decisions - Tax Court posts one, filed Jan. 11

In Merchandise Warehouse Co., Inc. v. Indiana Department of State Revenue, an 11-page opinion, Judge Wentworth writes:

Between October 2009 and September 2012 (the period at issue), Merchandise Warehouse Co., Inc. purchased certain freezer equipment and electricity to power its freezer equipment. Upon review, the Court finds that those retail transactions were not exempt from Indiana sales tax under Indiana Code § 6-2.5-5-3 and Indiana Code § 6- 2.5-5-5.1. * * *

Merchandise Warehouse does not produce other tangible personal property in an integrated production process when it freezes its customers’ food products. Accordingly, the Court GRANTS summary judgment in favor of the Department and AGAINST Merchandise Warehouse.

Posted by Marcia Oddi on January 12, 2017 08:44 AM
Posted to Ind. Tax Ct. Decisions

Wednesday, January 11, 2017

Ind. Decisions - 7th Circuit decides one Indiana case today

In Stephen H. Perron v. J.P. Morgan Chase Bank, N.A. (SD Ind., Pratt), a 12-page opinion, Judge Sykes writes:

Stephen Perron and Christine Jackson owned their home in Indianapolis subject to a note and mortgage serviced by J.P. Morgan Chase Bank. In 2012 the couple divorced, ending their 25-year marriage. They blame Chase for contributing to the collapse of their marriage by failing to comply with its obligations under the Real Estate Settlement Procedures Act (“RESPA”), 12 U.S.C. §§ 2601–2617.

RESPA requires mortgage servicers to correct account errors and disclose account information when a borrower sends a written request for information. In 2011 Perron and Jackson sent two such letters accusing Chase of erroneously paying the wrong homeowner’s insurer using $1,422 from their escrow account. The mistake was their own fault; they had switched insurers without telling Chase. When the bank learned of the change, it promptly paid the new insurer and informed the couple that their old insurer would send a refund check. The bank also told them to forward the refund check in order to replenish the depleted escrow.

They didn’t. When the refund came, they pocketed the money instead. So the bank adjusted their monthly mortgage payment to make up the shortfall. When the couple refused to pay the higher amount, the mortgage went into default. Instead of curing, they sent Chase two letters requesting information under RESPA and demanding that the bank reimburse their escrow. In response Chase sent a complete account history, including a detailed escrow statement.

The couple then sued Chase claiming that its response was inadequate under RESPA and caused more than $300,000 in damages—including the loss of their marriage. They tacked on a claim for breach of the implied covenant of good faith and fair dealing. The district judge entered summary judgment for Chase.

We affirm. Chase’s response almost perfectly complied with its RESPA duties. To the extent that any requested information was missing, Perron and Jackson suffered no actual damages and thus have no viable claim. Nor did Chase breach the duty of good faith and fair dealing, assuming that Indiana would recognize the implied covenant in this context.

Posted by Marcia Oddi on January 11, 2017 02:16 PM
Posted to Ind. (7th Cir.) Decisions

Ind. Courts - Monroe County: "Court officials feeling impact of sentencing code changes"

Ernest Rollins reports today in the $$ Bloomington Herald-Times in a long story - some quotes:

A change in state law has been in effect for a full year, and court officials say the local justice system is feeling the impact of the recent law change regarding the incarceration of Level 6 felons.

Starting on Jan. 1, 2016, Level 6 felons were ineligible to be sentenced to state correctional facilities. The state Legislature approved the change in 2014 as part of its revision of the Indiana Criminal Code. Sentencing for Level 6 felonies ranges from 6 months to 2½ years, and can be for crimes such as possession of controlled substances or check deception and fraud.

The story continues that under a "federal consent decree that required the jail not to exceed a 248 secure bed count number" the Marion County jail population is monitored on a daily basis.
[Monroe County Circuit Court Judge Kenneth Todd] said since the ruling went into effect, the typical number of inmates in secure beds at the jail has increased to the point where the county has hit the ceiling — or surpassed — jail capacity as part of the consent decree. * * *

When the jail exceeds allowed jail capacity, Crowe said, the county looks to other jails to house offenders. * * *

But the strategy of transporting inmates to other counties when Monroe has capacity issues is becoming harder to carry out.

“We are not getting other counties willing to accept them,” Crowe said, adding the common refrain is that the jails do not have any room. Crowe said the law change has affected other counties much more than Monroe. He said many of the inmates are at the jail on charges of probation violation or failure to appear in court, generally Level 6 felons and below who were already convicted and spent time in the county jail.

Changes to the criminal code also affected the county’s community corrections department, which saw an increase in referrals.

Posted by Marcia Oddi on January 11, 2017 01:35 PM
Posted to Indiana Courts

Ind. Decisions - More on "Court says IU South Bend professor who filed suit wasn't defamed: IU found another professor responsible for plagiarism"

Updating this ILB post from Jan. 4, 2017, Margaret Fosmoe of the South Bend Tribune updates her earlier story by reporting today:

SOUTH BEND — Tenured longtime Indiana University South Bend business professor Douglas Agbetsiafa was fired in 2014 for plagiarism, according to Indiana University.

The Tribune made a formal request to IU about the circumstances of Agbetsiafa's departure. * * *

Agbetsiafa was a professor and at one time chair of IU South Bend's economics department. He was paid a salary of $108,351 in 2013, according to the state's online database of public spending.

A Jan. 4 Tribune article reported the outcome of a defamation lawsuit filed by IU South Bend business professor Peter Aghimien against another business professor, Mark Fox.

Posted by Marcia Oddi on January 11, 2017 01:19 PM
Posted to Ind. App.Ct. Decisions

Ind. Decisions - "Appeals court reverses drug conviction after EPD SWAT raid"

The 2-1 Court of Appeals opinion last Friday, Jan. 6th in Mario Deon Watkins v. State of Indiana is the subject of a story today by Jon Webb in the Evansville Courier & Press that begins:

The Indiana Court of Appeals last week ruled to reverse an Evansville man’s felony drug sentence, claiming city police used unreasonably intrusive methods during an arrest involving a SWAT team and flash-bang grenades.

In a 2-1 decision published Friday, the court ruled that some evidence in the trial shouldn’t have been admitted because of how it was obtained. Judges particularly criticized the use of a flash-bang grenade that went off in the same room as a 9-month-old baby.

“Comparing the factors, we conclude that while there was a considerable degree of suspicion, the extent of law enforcement needs for a military-style assault was low and the degree of intrusion was unreasonably high,” Judge Elaine Brown wrote in the majority opinion. “Under these specific circumstances and particularly in light of the use of a flash bang grenade in the same room as a 9-month old baby who was ‘very close’ to where the flash bang was deployed, the State has not demonstrated that the police conduct was reasonable under the totality of the circumstances. We conclude that the search violated Watkins’s rights under Article 1, Section 11 of the Indiana Constitution ... ."

Later in the story:
Cullum said the department has since changed the way it employs flash-bang devices, putting them on the threshold of a residence as opposed to tossing them inside. The impact, he said, is the same.
The ILB recalls this 2015 7th Circuit opinion, also involving the Evansville police and flash-bang grenades.

Posted by Marcia Oddi on January 11, 2017 12:59 PM
Posted to Ind. App.Ct. Decisions

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

For publication opinions today (1):

In Dominique Castillo v. State of Indiana, a 10-page opinion, Sr. Judge Sharpnack writes:

The trial court revoked the probation of Dominique Castillo and ordered that he serve the whole of his suspended sentence. He appeals contending that the trial court violated his due process rights because it did not explain why it ordered him to serve hi s entire suspended sentence. He also claims that because the trial court did not explain its choice, it is possible that it may have considered inappropriate testimony. He requests that we “reverse the trial court’s order revoking his suspended sentence and remand for an additional hearing to address the appropriate sanction for his violation of probation after which the trial court should issue a statement of its reasons for its decision.” Appellant’s Reply Br. p. 7. We affirm. * * *

Castillo’s argument, by his own admission, is “pure speculation because” according to Castillo “there is [no statement] from which the trial court’s rationale [in choosing a sanction] can be discerned.” Appellant’s Br. p. 11. However, w e already have determined the trial court was not required to provide specific reasons for imposing the sanction. W e are un persuaded the trial court may have considered inappropriate testimony. No abuse of discretion occurred here.

NFP civil decisions today (0):

NFP criminal decisions today (5):

Fernando J. Alvarez, Jr. v. State of Indiana (mem. dec.)

Alisha M. King v. State of Indiana (mem. dec.)

Billy T. Reames v. State of Indiana (mem. dec.)

Zachary Poteet v. State of Indiana (mem. dec.)

John Webb v. State of Indiana (mem. dec.)

Posted by Marcia Oddi on January 11, 2017 11:18 AM
Posted to Ind. App.Ct. Decisions

Ind. Decisions - More on: Federal Judge Barker decides GEFT challenge to Indianapolis digital sign prohibition

Updating this ILB post from May 20, 2016, the ILB reports today in a detailed story that begins:

Billboard company GEFT Outdoor LLC and the city of Indianapolis have agreed to a court settlement that will allow the company to operate two local digital billboards while sparing the city any financial liability for a former sign ordinance that was found to be unconstitutional.

Judge Sarah Evans Barker issued an order stipulating terms of the agreement Tuesday in U.S. District Court in Indianapolis.

Under the settlement, Indianapolis-based GEFT will be able to convert two traditional billboards near Interstate 70 on the city’s east and west sides into digital signs, as long as it abides by certain conditions.

The city had previously denied GEFT's requests to convert the billboards, which are at 4305 W. Morris St. and 5780 E. 25th St.

GEFT agreed to abandon its claim for damages and attorneys’ fees against the city. The company said in June that it expected those damages would amount to millions of dollars.

The agreement effectively ends a legal fight that began in October 2015 when GEFT sued the city over its sign ordinance. The company claimed that a recent U.S. Supreme Court decision made the city’s sign ordinance unconstitutional.

Here is a copy of the 14-page, Jan. 10, 2017 order.

Posted by Marcia Oddi on January 11, 2017 10:55 AM
Posted to Ind Fed D.Ct. Decisions

Ind. Courts - More on: Elimination of Hammond City Court would not be a radical idea

Updating this Dec. 5, 2016 ILB post, Ed Bierschenk of the NWI Times reported yesterday in a story headed "Hammond council votes to phase out City Court" that begins:

HAMMOND — The Hammond City Council on Monday approved an ordinance that would phase out the City Court over the next two years, despite some vociferous objections by some council members, attorneys and a few members of the public.

"I'm disappointed," said recently appointed Hammond City Court Judge Amy Jorgensen following the council vote.

Under the proposed ordinance, most of the new filings normally made with the City Court would be made instead in Lake Superior Court in the coming year. The exemption would be ordinance violations, which Mayor Thomas McDermott Jr. is proposing be heard by a separate Ordinance Court in the city.

Under the ordinance sponsored by Dave Woerpel, D-5th, "the Hammond City Court will cease to exist on Dec. 31, 2018."

Woerpel and McDermott said their reason for eliminating the court had to do with saving perhaps $1.5 million a year in the city budget. The said the savings are needed in the wake of tax caps that could cost the city $3.5 million to $5.5 million in annual property tax revenue in 2020.

Posted by Marcia Oddi on January 11, 2017 10:46 AM
Posted to Indiana Courts

Ind. Law - "Two lawmakers want to protect student journalists"

That is the headline to this story today in the Kokomo Tribune, reported by Maureen Hayden of CNHI. Some quotes:

Principals and superintendents who censor student newspapers may face new limits under a proposal to restore First Amendment rights to young journalists.

Indiana lawmakers are considering a move to reverse the effects of a 1988 U.S. Supreme Court ruling that gave school officials free rein to stop the publication of stories they deemed objectionable - even ones that meet other journalistic standards.

The bill is carried by two lawmakers with ties to journalism - Rep. Ed Clere, R-New Albany, a former newspaper reporter, and Rep. Ed Delaney, D-Indianapolis, a former newspaper lawyer who’s defended reporters in court.

Clere said student reporters have operated for too long without the freedoms afforded to professional media as their stories, or even ideas, get censored before going to print. * * *

The legislation models laws passed in several states - including Illinois, Missouri and South Dakota - with support from the Student Law Press Center.

The laws prevent high schools and colleges from operating under a precedent set by Hazelwood School District v. Kuhlmeier, the ruling that gave administrators the authority to censor most school-sponsored media.

Advocates for student journalists say the legislation is needed to ensure young journalists can report on news of public concern without interference from those who may be embarrassed by their coverage. * * *

The legislation has support from the Indiana Collegiate Press Association, whose student-members worked on the bill's language and are encouraging their local legislators to vote for it. The bill would also give student journalists at Indiana’s public universities more free speech protections that were curbed by 1988 court ruling.

ILB: For background, see this ILB post from 2006. (Be aware that none of the links are still active.)

Hazelwood was a 1988 SCOTUS decision that held the First Amendment rights of high-student journalists are not violated when school officials prevent the publication of certain articles in the school newspaper.

In 2005, in the case of Hosty v. Carter, the 7th Circuit, meeting en banc, held 7-4 that "Hazelwood extends to a university setting." The SCOTUS denied cert.

The proposal is HB 1130. Here is the introduced version. The bill is in the House Education committee.

Posted by Marcia Oddi on January 11, 2017 09:41 AM
Posted to Courts in general | Ind. (7th Cir.) Decisions | Indiana Law

Tuesday, January 10, 2017

Ind. Decisions - Does the State have standing to appeal in Groth v. State?

Concerning this ILB post this morning re the Court of Appeals decision in Groth v. State, where the FWJG quoted attorney Willam Groth as saying:

Groth doesn’t believe that the Pence administration –now run by new Gov. Eric Holcomb – has standing to appeal because it won the underlying case.
An attorney reader has sent the ILB this note:
Appellate Rule 57(B). Decisions From Which Transfer May be Sought. Transfer may be sought from adverse decisions issued by the Court of Appeals in the following form ...

Although technically a win ("affirmed"), I think the decision is still arguably adverse to the State because of the way in which it won.

ILB: Another question, of course, is whether the new administration would even want to appeal.

Posted by Marcia Oddi on January 10, 2017 01:58 PM
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Transfer lists for weeks ending Dec. 30, 2016, and Jan. 6, 2017

There have been no transfer dispositions for the past two weeks, and hence, no transfer lists.

Posted by Marcia Oddi on January 10, 2017 12:15 PM
Posted to Indiana Transfer Lists

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

For publication opinions today (1):

In Jacob Skipworth v. State of Indiana, a 9-page opinion, Judge Robb writes:

Following a bench trial, Jacob Skipworth was convicted of criminal confinement and strangulation, both Level 6 felonies. The trial court sentenced Skipworth to one year for each conviction, to be served concurrently. The trial court gave Skipworth 258 days’ credit for time served and ordered the remaining 107 days to be suspended to probation. As a condition of probation, the trial court ordered Skipworth to complete twenty-six weeks of domestic violence counseling, and stated if Skipworth complied with all conditions of probation, it would grant alternate misdemeanor sentencing. Skipworth now appeals, raising one issue that we expand and restate as two: (1) whether the trial court abused its discretion in ordering domestic violence counseling, and (2) whether the trial court’s oral and written sentencing statements conflict. Concluding the trial court did not abuse its discretion, but that the Sentencing Order and Abstract of Judgment contain clerical errors, we affirm and remand to the trial court to correct these errors. * * *

We conclude the trial court did not abuse its discretion in ordering domestic violence counseling. However, the trial court’s Sentencing Order and Abstract of Judgment contain clerical errors and we remand to the trial court to correct those errors.

NFP civil decisions today (0):

NFP criminal decisions today (2):

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

Christopher C. Brown v. State of Indiana (mem. dec.)

Posted by Marcia Oddi on January 10, 2017 12:03 PM
Posted to Ind. App.Ct. Decisions

Ind. Decisions - "Pence wins ruling on withholding records"

Yesterday's 2-1 Court of Appeals opinion in Groth v. Pence is the subject of several news stories today.

Niki Kelly reports in the Fort Wayne Journal Gazette:

The Indiana Court of Appeals ruled Monday that former Gov. Mike Pence’s staff appropriately withheld and redacted several documents in a public records dispute.

But the court rejected the governor’s claim that his response to requests under the Access to Public Records Act are immune from judicial review. Without such a finding, Hoosiers would have had no legal recourse when denied a public record by the executive branch.

The ruling said Pence made a categorical claim of executive privilege from disclosure of his records.

“The Governor’s argument would, in effect, render APRA meaningless as applied to him and his staff. APRA does not provide for any such absolute privilege, and the separation of powers doctrine does not require it,” the court found.

“We reject the Governor’s assertion that his ‘own determinations’ regarding whether to disclose public records are not subject to judicial review.”

Reporter Kelly's story continues:
The Pence case began in 2014 when the governor hired outside counsel – Barnes & Thornburg – to join a multistate suit led by Texas against President Barack Obama’s executive order providing work permits and protection from deportation to as many as 5 million immigrants in the country illegally.

Indianapolis attorney William Groth sought the attorney’s contract and invoices, as well as emails between Texas officials and Pence’s office. The documents he received were redacted or not produced, so he filed a lawsuit. As soon as the House case was decided, Pence’s attorneys submitted a new argument in the case saying the Koch case means the courts can’t get involved.

Monday’s ruling said Pence’s office turned over more than 50 pages of documents. But some of it was redacted. And Groth specifically wanted a “white paper” that was attached to an email from Texas officials looking for additional states to sign onto the lawsuit.

The appellate court reviewed that paper privately and agreed that it was a privileged attorney-client communication devoted to legal theory and strategy. The ruling also upheld redactions on the invoices.

Groth told The Journal Gazette he was pleased with the decision. The only reason he appealed it was Pence’s last-ditch effort to extend the legislative decision in the Koch case to the executive branch.

“And the court unanimously rejected his argument,” he said.

Groth said he will have to consider whether he might appeal.

He noted the decision on the white paper is a close legal question but might not be worth opening up the case for reversal on the larger separation of powers issue.

“I will have to decide whether it’s worth taking that risk,” he said.

Groth doesn’t believe that the Pence administration –now run by new Gov. Eric Holcomb – has standing to appeal because it won the underlying case.

Fatima Hussein reports in a long story in the Indianapolis Star:
An Indiana Appeals Court sided with Vice President-elect Mike Pence in ruling that an Indiana attorney does not have the right to view a political white paper that was included in a 2014 public records request.

The court, however, did not relinquish its power to second-guess the executive branch on matters of the Indiana Access to Public Records Acts.

That was an important finding because advocates of government transparency feared a Pence victory in the suit could set a broader precedent that would embolden future governors to refuse to disclose or heavily redact public documents with no court oversight.

Judge Edward W. Najam, in a 41-page opinion issued Monday, affirmed the merits of the Governor’s decision to withhold the white paper from public disclosure.

Najam added, however, "the Governor contends that his 'own determinations' under APRA are conclusive and that it would violate the separation of powers doctrine for the judiciary to 'second guess' those determinations."

"We cannot agree."

In other words, the opinion concluded that a governor's decision to deny a public records request can be reviewed by the court.

Posted by Marcia Oddi on January 10, 2017 11:10 AM
Posted to Ind. App.Ct. Decisions

Ind. Courts - State of the Judiciary scheduled for Wed., January 18

From the news release:

Indiana Chief Justice Loretta H. Rush will address the Governor and a joint session of the Indiana General Assembly for the annual State of the Judiciary. The formal update on the work of the judicial branch will be held Wednesday, January 18, 2017 at 2:00 p.m. EST in the chamber of the Indiana House of Representatives.

The Chief Justice is required to provide lawmakers with an update on the “condition of the courts” according to Article 7, Section 3, of the Indiana Constitution.

The 2017 address “Praise for our Partners in Justice” will focus on the work of clerks, public defenders, prosecutors, probation officers, volunteers, advocates, law enforcement, interpreters, service providers, mentors, educators, local government officials, attorneys, and others whose contributions are vital to the success of the judicial branch.

Posted by Marcia Oddi on January 10, 2017 10:50 AM
Posted to Indiana Courts

Ind. Gov't. - Decatur County Board of Zoning Appeals (BZA) denies shooting range petition

Brent Brown of the Greensburg Daily News had a very detailed story Jan. 6th on a BZA denial that is likely to be appealed. Some quotes:

GREENSBURG — Citing safety concerns, the Decatur County Board of Zoning Appeals (BZA) shot down a petition by the owners of a local rifle manufacturing company that would have allowed the proprietors to operate a shooting range for the purpose of testing precision firearms on the property.

There were few, if any, empty seats in the Decatur County Courthouse meeting room when the petition by Bell Precision Rifles was heard Wednesday night, and the issue was debated for nearly two hours by the board members, the petitioners, their attorney, friends and clients of the owners, and several neighbors living in the vicinity of the range.

In the end, board president Albert Armand, vice president Jay Hatton, and members Roger Krzyanowski, Steven Dudley and Joyce Brindley all voted against the proposal, largely on the grounds of worries concerning public safety and the owners’ alleged non-compliance with certain county ordinances.

The board’s decision prohibits the owners – and their on-site customers – from firing weapons on the range, a practice neighbors said has been taking place on the property for years, outside the bounds of a previously granted zoning petition. * * *

Guy Relford, the attorney for the Bells and an NRA certified firearms expert and trainer, said the location of the range and the precision of the weapons created and /or modified by Joseph Bell would make the 600-yard range safer than any other location in which shooting occurs in Decatur County, such as hunting areas or other rural private property.

Relford explained that the weapons are fired primarily from the prone position, with the shooter taking aim at earthen berms specifically constructed to absorb the impact of bullets. The downward angle of the shots, and the pinpoint accuracy of the weapons used, would ensure the range is as safe as possible, the attorney reasoned.

Posted by Marcia Oddi on January 10, 2017 09:03 AM
Posted to Indiana Government

Ind. Courts - "Justice delayed in Lake Station's OWI cases"

Bill Dolan of the NWI Times reported yesterday in a lengthy story:

The past finally caught up with hundreds convicted of serious traffic offenses in Lake Station City Court.

The Indiana Bureau of Motor Vehicles recently announced it has imposed sanctions, including the suspension of driver's licenses, on approximately 700 drivers for serious violations that, in some cases, occurred as long as eight years ago.

This belated reckoning is the result of a long-running failure in the Lake Station City Court to report convictions of OWI (Operating a vehicle While Intoxicated), reckless driving and other traffic violations to state officials between 2008 and 2014.

LaPorte County Prosecutor John Espar, who oversaw a state police investigation, called it a "general and widespread failure" of the court's legal duty.

But no one will pay the price for justice delayed.

Espar concluded in a report made public last week that although it was clear Miranda Brakley was the city court clerk who was responsible for not sending the reports, there is no evidence she or anyone else committed bribery, official misconduct or was a ghost employee under current state law.

He said the General Assembly changed the legal definition of official misconduct in 2011 to decriminalize a public official's failure to perform official duties, and any of Brakley's failures to report convictions to the BMV prior to 2011 now are beyond the state's five-year statute of limitations. * * *

He also said that although she failed to submit convictions to the BMV as her job required, "Under current law, whether good, bad or indifferent, a public servant my not be prosecuted for official misconduct, based exclusively upon a general failure to perform a statutory duty."

Posted by Marcia Oddi on January 10, 2017 08:48 AM
Posted to Indiana Courts

Monday, January 09, 2017

Ind. Decisions - Federal Judge Young makes permanent injunction against county court policy prohibiting certain employees from engaging in any "political activity"

Updating this ILB post from May 6, 2016, re the case of Allen v. Bartholomew County Court Services Dept., et al., where the federal court enjoined the application of the prohibitions of of Canon 4 of the Code of Judicial Conduct to a county court services employee who performed no judicial functions, this order issued today:

Docket Text:
ORDER on [33] Joint Stipulation - The preliminary injunction entered on May 6, 2016 [27] is to be made permanent. This entry disposes of all issues in this matter and judgment consistent with this entry will be entered. SEE ORDER. Signed by Judge Richard L. Young on 1/9/2017.

Posted by Marcia Oddi on January 9, 2017 05:59 PM
Posted to Ind Fed D.Ct. Decisions

Ind. Decisions - More on: COA decides Pence email case, Groth v. Pence

The ILB has had a number of posts on Groth v. Pence, the email public records challenge.

Today the Court of Appeals issued its opinion.

In answer to an ILB question, William R. Groth, plaintiff in the case, replies:

Two principal observations. The COA completely rejected Pence’s contention that CAC v. Koch shields his emails or makes non-justiciable claims like this under APRA. [ILB - see opinion, beginning on p. 15] Second, today’s decision revealed a sharp split in the panel over the application of the common interest privilege to the Texas AG’s “white paper.”
Groth adds that no decision has been made yet on a petition for transfer.

Posted by Marcia Oddi on January 9, 2017 01:21 PM
Posted to Ind. App.Ct. Decisions | Indiana Government

Ind. Decisions - COA decides Pence email case, Groth v. Pence

In Groth v. Pence, a 41-page, 2-1 opinion, Judge Najam writes:

The Indiana Access to Public Records Act (“APRA”) provides that “it is the public policy of the state that all persons are entitled to full and complete information regarding the affairs of government and the official acts of those who represent them as public officials and employees.” Ind. Code § 5-14-3-1 (Supp. 2014). Thus, in APRA our legislature declared that transparency in government is the public policy of the State of Indiana. But the public’s right of access to public records is also subject to well-recognized exceptions under APRA. * * *

We hold that, on these facts, Citizens Action Coalition does not apply to the request for public records directed to the Governor. We also hold that the trial court did not violate Groth’s due process rights. And we affirm on the merits of the Governor’s decisions to withhold the white paper from public disclosure and to partially redact the invoices. The white paper contains legal theories in contemplation of litigation, was used by the Governor in his decision to join the litigation, and is exactly the type of record that may be excluded from public access under APRA. Similarly, the Governor’s redactions from the legal invoices were within his discretion under APRA. * * *

Baker, J., concurs.
Vaidik, C.J., concurs in part and dissents in part with separate opinion. [that begins, on p. 34] I concur with the majority as to all issues except one. That is, I dissent from the majority’s conclusion that Governor Pence has met his burden of showing that the white paper is not subject to disclosure under APRA because it is a privileged attorney-client communication pursuant to the common-interest doctrine. In order for the common-interest doctrine to apply, the parties must first come to an agreement, and documents exchanged before an agreement is reached are not protected from disclosure. Here, there is no evidence in the record that Governor Pence and Texas officials reached an agreement before the white paper was emailed. As a result, I believe that the email served as a recruiting or lobbying tool by the State of Texas to encourage other states to join its legal challenge to President Obama’s executive orders on immigration. Because lobbying and soliciting are not protected by the common-interest doctrine, I believe that Governor Pence has not met his burden of showing that the white paper is protected from disclosure under APRA. * * *

The policy of APRA is to provide the public with full and complete information about the affairs of the government. Indeed, providing the public with information “is an essential function of a representative government.” I.C. § 5-14-3-1. Because the record reflects that Hodge emailed the white paper to Governor Pence’s chief of staff in order to lobby or solicit Indiana to join Texas’ legal challenge, and before any sort of agreement between Governor Pence and Texas was reached, I believe that Governor Pence has not met his burden of showing that the white paper is protected from disclosure under APRA. I would therefore reverse the trial court on this issue and order Governor Pence to produce the white paper.

Posted by Marcia Oddi on January 9, 2017 01:09 PM
Posted to Ind. App.Ct. Decisions

Environment - "Closing IPL's toxic ponds could cost millions"

Here is a long list of the ILB's earlier posts on coal ash, dating back to 2014. The most recent post, from Dec. 22, 2016, is headed "Congress Puts States In Coal Ash Drivers' Seats."

In the newest issue of the IBJ, John Russell reports, in a lengthy, important story:

For decades, Indianapolis Power & Light Co. dumped coal ash from its power plants at Harding Street in Indianapolis and Eagle Valley in Martinsville into unlined, industrial waste ponds—a common industry practice and completely legal. Over time, the ponds grew into small lakes with high embankments, up to 50 feet deep.

Now, as IPL is ditching coal in favor of natural gas at both power plants, and with new regulations taking effect, the utility wants to close the pits, cover the tops with plastic membranes, and top them off with nearly three feet of sand and soil.

But environmental groups and some public officials are urging IPL and state regulators to consider other options. They say the “cap-in-place” technology is too risky, because the ponds are near rivers and groundwater aquifers, raising the chances of drinking-water contamination.

They want IPL to dig up the coal ash from the pits and move it to safe, lined, dry landfills away from the waterways, or send it off to be reused as building materials.

“This is an environmental problem that’s been around for a long time,” said Tim Maloney, senior policy director at Hoosier Environmental Council. “It’s like an 18th century technology.”

The issue looms large for Indiana, which leads the nation in coal ash ponds, with 84 scattered around the state, according to a recent report from Maloney’s group.

Statewide, the ponds have had at least 13 documented cases of ash spills and other documented cases of groundwater contamination. One of the worst was a spill of 60 million gallons of coal ash into the West Fork of the White River near Martinsville in 2007 and 2008 when a levee failed at IPL’s Eagle Valley power plant.

Posted by Marcia Oddi on January 9, 2017 10:42 AM
Posted to Environment

Courts - "First criminal trial in deadly meningitis outbreak to begin"

That is the headline to this story today by Stacey Barchenger in The Tennesssean. Some quotes:

Peay was one of about 750 people nationwide sickened by fungal meningitis attributed to tainted steroid injections made by a Massachusetts pharmacy in 2012. Seventy-six people died in the outbreak, according to an investigation by the U.S. Food and Drug Administration.

Now, after a lengthy federal probe and two years of legal battling, Peay and other victims are anxiously watching as the first pharmacy executive goes to trial on criminal charges.

Facing a jury is Barry J. Cadden, the director of the New England Compounding Center who is charged with 25 counts of second-degree murder connected to deaths in seven states and other crimes. He and 13 other company executives and pharmacists were indicted in 2014.

Opening statements are scheduled to begin Monday in federal court in Boston.

The story links to the indictment.

The story points out that there were 11 deaths in Indiana, per the CDC.

The ILB recalls this related Indiana COA opinion in a civil suit, filed Nov. 7, 2016, that began:

Beginning in 2012, patients around the country began suffering meningitis after being injected with preservative-free methylprednisolone acetate (“MPA”), a steroid purchased from New England Compounding Pharmacy, Inc., a/k/a the New England Compounding Center (“NECC”). It was soon discovered that some lots of MPA had become contaminated with fungus. This consolidated appeal concerns claims brought by injured patients (or those suing on their behalf) (collectively, “the Plaintiffs”) against Anonymous Clinic in St. Joseph County and Orthopedic and Sports Medicine Center of Northern Indiana (“OSMC”) and affiliated entities in Elkhart County (collectively, “the Defendants”). Plaintiffs contend that the Defendants were negligent in choosing to administer preservative-free MPA and in failing to properly evaluate NECC before using it as a supplier.

Posted by Marcia Oddi on January 9, 2017 10:11 AM
Posted to Courts in general

Ind. Decisions - "COA OKs gun evidence in trial on non-gun charges"

Dan Carden of the NWI Times reported this weekend on two 2-1 COA opinions, involving the two co-defendants, both issued Dec. 29, 2016 (the 6th and 7th opinions summarized here by the ILB). The story begins:

Should a jury be told that a person on trial possessed a gun while allegedly committing a crime, if the gun was not used in the incident and is not directly connected to the charges?

That question, of the potentially prejudicial effect of legally carrying a gun, recently resulted in a sharply divided opinion by a three-judge panel of the Indiana Court of Appeals.

Posted by Marcia Oddi on January 9, 2017 09:57 AM
Posted to Ind. App.Ct. Decisions

Ind. Decisions - "Drug crimes dominate federal sentences in Southern Indiana"

Mark Wilson reported this weekend in the Evansville Courtier & Press in a long story that begins:

New court statistics show a growing percentage of prisoners sentenced for federal drug crimes in Southern Indiana are heroin offenders.

Heroin accounted for 12.9 percent of the sentences for federal drug crimes in Southern Indiana during the federal government's 2015 fiscal year, up from 5 percent in 2014, according to a U.S. Sentencing Commission report. The report compiles data from every district court in the nation from Oct. 1, 2014 to Sept. 30, 2015.

The trend appears to have continued in 2016 with no immediate signs of slowing. It's yet another indicator of Indiana's emerging problem with opioid drugs, including both prescription painkillers and heroin.

"In terms of percentage of cases, we are going to see an increase in heroin cases," said Josh Minkler, United States District Attorney for Southern Indiana.

However, methamphetamine cases still overwhelmingly account for the greatest percentage of drug offense sentences in the U.S. District Court for the Southern District of Indiana, which covers 60 counties from Indianapolis to the Ohio River.

Methamphetamine offenses accounted for 51.4 percent of drug crime sentences in federal court for Southern Indiana in 2015, up from 42 percent of drug sentences in 2014. Marijuana accounted for 20.7 percent of federal drug sentences in 2015 compared to 16 percent in 2014.

Sentences for cocaine have dropped dramatically, from 28.6 percent of federal drug sentences in 2014 to just 4.3 percent in 2015.

Posted by Marcia Oddi on January 9, 2017 09:51 AM
Posted to Ind Fed D.Ct. Decisions

Ind. Gov't. - "Editorial: Ideology shouldn’t trump safety"

Updating this ILB post from Jan. 4th, which pointed out that "On Gov. Mike Pence’s first day in office, he signed an executive order creating a moratorium on state rules and regulations," the IBJ has a great editorial in its latest issue:

At nearly the last possible moment, outgoing Gov. Mike Pence reversed course and extended rules that dictate the minimum standards builders must use for insulation, heating and air, and lighting systems in commercial buildings and apartments.

That was the right decision.

But it wasn’t clear Vice President-elect Pence was going to make it.

Just a week earlier, a spokesman for the Indiana Department of Homeland Security said Pence planned to let the rules expire, an irresponsible move critics say would have let unscrupulous builders skimp on energy-related systems in a way that could have left unknowing buyers and tenants with ridiculously high utility bills and perhaps even unsafe conditions.

We don’t know exactly what Pence was thinking. We can presume his zeal for reducing government regulations was at play here. After all, Pence imposed a moratorium on all rule-making—with exceptions for health and safety regulations—when he took office four years ago.

But we don’t really know. His office declined to comment, referring questions instead to the Department of Homeland Security, which oversees the code. The spokesman there provided an unsatisfactory—and factually inaccurate—excuse that the code could not be renewed because two outside groups had requested changes.

Yes, those changes—if the agency decided to go along with them—could have meant a longer process for passing new standards. But it was clear then that the governor could extend the existing rules for one year while those changes were underway, which is exactly what he did on Dec. 28, three days before the energy code was to expire and to the relief of many conscientious builders, architects and developers in the construction industry.

But this was not some isolated incident caught just in time to correct.

A year ago, the Pence administration let expire the emergency rules that had been put in place after the deadly Indiana State Fair stage collapse in 2011, leaving the state vulnerable to another disaster.

One member of the State Fire Prevention and Building Safety Commission, which votes on the rule, told IBJ the Pence administration had eliminated key legal and administrative staff positions once in place to review and update codes. He called for the governor to provide the commission “with adequate staff so we can do our job.”

We’re not sure what’s scarier—that Pence would choose deregulation at the expense of Hoosiers’ safety or that he’s pared state agencies down so far that there isn’t the staff available to handle what are basic duties of government.

Posted by Marcia Oddi on January 9, 2017 09:39 AM
Posted to Indiana Government

Ind. Courts - "Is a law enforcement agency liable for off-duty officers?"

The case of Harrison County Sheriff's Department v. Leandra Ayers, which is being argued Tuesday before a panel of the Court of Appeals (see this morning's Upcoming Oral Arguments post) is the subject of a story today in the Indianapolis Star, reported by Madeline Buckley. It begins:

An Indiana sheriff's deputy in 2009 was arguing with his wife at his home, court documents say. She threatened to kill herself. He replied, "fine," and removed his personal gun from his belt and laid it on the bed. Then he left the room.

Moments later, John Britton, a deputy with the Harrison County Sheriff's Office, heard a shot. His wife, Christine, fell off the bed.

What's clear: Britton violated criminal law. A grand jury indicted him for assisting a suicide and he pleaded guilty to criminal recklessness.

What's not clear: Whether the Harrison County Sheriff's Office should be held responsible for Britton's actions.

In February, a jury decided it should. It awarded a $1.2 million verdict to Leandra Ayers, Christine Britton's daughter from a previous relationship. Now, the county is appealing the money judgment. The Indiana Appeals Court on Tuesday will hear oral arguments in the case.

It's a case that could have far-reaching implications for law enforcement agencies in Indiana, the attorneys for Harrison County argued in a brief. A central question: Is a law enforcement agency liable for the actions of sworn officers when they are off-duty?

Posted by Marcia Oddi on January 9, 2017 09:28 AM
Posted to Ind. Trial Ct. Decisions

Ind. Courts - "Mary Harper now longest-serving female state court judge"

Bob Kasarda reported this weekend in the NWI Times. The long story begins:

Porter Circuit Court Judge Mary Harper was in her final semester of law school when her grandfather was murdered while walking to church in South Bend.

Those believed responsible for the killing were released when witnesses refused to testify, she said.

"I thought that was so wrong," Harper said. "I decided to work in social justice."

She went on to become the county's first female deputy prosecutor, first female chief deputy prosecutor, first female county judge, first female superior court judge and first female circuit court judge. Now 32 years later, she has become the longest-serving female state court judge in Indiana's history.

"I've got a little grandfather on my shoulder," she said, who reminds her to "be fair, be just."

"I felt guided through my whole career," Harper said.

Harper, who believes women have it much easier these days in the area of law, is a graduate of the Valparaiso University School of Law, which she completed in an accelerated two and a half years.

The South Bend native decided to remain in Porter County and said she went to work in 1975 at the local prosecutor's office.

"It was the prosecutor's office or go work for a bank in South Bend," she said.

She worked her way up to the chief deputy post before leaving in 1981 to pursue a private legal practice where she found herself on the opposite side of the courtroom, defending those she had been seeking to lock up.

"It's a big switch," Harper said.

She took another big leap in 1984 by running against and defeating incumbent judge and fellow Republican Terry Johnston.

After winning a general election challenge against Democrat Thomas Webber, who later made it to the bench himself, Harper spent the next 12 years handling small claims and misdemeanor cases before running for her current circuit court seat that was left open by the retirement of Raymond Kickbush.

"When he was announcing, I was down filing (as a candidate) in Indianapolis," she said.

The leap to circuit court, which she has held on to through three additional elections, put more serious, felony-level cases before her. But what drew her to seek out the post was its role in running the county's juvenile system.

Posted by Marcia Oddi on January 9, 2017 09:17 AM
Posted to Indiana Courts

Ind. Decisions - Upcoming oral arguments this week and next

This week's oral arguments before the Supreme Court (week of 1/9/17):

Thursday, January 12

  • 9:00 AM - Kevin Charles Isom v. State of Indiana (45S00-1508-PD-00508) Isom’s murder convictions and death sentence were affirmed on direct appeal in Isom v. State, 31 N.E.3d 469 (Ind. 2015), reh’g denied. Subsequently, the Lake Superior Court denied Isom’s motion to file a non-compliant petition for post-conviction review, found Isom waived post-conviction review, and denied Isom’s motions to determine competency. In this direct appeal, Isom argues he should receive post-conviction review.

  • 9:45 AM - James Rogers v. State of Indiana (49A02-1508-CR-01033) Rogers was charged with crimes including Class A felony child molesting. During discovery, Rogers sought to compel the deposition testimony of an unlicensed social worker at a faith-based community center who had previously assisted the alleged victim. The Marion Superior Court denied Rogers’ motion to compel, finding the alleged victim’s communications with the social worker were privileged under Indiana Code section 25-23.6-6-1. On interlocutory appeal, the Court of Appeals reversed. Rogers v. State, 60 N.E.3d 256 (Ind. Ct. App. 2016), reh’g denied. The State has petitioned the Supreme Court to accept jurisdiction over the appeal.

    ILB: This was this was a July 6, 2016 COA opinion, holding "the counselor/client privilege of IC 25-23.6-6-1 does not include communications with unlicensed social workers."

  • 10:30 AM - D.B. and V.G. v. Indiana Department of Child Services (54S01-1612-JT-00630) The Montgomery Circuit Court entered a judgment terminating parental rights. The Court of Appeals affirmed, although it found the Department’s petitions were prematurely filed as to some of the children involved. D.B. v. Indiana Dep’t of Child Servs., 61 N.E.3d 364 (Ind. Ct. App. 2016), vacated. The Supreme Court has granted a petition to transfer the case and has assumed jurisdiction over the appeal.

    ILB: This was this was a Sept. 15, 2016 COA opinion.

Next week's oral arguments before the Supreme Court (week of 1/16/17):

Thursday, January 19

  • 9:00 AM - Royce Love v. State of Indiana (71S03-1612-CR-00641) After a jury trial, Love was convicted in St. Joseph Superior Court of resisting law enforcement and mistreatment of a law enforcement animal. On appeal, a majority of the Court of Appeals reversed, concluding video evidence indisputably contradicted police officer testimony about the events underlying the convictions. Love v. State, 61 N.E.3d 290 (Ind. Ct. App. 2016), vacated. The Supreme Court has granted a petition to transfer the case and has assumed jurisdiction over the appeal.

    ILB: This was a 2-1, Sept. 8, 2016 COA opinion (ILB summary here, 8th case). The ILB posted several news stories at the time, under the heading "Appeals court says video 'indisputably contradicts' South Bend police testimony."

  • 9:45 AM - Fresenius USA Marketing v. Indiana Department of State Revenue (49T10-1008-TA-00045)The Indiana State Department of Revenue denied Fresenius’s claim for a refund of sales tax paid on medical supplies it sold to dialysis clinics, finding that the relevant exemption applied only to items sold directly to patients. The Tax Court disagreed, and granted summary judgment to Fresenius. Fresenius USA Marketing, Inc. v. Indiana Dept. of State Revenue, 56 N.E.3d 734 (Ind. Tax Court, July 15, 2016), trans. pending. The Indiana Department of State Revenue has petitioned the Supreme Court to accept jurisdiction over the appeal.

    ILB: This was this was a July 18, 2016 Tax Court opinion, which "present[ed] one dispositive issue: whether the Department is bound by its published ruling interpreting the exemption provided by Indiana Code § 6-2.5-5-18(a)." The ruling concluded:

    Even though the 1998 Ruling was not issued to Fresenius, it was entitled to rely on it because it demonstrated factual similarity. Because it did not rebut Fresenius’s showing of similarity, the Department is bound by its interpretation in its 1998 Ruling. Consequently, while the Department is not entitled to summary judgment on this basis, Fresenius is.

Webcasts of Supreme Court oral arguments are available here.


This week's oral arguments before the Court of Appeals (week of 1/9/17):

Tuesday, January 10
  • 11:00 AM - Harrison County Sheriff's Department v. Leandra Ayers (Case# not provided on COA calendar) Harrison County Sheriff’s Deputy John Britton was at home with his wife, Christine. They started to argue over John’s lack of tidiness, and Christine began threatening to kill herself. At one point, she reached for John’s off duty weapon that he was wearing. As they continued to argue, John said, “fine,” took his gun off his belt, and threw it on the bed. He walked to the front door but heard a gunshot—Christine had committed suicide with his gun. This case stems from that incident: Christine’s estate won a $1.2 million verdict against John’s employer, the Harrison County Sheriff’s Department, under a theory of respondeat superior. The Sheriff’s Department now appeals, arguing 1) respondeat superior does not apply because John was off-duty; 2) alternatively, John had immunity under the Indiana Tort Claims Act for any alleged negligence in enforcing the law; and 3) Christine was, as a matter of law, contributorily negligent in committing suicide, and her estate should be barred from recovering. The Scheduled Panel Members are: Judges Baker, Mathias, and Pyle. [Where: Court of Appeals Courtroom (WEBCAST)]
Thurssday, January 12
  • 1:00 PM - Mark Allen Price, Jr. v. State of Indiana (49A02-1607-CR-01665) Mark Price challenges his conviction for unlawful possession of a firearm by a serious violent felon. He argues that the State failed to present sufficient evidence to prove that he actually possessed a firearm. In the alternative, he argues that the trial judge committed fundamental error by allowing the State to present evidence that Price remained silent after being arrested. The Scheduled Panel Members are: Chief Judge Vaidik, Judges Bradford and Altice. [Where: Ben Davis High School, 1200 N. Girls School Rd., Indianapolis, IN]
Friday, January 13
  • 10:00 AM - Flat Rock Wind, LLC v. Rush County Area Board of Zoning Appeals, et al. (70A01-1606-PL-01382) This case arises from Flat Rock Wind, LLC’s effort to develop a 180-megawatt commercial Wind Energy Conversion System (WECS) located on over 29,000 acres of land in Rush and Henry Counties. Flat Rock Wind, LLC appeals the trial court’s decision, affirming the Rush County Area Board of Zoning Appeals’ (BZA) zoning decision. While the BZA nominally granted Flat Rock’s amended zoning application to construct a WECS, the BZA also required Flat Rock to site each industrial wind turbine at least 2,300 feet from a non-participating owner’s property line. Flat Rock now presents this court with 2 issues: 1.) Whether the trial court erred in affirming the BZA’s zoning decision approving Flat Rock’s amended application for a special exception to construct a WECS, subject to a setback requirement that was both greater and measured differently than the zoning ordinance’s minimum setback requirement; and 2.) Whether the trial court abused its discretion in permitting a group of landowners to intervene in these judicial review proceedings pursuant to Indiana Trial Rule 24(A)(2). The Scheduled Panel Members are: Judges Riley, Crone, and Altice. [Where: Court of Appeals Courtroom (WEBCAST)]

Next week's oral arguments before the Court of Appeals (week of 1/16/17):

Thursday, January 16
  • 10:00 AM - ABC Radiology, P.C., et al. v. Cathy Gearhart (Case# not provided on COA calendar) Cathy Gearhart (Plaintiff) filed a complaint in Marion Superior Court against various defendants following the death of her husband, Kent Gearhart, from renal cancer. The defendants to Counts I and II (Defendants) jointly filed a motion requesting that the trial court sever Counts I and II from Count III and transfer venue of Counts I and II to Vanderburgh County. Plaintiffs responded that Marion County was a county of preferred venue because a necessary defendant to the action – the Indiana Patients Compensation Fund – is a governmental organization with its principal office located there. Plaintiffs argued also that all three counts were properly joined because they arise out of the same transaction or occurrence and have common questions of law and fact. Following a hearing, the trial court denied the motion. Defendants appeal, arguing that Plaintiff’s joinder of the underlying negligence actions with the declaratory judgment action was improper and deprived Defendants of their right to trial in a preferred venue county. The Scheduled Panel Members are: Judges Riley, Crone, and Altice. [Where: Court of Appeals Courtroom (WEBCAST)]
ONLY those Court of Appeals oral arguments presented in the Supreme or Court of Appeals Courtrooms generally will be accessible via videocast.

Past Court of Appeals oral arguments which have been webcast are accessible here.


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

Posted by Marcia Oddi on January 9, 2017 09:05 AM
Posted to Upcoming Oral Arguments

Friday, January 06, 2017

Ind. Decisions - Posner opinion, begins "A very unusual case, this"

In Reginald Hart v. Amazon.com, Incorporated (ND Ill.), a 4-page opinion, Judge Posner writes:

A very unusual case, this. The plaintiff, unrepresented by counsel (the district judge had recruited counsel initially, who, however, upon discovering that the suit was groundless, requested and was allowed to withdraw from the case, leaving the plaintiff to proceed pro se), has sued Amazon, claiming that it permitted third par‐ ties to advertise on its website six counterfeit copies of books called Vagabond Natural and Vagabond Spiritual that the plain‐ tiff had written and self‐published (that is, published himself rather than handed to a publisher). * * *

He claims to have been surprised and angered to discov‐ er that hard‐cover copies of both books were being adver‐ tised on Amazon by booksellers to whom he had not (he says) sent any copies of his books. He says he learned that a cousin of his had purchased a copy of each of his books ad‐ vertised (without his authorization) on Amazon. He has sued Amazon on a variety of grounds, but all amounting to alleging a theft of his intellectual property after Amazon re‐ fused his repeated requests to remove the advertisements for the books from Amazon’s website (though eventually, re‐ lenting, Amazon did remove them). * * *

Granted, there is counterfeiting of books (especially text‐ books), in which Amazon may be involved to the extent of advertising and selling such books, though without neces‐ sarily knowing they’re counterfeit. See, e.g., Eliza Green, “The Problem of Fake Books on Amazon,” May 9, 2012, http://elizagreenbooks.com/the‐problem‐of‐fake‐books‐on‐ amazon/ (visited Dec. 24, 2016, as was the next website cit‐ ed). But counterfeiting can’t be presumed. For example, “all of the apparent copycat books that Fortune found on Ama‐ zon were made through CreateSpace, which is a division of Amazon.” Mario Aguilar, “Amazon Is Overrun With a Plague of Bestseller Knockoffs,” April 16, 2012, http://gizmodo.com/5902283/amazon‐is‐overrun‐with‐a‐plag ue‐of‐fake‐books. Hart’s obscure self‐published titles are a far cry from the pirated bestsellers regularly found on Ama‐ zon, and his assertion that the Internet giant must have un‐ dertaken the cost of reproducing his hardcover books be‐ cause they were “not sourced” by him and lack his nail in‐ dentations (when neither do his self‐published books, if one may judge from the photos) doesn’t meet even a minimum standard of plausibility. The judgment of the district court dismissing his suit with prejudice is therefore AFFIRMED.

Posted by Marcia Oddi on January 6, 2017 01:29 PM
Posted to Ind. (7th Cir.) Decisions

Ind. Decisions - Court of Appeals issues 1 opinion(s) today (and 0 NFP memorandum decision(s))

For publication opinions today (1):

In Mario Deon Watkins v. State of Indiana, a 24-page, 2-1 opinion, Judge Brown writes:

Mario Deon Watkins appeals his convictions for two counts of possession of a controlled substance as class A misdemeanors, possession of cocaine as a level 6 felony, possession of marijuana as a class B misdemeanor, and maintaining a common nuisance as a level 6 felony. Watkins raises two issues, one of which we find dispositive and which we revise and restate as whether the court abused its discretion or erred in admitting evidence discovered as a result of a search. We reverse. * * *

Comparing the factors, we conclude that while there was a considerable degree of suspicion, the extent of law enforcement needs for a military-style assault was low and the degree of intrusion was unreasonably high. Under these specific circumstances and particularly in light of the use of a flash bang grenade in the same room as a nine-month old baby who was “very close” to where the flash bang was deployed, the State has not demonstrated that the police conduct was reasonable under the totality of the circumstances. We conclude that the search violated Watkins’s rights under Article 1, Section 11 of the Indiana Constitution and that the trial court erred in admitting the evidence discovered as a result of the search.

To the extent the State suggests that we adopt the inevitable discovery exception as a matter of Indiana constitutional law, we observe that under the Fourth Amendment, the inevitable discovery exception to the exclusionary rule “permits the introduction of evidence that eventually would have been located had there been no error, for [in] that instance ‘there is no nexus sufficient to provide a taint.’” However, the inevitable discovery exception has not been adopted as a matter of Indiana constitutional law. Ammons v. State, 770 N.E.2d 927, 935 (Ind. Ct. App. 2002), trans. denied. The Indiana Supreme Court has held that “our state constitution mandates that the evidence found as a result of [an unconstitutional] search be suppressed.” Despite the State’s request, we are not inclined to adopt the inevitable discovery rule as part of Indiana constitutional law in light of the Indiana Supreme Court’s firm language. [ILB: citations omitted]

For the foregoing reasons, we reverse Watkins’s convictions. * * *

Baker, J., concurs.
May, J., dissents with separate opinion. [that begins, at p. 22] Unlike my colleagues, I would hold the search of Watkins’ residence was reasonable under the totality of the circumstances. I therefore respectfully dissent.

NFP civil decisions today (0):

NFP criminal decisions today (0):

Posted by Marcia Oddi on January 6, 2017 01:16 PM
Posted to Ind. App.Ct. Decisions

Ind. Gov't. - Update on "Pence could leave state with no energy standards for buildings"

Updating this Dec. 22, 2016 ILB post quoting an IBJ story by Hayleigh Colombo, and then continuing with ILB remarks ("What is the Problem Here?") that concluded this was a "Sunset" statute issue that could be resolved ("Problems resulting from the overarching sunset statute have occurred in the post."), a story yesterday from the ILB staff is headed: "Pence extends minimum energy standards for buildings." Some quotes:

Gov. Mike Pence has signed an executive order extending the state’s energy code for one year, a move that ensures developers of commercial buildings and apartments meet minimum standards for insulation, heating and air, and lighting.

Pence signed the order on Dec. 28, just days before the code was to expire and a week after critics said failing to do so could let unscrupulous builders cheat tenants and others of basic protections against weather.

In his executive order, Pence said the expiration of the rule would cause “an emergency to exist and creates a danger to commercial structures since they will not have energy compliance rules in place.”

The story also reports that:
... the homeland security department is continuing to work on new outdoor event equipment rules that were prompted by the Indiana State Fair stage collapse in 2011, Erickson said.

Emergency rules put in place immediately after the incident, which killed seven people and injured dozens more, expired roughly a year ago, IBJ reported last month. [ILB post here and here] Those rules had established stricter design and construction requirements for outdoor event equipment such as stage rigging.

Posted by Marcia Oddi on January 6, 2017 10:37 AM
Posted to Indiana Government | Stage Collapse

Ind. Decisions - "Are college athletes the same as prisoners? These judges seem to think so"

"These judges" referred to in this Washington Post headline to a column by Sally Jenkins are on the 7th Circuit. The case is Berger v. NCAA, decided Dec. 5, 2016 (ILB summary here). A few quotes from the column:

The case is called Berger v. NCAA, and in it, some former track runners from Penn contended that athletes put in enough work at universities to be entitled to minimum wage under the Fair Labor Standards Act. It’s one of a raft of cases seeking pay for college athletes, and it wouldn’t stand out except for the obnoxious grounds on which it has been summarily dismissed by a three-judge panel for the U.S. Court of Appeals for the Seventh Circuit, the NCAA’s home court. The majority opinion reasoned that college athletes have no more right to ask whether they might be employees than inmates laboring in jails. A plea for a rehearing en banc was rejected by the Seventh Circuit Wednesday night.

Posted by Marcia Oddi on January 6, 2017 10:06 AM
Posted to Ind. (7th Cir.) Decisions

Ind. Gov't. - "Boone County donates $10,000 to fund amicus brief in pivotal tax court appeal"

Rod Rose of the Lebanon Reporter writes this morning in a lengthy story that begins:

Funds are being sought from the state's cities, towns and counties to help pay for an appeal of the Indiana Tax Court’s September decision that slashed the tax value of a Howard County Kohls store.

The Indiana Court of Appeals upheld the tax court’s decision. Howard County is asking the Indiana Supreme Court to hear an appeal, county attorney Bob Clutter said.

At issue is whether property tax values on a “big box” store — any building larger than 500,000 square feet — can be based on the value used for a vacant store — a so-called “dark box.”

Officials at the local level fear that should Kohls’ argument remain unchallenged, it could have a devastating impact on the budgets of cities, towns and counties.

Tuesday, the Boone County Commissioners authorized a $10,000 contribution for an amicus brief to be filed if the Supreme Court agrees to take the case. That brief would be written by Accelerating Indiana Municipalities (formerly the Indiana Association of Cities and Towns) and the Indiana Municipal Lawyers Association. An amicus is an impartial advisor to a court case.

ILB: This is the latest in a long list of posts on the big box/dark box issue. This post, from Dec. 20, 2016, quoted the Bloomington Herald-Times story that:
Monroe County Assessor Judy Sharp said she plans to take the North College Avenue CVS store appeal to the Indiana Supreme Court after the Indiana Tax Court last month affirmed a lower tax board’s ruling that would lower the property assessments for multiple years at that store. * * *

Sharp said the hope is that the state Supreme Court will fast-track hearing the cases from Monroe and Howard counties, because what is decided at that level is likely to affect not only the county named in each case, but others as well.

Posted by Marcia Oddi on January 6, 2017 09:44 AM
Posted to Indiana Courts | Indiana Government

Thursday, January 05, 2017

Law - Ohio Gov. Kasich signs bill limiting use of civil forfeiture

The ILB has had a long list of entries on civil forfeiture at the state and federal level, including most recently, on Dec. 29th, "Jeff Sessions and Civil Forfeiture."

Today, via a news release from the Heartland Institute, this news and quote for attribution from Jesse Hathaway, their Research Fellow, Budget & Tax Policy:

Ohio Gov. John Kasich (R) yesterday signed into law House Bill 347, which would require law enforcement agencies to seek a criminal conviction before a person’s property is forfeited over to the government. The legislature had passed the measure, with little opposition, on December 9.

“With Gov. John Kasich’s (R) signing of House Bill 347, Ohio joins a growing number of states – including California, Nebraska, New Mexico, and Wyoming – in protecting taxpayers’ due-process and property rights.

“Reducing perverse economic incentives, the new law prohibits local governments from using the U.S. Department of Justice’s ‘equitable sharing’ program as a loophole to bypass constitutional protections on property rights in most cases, while still allowing government law enforcement agents to perform their duties and protect people.

“Government law enforcement should not be financially motivated, but motivated by a desire to protect and serve taxpayers. Civil asset forfeiture creates an economic incentive to engage in the forfeiture process, perverting the law. This measure reduces that incentive to do wrong and will help protect against the possibility of abuse.

“This is a step towards removing the profitability of violating an individual’s inherent property rights, and lawmakers in other states should look to Ohio for ideas on how to solve the civil asset forfeiture problem in their communities.”

And an earlier story from OhioWatchdog.org:
A bill designed to curb civil forfeiture practices in Ohio is set to pass next week despite opposition from the state’s law enforcement community.

The U.S. Justice Action Network, a coalition of conservative and progressive organizations, and fellow proponents of the bill appear to be closing in on victory after an eighteen-month battle for reform.

The bill, which passed the state House in May, is expected to see a Senate vote next week. Originally the bill would have eliminated the practice of civil forfeiture entirely. Opposition from prosecutors and police chiefs pushed lawmakers to amend the measure to allow for the seizure of assets valued at more than $25,000.

Posted by Marcia Oddi on January 5, 2017 12:02 PM
Posted to General Law Related