Thursday, September 29, 2016

Ind. Decisions - Tax Court issues one today

In SBP Petroleum, Inc. v. Indiana Department of State Revenue, a 6-page opinion, Judge Wentworth writes:

The Indiana Department of State Revenue has requested that the Court dismiss 2SBP Petroleum, Inc.’s case for failing to diligently prosecute the matter. In the alternative, the Department asks the Court to compel SBP Petroleum to respond to its discovery requests. The Court finds that this case should be dismissed.

Posted by Marcia Oddi on September 29, 2016 04:51 PM
Posted to Ind. Tax Ct. Decisions

Ind. Courts - "Ceremony Today to Name the Sarah Evans Barker Courtroom"

The ceremony is today at 4:00 PM. Here is the news release, including a photo of the gorgeous courtroom:

Judge Barker is only the third judge in the 111 year history of the courthouse to occupy what was formerly known as Courtroom 216 on a full-time basis. In September 1905, the travelling United States Circuit Court for the District of Indiana originally and sparingly used the courtroom, until the abolition of the circuit courts by Congress in 1911. From 1911 until 1925, the courtroom sat vacant, as the sole judge who served the U.S. District Court for the District of Indiana occupied the companion courtroom down the hallway. That courtroom is named in honor of the late Judge William E. Steckler.

In 1925, the District of Indiana received authorization for a second judgeship, which position was filled by Judge Thomas W. Slick, who occupied Courtroom 216. That arrangement lasted only three years, due to Congress’s decision in 1928 to divide the District of Indiana into separate Northern and Southern Districts. The new U.S. District Court for the Southern District of Indiana was authorized a single judgeship, and that judge, Robert C. Baltzell, continued to occupy the Steckler Courtroom. Judge Slick moved to the Northern District of Indiana, leaving Courtroom 216 vacant once more. The courtroom remained empty until a new judgeship was created 1954, which was filled by the appointment of Cale J. Holder. Judge Holder's term extended over nearly 30 years, until his death in 1983.

In March of 1984, President Ronald Reagan, with the support of then-United States Senators from Indiana Richard G. Lugar and Dan Quayle, appointed Judge Barker to the bench to fill the vacancy created by Judge Holder’s death. Judge Barker became the first woman appointed as a federal judge in Indiana and immediately took up occupancy of the courtroom the now and forevermore bears her name.

Posted by Marcia Oddi on September 29, 2016 03:55 PM
Posted to Indiana Courts

Ind. Courts - "Lake Circuit Court judge steps down Oct. 15"

Bill Dolan reports in the NWI Times:

CROWN POINT — Lake County Circuit Court Judge George Paras is resigning Oct. 15 after six years on the bench.

Paras, 68, who lost his re-election bid last spring to Highland attorney Marissa McDermott, said Thursday he is leaving office 40 days before his term expires to attend to personal matters he didn't wish to disclose. "I need the full time to do it. I don't want it to interfere with my job," Paras said early Thursday. * * *

The Indiana Supreme Court Wednesday published an order naming Senior Judge Thomas W. Webber Sr. to preside over the Circuit Court until voters fill the vacancy in the Nov. 8 general election with either McDermott, the Democratic candidate, or Douglas M. Grimes, of Gary, the Republican.

The winner is set to take office Jan. 1, 2017. Webber temporarily filled vacancies in the Lake Juvenile Court in 2013 and Lake Superior Court Civil Division in 2014.

The race for circuit court dominated the political landscape last spring.

Factions of the Democratic party had to choose between Paras, who had the support of Sheriff John Buncich, the county's party chairman, or McDermott, the wife of Hammond Mayor Thomas McDermott Jr. The mayor said it was a struggle between the party's younger and older wings. * * *

The circuit court, which presides over thousands of civil disputes ranging from constitutional matters and elections, to domestic law, is the only countywide judicial office that remains in partisan politics, separate from the Lake Superior Court, where merit selection of judges reigns.

Posted by Marcia Oddi on September 29, 2016 03:43 PM
Posted to Indiana Courts

Ind. Decisions - Supreme Court decides two today, including Justice Slaughter's first opinion, a dissent

In James F. Griffith v. State of Indiana, a 13-page, 5-0 opinion, Chief Justice Rush writes:

James Griffith was convicted of murder, robbery, and conspiracy to commit robbery, and sentenced to life imprisonment without possibility of parole (“LWOP”). On direct appeal, he claims (1) he was denied due process in discovery; (2) he was denied his right to a speedy trial; (3) the trial court abused its discretion in denying his requests to hire at public expense expert witnesses in DNA and blood spatter; (4) the trial court committed fundamental error by allowing witnesses to remain in the courtroom during opening statements; (5) the trial court abused its discretion by allowing the State’s entomologist to testify; (6) the trial court admitted evidence in violation of the Federal and Indiana Constitutions; and (7) insufficient evidence supported his convictions. Finding that Griffith’s claims lack merit, we affirm the trial court in all respects.
In Cynthia Bell v. State of Indiana, a 10-page, 3-2 opinion, Justice David writes:
Indiana Code § 35-38-2-2.3(a)(6) allows a trial court to order a defendant to pay restitution to a victim as a condition of probation, but the defendant’s ability to pay must be considered before the order to pay restitution is entered. In the present case, we find that the trial court abused its discretion because the evidence before the court was insufficient to conclude defendant had the ability to pay. As such, the ordered restitution is vacated. * * *

Under Ind. Code § 35-38-2-2.3(a)(6), a trial court may order restitution as a condition of probation, even if the defendant has been found indigent for other purposes. However, the trial court must fully assess a defendant’s actual ability to pay when ordering restitution. Because the trial court heard testimony as to Bell’s inability to pay, did not make further inquiry, and heard no rebutting evidence as to Bell’s ability to pay, the restitution order was an abuse of discretion. As such, we vacate the trial court’s order for restitution. Rush, C.J. and Rucker, J., concur.

Slaughter, J., concurs in part, dissents in part with separate opinion in which Massa, J., joins.

Slaughter, J., concurring in part, dissenting in part. I agree with the Court that the temporary trial judge abused his discretion in ordering Bell to pay $20 per week in restitution. The judge was obliged to ensure his restitution order was supported by record evidence that Bell could afford the payments he decreed. Yet he failed to do so. The restitution order cannot stand and must be vacated. According to the Court, that ends the matter. On this point, I respectfully dissent. In my view, we should remand to allow the trial court to enter a fully lawful sentence for Bell.

We do not know what sentence the trial court would have imposed had it concluded Bell could not afford restitution. Perhaps the result would have been the same—that the court still would have imposed the same probation, including the suspended sentence, no matter what. Or perhaps not. I would remand to allow the trial court to answer that question for us.

Posted by Marcia Oddi on September 29, 2016 03:23 PM
Posted to Ind. Sup.Ct. Decisions

Ind. Gov't. - "Kentucky, Indiana home to top 'super-polluters'"

James Bruggers has a lengthy, informative report today in the Louisville Courier Journal on air pollution in Indiana and Kentucky, including "a documentary produced by The Weather Channel and The Center for Public Integrity about the concentration of toxic air releases at a small number of facilities in the United States".

Posted by Marcia Oddi on September 29, 2016 01:16 PM
Posted to Indiana Government

Ind. Decisions - "Judge sentences former Lake Station mayor to 4 years in prison: 'Shame on you'"

Updating numberous earlier ILB posts on Former Lake Station Mayor Keith Soderquist (including a few headed "Former Lake Station Mayor Keith Soderquist asking for a new trial; claims the federal judge fell asleep twice"), the Gary Post-Tribune reports today in a very long story by Becky Jacobs that begins:

Federal judges had strong words for a former Lake Station mayor and his wife Wednesday, particularly about the money they used from the Lake Station food pantry.

"What were you thinking? Are you goofy or what?" Judge James Moody asked in a raised voice to Keith Soderquist.

After a brief, silent pause, Moody asked Soderquist to answer him, and Soderquist replied, "no."

"You took full advantage of (the poor)," Moody said. "Shame on you."

In a full day of parties shuffling between courtrooms, medical documents and court transcripts, Keith and Deborah Soderquist were sentenced Wednesday in U.S. District Court in Hammond.

Keith Soderquist was ordered to spend four years in prison — 42 months for his crimes with his wife followed by 6 months for aiding his stepdaughter — while Deborah Soderquist was sentenced to two years in prison. The couple must also pay more than $26,000 in restitution to the city of Lake Station and to the IRS.

Last September, a jury found the couple guilty of using money from his campaign fund and the food pantry on dozens of gambling trips to Michigan.

Earlier this year, Keith Soderquist also pleaded guilty to helping his stepdaughter, Miranda Brakely — who was sentenced to six months of home detention — hide thousands of dollars she stole from the city when she worked there as a court clerk.

And this summer Soderquist admitted in court documents to recording and listening to thousands of phone calls city hall employees made since 2011, including a call made from a phone in the private chambers of a Lake Station City Court judge. Though he wasn't charged for the wiretapping, it factored into the sentencing, documents state.

Posted by Marcia Oddi on September 29, 2016 12:59 PM
Posted to Ind Fed D.Ct. Decisions

Ind. Decisions - Court of Appeals issues 1 opinion(s) today (and 9 NFP memorandum decision(s))

For publication opinions today (1):

In Jakob Robinson v. State of Indiana , a 7-page opinion, Judge Najam writes:

While a teacher and coach at McCutcheon High School in Tippecanoe County, Jakob Robinson engaged a student is numerous acts of sexual intercourse and deviant sexual conduct. After the student reported Robinson’s behavior to local authorities, the State ch arged Robinson with five counts of child seduction, each as a Level 5 felony. Robinson pleaded guilty to each of those counts and the trial court sentenced him to an aggregate term of eight years, with five years executed in the Department of Correction a nd three years suspended to probation. [2] On appeal, Robinson asserts that his sentence is inappropriate in light of the nature of his offenses and his character. We conclude that his sentence is not inappropriate. * * *

Robinson’ s reliance on his guilty plea, lack of criminal history, and, to a lesser degree, his community support better explain why he received the sentence he did instead of receiving a higher term. 1 Further , it was within the trial court’s discretion to consider the degree of harm endured by K.F. as well as Robinson’s inability to follow simple court instructions to stay away from his wife. Regardless, however , Robinson’s manipulation of K.F. and his abuse of his position of trust over her plainly reflect his poor character. The sentence the trial court imposed after taking all of those facts into account is not inappropriate. Thus, we affirm.

NFP civil decisions today (5):

Northwest Oral Surgeons, P.C. v. Joseph Lovasko, D.D.S. (mem. dec.) - "The trial court did not err in its construction of the look-back provision in the Severance Agreement. The trial court did not err when it reached a severance benef it amount other than that proffered by Northwest."

D.G. v. R.G. (mem. dec.)

Sandra Winslow v. Fred Winslow (mem. dec.)

In the Matter of L.S. (Minor Child), a Child in Need of Services, D.S. v. Ind. Dept. of Child Services (mem. dec.)

In re the Termination of the Parent-Child Relationship of H.H.:, A.S. (Mother) and J.H. (Father) v. The Ind. Dept. of Child Services (mem. dec.)

NFP criminal decisions today (4):

Ethan Gee v. State of Indiana (mem. dec.)

Scott L. Wilkins v. State of Indiana (mem. dec.)

Vakea Johnson v. State of Indiana (mem. dec.)

Ian Defenderfer v. State of Indiana (mem. dec.)

Posted by Marcia Oddi on September 29, 2016 11:09 AM
Posted to Ind. App.Ct. Decisions

Ind. Decisions - "Dark Boxes are Comparable Properties in Indiana "

Howard County Assessor v. Kohl's Indiana LP (ILB summary here), the first of the big box/dark box appeals to be decided by the Indiana Tax Court, is the subject of an article from Bingham Greenebaum Doll LLP. Some quotes:

The primary issue on appeal was whether the use of “dark boxes” as comparable properties was appropriate when appraising the market value-in-use of the property. Dark boxes are big box retail stores (exceeding 50,000 square feet) that are vacant at the time of sale. Kohl’s argued these were appropriate comparable properties because their sales prices reflected the value of the real property absent the value of the business or other fixtures, each of the properties was sold for continued retail use, and properties similar to these dark boxes were regularly sold in the market. The assessor argued that dark boxes were not comparable properties because “dark boxes do not have any utility to either the original owner or another owner/user in the same retail tier,” and that the store was a special purpose property based on the modifications made by Kohl’s. The assessor’s argument hinged on the idea that a “second-generation user” would have a significant expense in transforming the dark box into a usable space.

The Tax Court rejected the Assessor’s argument and plea to overturn past cases finding that sales of properties to second generation retailers are comparable under the market value-in-use standard. [citations omitted] The Tax Court upheld that use of dark boxes are permissible as comparable properties for the Indiana market value-in-use valuation process.

Posted by Marcia Oddi on September 29, 2016 10:36 AM
Posted to Ind. Tax Ct. Decisions

Ind. Gov't. - "Change to Indiana voting law worries major parties"

Maureen Hayden of CNHI reports today in the Terre Haute Trib-Star:

light changes in election rules are causing consternation among party leaders who fear loyal voters will be confused when casting ballots this fall.

A new law says straight-party ballots – cast by 1.5 million Hoosiers in the last two elections – will no longer count in partisan races in which more than one candidate can be chosen. That affects at-large races common at the local level.

Though seemingly minor, the change is a huge deal for local party leaders, who say it will confound voters.

They also fear the erosion of a practice, dating to the 19th century, of voting for a slate of one party’s candidates with a single punch.

Indiana is one of only eight states that still offer the option of straight-party voting. Alabama, Iowa, Kentucky, Oklahoma, Pennsylvania, South Carolina and Texas are the others.

Some lawmakers want to jettison the choice altogether.

In practical terms, party loyalists this fall can still punch once to vote for president, governor, U.S. Senate and some other state races. But they’ll have to manually select candidates running at-large for county council seats.

In the next election, it will affect at-large city council races, as well. * * *

But Rush County GOP chairman Michael Dora is among those who fear confusion -- despite election officials’ best efforts to educate voters.

“We’re going to have a lot of voters, especially older ones, who just won’t know,” he said.

In Dora’s county, for example, three Republican candidates are running for those at-large seats this year and no Democrats. But there is also a well-known candidate, Don Jarman, running as an independent.

Jarman said he likes the fact that traditionally partisan voters will now have to look at his name on the ballot as they are forced to pick among the at-large candidates.

“The first time you vote for an independent, it’s hard,” he said. “But it gets easier the next time, and I think that’s what some party leaders are worried about.”

The law changing the straight-party choice was authored by Republican Sens. Greg Walker and Randy Head, who said it would help improve murky election protocols.

ILB: Screenshots of sample ballots might help explain this ...

Posted by Marcia Oddi on September 29, 2016 10:27 AM
Posted to Indiana Government

Ind. Courts - "Attorney asks judge to order BMV to pay up to $144 million" to Hoosiers

Updating yesterday's post, Madeline Buckley reports today in the Indianapolis Star on yesterday's trial. Some quotes [ILB emphasis added]:

$32 million or $144 million?

The Indiana Bureau of Motor Vehicles and attorneys launching a class-action lawsuit against the agency are more than $100 million apart on what they say the BMV owes its customers for years of inflated fees.

With millions of dollars at stake, attorneys on Wednesday presented Marion Superior Court Judge John Hanley with two opposing views of how much the agency must pay back after it overcharged residents in fees for titles and registrations.

After the one-day bench trial, Hanley asked for an extension to decide whether the BMV owes state residents more than the $32 million it is in the process of refunding. This is the second class-action suit regarding overcharging. In 2013, the BMV settled a lawsuit for $30 million that focused on fees for driver's licenses.

Attorney Irwin B. Levin argued that the BMV should refund overcharges going back 10 years and pay interest. In total, he calculated, the BMV should refund its customers $144 million. However, he presented an array of scenarios in which the judge could take into account undercharges and pre-existing refunds, with options to issue a ruling that dips as low as $76 million.

But from the BMV's point of view, such a ruling benefits only the attorneys. Carl Hayes, attorney for the BMV, argued that the lawsuit harms taxpayers and lines the pockets of the attorneys representing the plaintiffs.

Hayes said the BMV has calculated only $32 million in overcharges. He asked the judge to dismiss the lawsuit, arguing that the BMV is already in the process of making the refund. Otherwise, he said, the lawyers take home millions in attorney fees while each customer is refunded a small amount of money.

"This kind of lawsuit is bad for Hoosiers, bad for taxpayers," Hayes said, also arguing that the statute of limitations does not allow plaintiffs to seek refunds going back 10 years.

Levin, though, countered that without a looming lawsuit, the BMV would not have begun issuing refunds. He argued that the agency started paying the money back in an attempt to reduce the impact of the suit.

Posted by Marcia Oddi on September 29, 2016 10:12 AM
Posted to Indiana Courts | Indiana Government

Ind. Law - "New tool for Indiana State Police to scan drugs for chemical makeup at rapid speed"

A brief story this morning on WAVE3, by Jess Raatz, caught the ILB's eye. Some quotes:

A new device is in the hands of Indiana State Police as the war on drugs rages on.

That laser device can tell troopers within seconds what drugs they are dealing with on traffic stops and drugs busts.

"Welcome to the future of drug recognition, this is a big deal," explains Sgt. Phillip Hensley.

Hensley says the device is called Tru Narc, a $21,000 device which uses a laser to detect different drugs.

"Right now, it recognizes 370 different types of drugs. This will analyze and recognize chemicals in a few minutes."

Indiana State Police purchased five of the laser devices for Indiana with federal grant money, with the idea to get more by the end of the year.

"Now if we pull over a car and find a white powder in a plastic baggie, I don't have to send it to a lab and wait several weeks to get the results. We can hold it up to the laser, we never have to touch it. Within a minute, we will have done what would have taken a lab seven weeks to do."

Posted by Marcia Oddi on September 29, 2016 10:06 AM
Posted to Indiana Law

Wednesday, September 28, 2016

Ind. Decisions - Court of Appeals issues 3 opinion(s) today (and 11 NFP memorandum decision(s))

For publication opinions today (3):

In Larry Myers and Loa Myers v. Bremen Casting, Inc., and Mastic Home Exteriors, Inc., a 21-page opinion, Judge Robb writes:

Larry Myers spent the majority of his career working as an electrician in primarily industrial and commercial spaces, and during this time, Larry was exposed to asbestos. In February 2014, doctors diagnosed Larry with mesothelioma. Thereafter, Larry and his wife, Loa, filed a complaint alleging negligence against numerous product manufacturers and premises owners, including Bremen Casting, Inc. (“Bremen”) and Mastic Home Exteriors, Inc. (“Mastic”) (collectively, the “Defendants”). Specifically, the Myerses allege the Defendants are (1) vicariously liable for the acts of the employees of their independent contractors under the non-delegable duty doctrine, (2) vicariously liable for the acts of their own employees under the doctrine of respondeat superior, and (3) liable as premises owners. The Defendants each moved for summary judgment, and the trial court partially granted each motion. On the motion of all parties, the trial court’s orders were certified for interlocutory appeal and this court accepted jurisdiction and consolidated the appeals under a single cause number, designating the Myerses as Appellants/Cross-Appellees and the Defendants as Appellees/Cross-Appellants.

On appeal, the Myerses argue the trial court erred in granting summary judgment in favor of the Defendants on the Myerses’ vicarious liability claim under the non-delegable duty doctrine and premises liability claim; on crossappeal, the Defendants argue the trial court erred in denying their motions for summary judgment on the Myerses’ respondeat superior claim. Therefore, we consolidate and restate the issues before us as whether the trial court erred in granting in part and denying in part the Defendants’ motions for summary judgment. We conclude: (1) the trial court erred in granting the Defendants summary judgment on the Myerses’ vicarious liability claim pertaining to the negligence of independent contractors, (2) the trial court did not err in denying the Defendants summary judgment on the Myerses’ respondeat superior claim, and (3) the trial court erred in granting the Defendants summary judgment on the Myerses’ premises liability claim. We therefore affirm in part, reverse in part and remand for further proceedings on the Myerses’ claims. * * *

Indiana’s summary judgment standard carries with it a heightened burden for the moving party, and in negligence cases, summary judgment is rarely appropriate. As the moving party, the Defendants were required to designate evidence sufficient to negate the Myerses’ claims. The Defendants did not meet this burden. We conclude there is a genuine issue of material fact as to whether the Defendants can be held liable for the negligent acts of their independent contractors under one of the exceptions to the non-delegable duty doctrine, and the trial court erred in granting summary judgment to Defendants on this vicarious liability claim. In addition, the Defendants can be held liable for the negligent acts of their own employees, and the trial court did not err in denying the Defendants summary judgment on the Myerses’ respondeat superior claim. As to the premises liability claim, there is a genuine issue of material fact as to whether the Defendants can be liable for failure to maintain their premises in a reasonably safe condition, and the trial court erred in granting the Defendants summary judgment on that claim. In sum, Defendants are not entitled to summary judgment on any of the Myerses’ claims, and we accordingly affirm in part, reverse in part, and remand for further proceedings consistent with this opinion.

In John W. Thomas v. State of Indiana , a 15-page opinion, Judge Kirsch writes:
Following a jury trial, John W. Thomas (“Thomas”) was convicted of attempted murder, a Level 1 felony, attempted aggravated battery as a Level 3 felony, attempted battery with a deadly weapon as a Level 5 felony, and criminal recklessness as a Level 6 felony. He appeals his conviction for attempted murder and raises the following restated issue: whether the trial court committed fundamental error when it instructed the jury that voluntary intoxication is not a defense to attempted murder. * * *

Thomas argues on appeal that, although a defendant’s voluntary act of becoming intoxicated satisfies the general intent to commit an offense, Indiana law treats attempted murder differently than other intent crimes, as it requires proof of specific intent to kill. Thomas relies on this “special treatment” given to attempted murder, arguing that “this uniqueness affects the constitutionality of Indiana Code section 35-41-2-5, the voluntary intoxication statute, as applied to attempted murder.” Appellant’s Br. at 8. His position is that “[w]hile our Legislature has defined voluntary intoxication as one means of establishing the general intent element of a criminal offense, it has not defined voluntary intoxication as a means of establishing specific intent for crimes such as attempted murder.” Id. at 18 (emphasis added). He contends, then, that the trial court’s Final Instruction No. 28, which prohibited the jury from considering evidence of intoxication when determining whether Thomas possessed an intent to kill Vinson, deprived him of a fair trial and constituted fundamental error such that his conviction for attempted murder should be reversed. * * *

Given that the Indiana legislature has not expressly identified attempted murder as an exception to the law negating voluntary intoxication as a defense, and our Supreme Court has not expressed an indication that any such exception exists, we decline Thomas’s invitation to create one. Final Instruction No. 28 was a correct statement of the law, and Thomas has not established that the trial court committed fundamental error when it instructed the jury. Affirmed.

In Susan E. Sturdivant v. State of Indiana , a 15-page opinion, Chief Judge Vaidik writes:
Charged with possession of methamphetamine and other offenses, Susan Sturdivant told the trial court—at multiple pretrial hearings over the course of fourteen months—that she wanted to waive her right to counsel and represent herself. The court allowed her to do so, and a jury convicted her on all charges. Now represented by an attorney, Sturdivant claims that she is mentally ill and that the trial court should have denied her request for self-representation under Indiana v. Edwards, 554 U.S. 164 (2008), which recognized the authority of trial courts to insist upon representation by counsel for those defendants who “suffer from severe mental illness to the point where they are not competent to conduct trial proceedings by themselves.” Because the trial court was in the best position to judge Sturdivant’s competency and there is no evidence that Sturdivant was suffering from “severe mental illness,” we affirm the trial court’s decision to allow her to conduct her own defense. * * *

Here, the trial court had numerous opportunities to converse with and observe Sturdivant during more than a year of pretrial hearings. Sturdivant does not direct us to any facts that the trial court knew or could have discovered that would have supported a finding of severe mental illness. Therefore, we cannot say that the trial court’s decision to allow Sturdivant to represent herself was clearly erroneous.

NFP civil decisions today (1):

In re Paternity of Jerry Thomas Leber, Jerry Dillon v. State of Indiana and Laurie Leber (mem. dec.)

NFP criminal decisions today (10):

Leon C. Sieg v. State of Indiana (mem. dec.)

Albert Boyd v. State of Indiana (mem. dec.)

Kevin L. Nicholson v. State of Indiana (mem. dec.)

Kevin Lee Troxtle v. State of Indiana (mem. dec.)

Anthony E. Jeffares v. State of Indiana (mem. dec.)

Michael Pugh v. State of Indiana (mem. dec.)

Rodney Bradford v. State of Indiana (mem. dec.)

Taiwan Lundy v. State of Indiana (mem. dec.)

Rodney Lloyd v. State of Indiana (mem. dec.)

Brent Kraay v. State of Indiana (mem. dec.)

Posted by Marcia Oddi on September 28, 2016 12:49 PM
Posted to Ind. App.Ct. Decisions

Ind. Courts - "Trial today will untangle whether BMV owes more money"

Madeline Buckley of the Indianapolis Star reports this morning in a story that begins:

Almost three years after the Bureau of Motor Vehicles settled a class-action lawsuit for $30 million, the agency could be on the hook for more money as it goes to trial in a second lawsuit regarding inflated driving fees for Indiana residents.

The class-action lawsuit alleges that the BMV overcharged Hoosiers in its fees for a slew of licenses and titles offered by the agency, such as motor vehicle registrations, semitrailer registrations and personalized license plates. The previous class-action lawsuit solely dealt with fees associated with driver's licenses.

Marion Superior Court Judge John Hanley will hear the case Wednesday in what is expected to be a one-day bench trial.

The biggest contention of the lawsuit is how much money the BMV owes to Indiana drivers. Attorneys for the plaintiffs are arguing that the BMV overcharged residents by tens of millions of dollars.

The BMV, though, has countered that the amount is not that high, and that the agency actually undercharged customers in some cases.

The trial marks another step in the yearslong saga of problems for the BMV regarding overcharging drivers.

The most recent ILB post on this lawsuit was September 15th.

Posted by Marcia Oddi on September 28, 2016 10:29 AM
Posted to Indiana Courts | Indiana Government

Ind. Gov't. - More on: Legislative committee to look at administrative adjudiciation

Updating this ILB post from Sept. 20, the Interim Study Committee on Corrections and Criminal Code will hold its second meeting of this interim today at 1:30 PM in Rm. 431 of the Statehouse.

The agenda indicates that the meeting will have further discussion of administrative law courts. First on the agenda, however, is use of global positioning devices in notification in domestic violence cases.

You may watch the meeting live here, at 1:30.

You may watch the archived video of last week's meeting here.

Posted by Marcia Oddi on September 28, 2016 10:10 AM
Posted to Indiana Government

Ind. Courts - SCOTUS Justice Sherman Minton featured in Indiana Bicentennial story

Andrea Neal, who is authoring a 100 installment bicentennial series, here in the Crawfordsville Journal Review, writes today on Justice Sherman Minton, who provided one of the four votes needed for the SCOTUS to grant cert in the case of Brown v. Board of Education; the case was later decided unanimously. From today's story:

According to Linda C. Gugin, co-author of “Sherman Minton: New Deal Senator, Cold War Justice,” Minton’s position in Brown “was very consistent with his progressive views on civil rights.”

Minton expressed discomfort with racial discrimination in his highly regarded 1953 opinion in Barrows v. Jackson. The case involved a covenant in a deed, which barred the sale of a residence to a non-white. As stated by Minton: “The question we now have is: can such a restrictive covenant be enforced at law by a suit for damages against a co-covenanter who allegedly broke the covenant?” Minton’s answer was a resounding “no.”

In the Brown case a year later, Minton played a key role in encouraging a unanimous court. He later called it “the most important decision of the century because of its impact on our whole way of life.”

Born in Georgetown in 1890, Minton attended New Albany High School and earned a law degree from Indiana University in 1915. He was elected as a Democrat to the U.S. Senate, serving from 1934 to 1941, and was a strong supporter of President Roosevelt, including Roosevelt’s plan to pack the Supreme Court by adding justices who would support New Deal legislation. Minton lost his bid for re-election.

His friend and former Senate colleague Harry Truman appointed him to the Supreme Court in 1949, where he served until 1956 when he retired due to steadily worsening anemia. He returned to New Albany, served occasionally as a judge on lower federal courts and gave speeches and college lectures. Minton died in 1965. He was the last member of Congress to be appointed to the Supreme Court.

The article also notes:
Minton is often referred to as Indiana’s only Supreme Court Justice, but that is not the case. Willis Van Devanter, who served on the court from 1911 until 1937, was born and raised in Marion.

Posted by Marcia Oddi on September 28, 2016 09:39 AM
Posted to Indiana Courts

Courts - "Pro bono bill veto was a shock" - California governor vetos new requirement imposed on law students

Some quotes from a lengthy commentary that Cindy Thomas Archer, associate dean for Clinical Programs and Experiential Learning at Loyola Law School, Los Angeles, wrote September 16th in the Daily Journal [ILB emphasis]:

On Aug. 29, Gov. Jerry Brown vetoed Senate Bill 1257, which would have required those seeking admission to the California State Bar to complete 50 hours of free legal services for those who could not otherwise afford to pay a lawyer for her services.

I was shocked, as were most of the lawyers I knew, by Brown's veto because for years there have been signs that such a requirement seemed inevitable.

Let's go back a few years. In 2012, the State Bar Board of Trustees approved the appointment of the Task Force on Admissions Regulation Reform. For almost four years, TFARR studied proposed competency training requirements for admittees to the California Bar. The seemingly least controversial of its proposals was the requirement that those seeking admission complete 50 pro bono service hours. I spoke with law school public interest and pro bono project directors across the state and, while other aspects of the TFARR recommendations were hotly contested and debated, everyone thought this requirement would easily be instituted. * * *

Then State Sen. Marty Block entered the conversation with SB 1257, an answer to the access to justice gap for the masses who cannot afford a lawyer. A no-brainer, right?

Despite an undisputed gap in access to justice, despite the fact that increasingly attorneys are graduating from schools that instilled the importance of public service, and despite the fact legislators and a State Bar Task Force support a pro bono requirement, Brown vetoed the legislation. Why? Brown has a reputation for compassion for the downtrodden, and he has himself acknowledged the significant access gap in the legal system. But Brown vetoed the bill reasoning that recent law graduates should not be burdened with providing free services when they are struggling with high debt and low employment.

He challenged the state to be more thoughtful about how to balance the need to provide access to legal services with the burden newly minted young lawyers carry. * * *

The governor's veto at least temporarily, ensures providing a prescribed number of service hours does not become another box to check for admission to the bar. It also does not, however, provide any answers to the widening access-to-justice gap. It will require the conversation to continue in even more creative and thoughtful ways. A legal education can be expensive. It is true there is an ever-widening gap for access to justice for some. Also, law is a business as well as a profession. What are the answers? Strict admissions regulations alone, probably not. Maybe technology. Maybe certified, non-lawyers practicing in limited areas. Maybe education reforms. Probably a combination of all of them grounded in the fact that the law is a profession pro bono publico.

Posted by Marcia Oddi on September 28, 2016 09:26 AM
Posted to Courts in general

Law - Example of a major universtiy president's contract

On August 27, the $$ Bloomington Herald-Times reporter Michael Reschke had a story about Indiana University President Michael McRobbie’s contract; the Herald-Times obtained a copy of the contract through a public record request. A few quotes from the long $$ story:

As public university president contracts go, Indiana University President Michael McRobbie’s is one of the most sophisticated.

“It would be at the very top of our rating system,” said James Finkelstein, professor emeritus of public policy at George Mason University. “It’s also among the most valuable in terms of total compensation.”

Here is a copy of the 11-page employment agreement that was obtained by the H-T.

Posted by Marcia Oddi on September 28, 2016 09:11 AM
Posted to General Law Related

Tuesday, September 27, 2016

Ind. Courts - Commercial courts and e-filing focus of Supreme Court symposium this afternoon

Updating this ILB post from Sept. 19th, the symposium on the 3-year commercial courts pilot project took place this afternoon and was well attended by corporate counsel and others.

The ILB has notes, which will appear later. For now, some highlights:

  • Commercial courts will benefit businesses by providing a higher level of predictability on the bench. "By having a relatively small number of judges and by making available our decisions, which we hope to be able to do early on, we think we will improve predictability."

  • "We can widen the number of cases that the appellate courts decide and provide more guidance and own appellate commercial cases. I hear lawyers say we don't have anything in this area, what do you do? I think others turn to other states and we'll turn to the court of appeals and supreme court in Indiana."

  • Commercial courts will provide a quicker resolution.
There are six pilot commercial courts, located around the state. The ILB has a long list of earlier posts on these courts.

Here is an ILB chart
of the 6 courts and the participating judges. The commercial court dockets are in addition to the participating judges' normal dockets.

On June 20th the ILB
posted that there appeared to be no way "to find, or follow, the commercial courts' dockets (or the list of cases docketed in any court) via mycase.IN.gov, or any other resource."

That is no longer the case. MyCase.in.gov now has a separate option for "commercial courts." A search run this afternoon by the ILB disclosed that currently 34 cases have filed in the commercial courts around the state.

A review shows, however, that of the 34 cases, 27 have been filed in Marion Superior Court, Civil Division 1. Of the remaining 7, 5 have been filed in Fort Wayne and 2 in Elkhart County.

Chief Justice Rush pointed out today: "Indiana has statewide venue, you may file your case, any sort of civil case, and any county that you wish, as long as the other side does not file a motion for preferred venue, then the case can remain where it was filed. So, any case that you have can be filed before any of the six."

Posted by Marcia Oddi on September 27, 2016 03:49 PM
Posted to Ind. Commercial Courts

Ind. Gov't. - "Indiana attorney general candidates give views on sentences, immigration, more"

Maureen Hayden, CNHI News Service, reports today in the Goshen News, reports on Indiana's attorney general race, in a question and answer format. Here is a sample:

Question: Does the state have a role in enforcing federal immigration laws?

Arredondo: There may be times when the attorney general must use his or her discretion whether or not to act. The state has limited resources to deal with immigration issues and those resources would dictate what role, if any the attorney general would perform.

Hill: I view my role as attorney general to defend freedom, protect families and to inspire solutions. The state absolutely has a role in making certain that its citizens are protected. It’s clear the federal government has dropped the ball on immigration and immigration enforcement. The question becomes, at the point where Indiana citizens are at risk, should the state step in? Indiana’s job is to keep its citizens safe, so there could come a time when the governor, legislators, the attorney general and other leaders in state would need to look at what would need to be done, legally and appropriately, to address those issues.

Posted by Marcia Oddi on September 27, 2016 11:56 AM
Posted to Indiana Government

Ind. Gov't. - "Work ethic: Lawmakers do too little to fix tarnished image"

Niki Kelly reported in the Sunday Fort Wayne Journal Gazette:

INDIANAPOLIS – Tucked in a 2015 legislative ethics reform bill was a provision creating the Office of Legislative Ethics.

John Robert “Bob” Rudolph was tapped to serve as the chief counsel, but after one full year, it is unclear what exactly he or the office does.

There are no public statistics kept on issues that are researched. No formal or informal opinions are issued or maintained, though verbal opinions appear to be released often. There is no transparency in terms of records, meetings or minutes.

“The relationship is one of being a counselor, so there is attorney-client privilege attached,” said George Angelone, head of the Legislative Services Agency.

Rudolph makes $119,000 but also has other duties, such as bill drafting. The ethics responsibilities were simply absorbed into the office.

One of Rudolph’s main ethics-related jobs is to put on an annual ethics seminar that legislators are required to attend. He also responds to questions from legislators about whether they have a conflict on a particular bill or issue. And he can answer questions on how to appropriately fill out the statement of economic interest.

“He has the role of a counselor – not an enforcer,” Angelone said.

“We are carrying out the legislative directive, and we do our best to provide the services the legislature needs,” he said.

Rudolph did not speak to the Journal Gazette.

Creation of the office was just one facet of a larger bill pushed by House Speaker Brian Bosma after an ethics scandal involving former member Eric Turner. He privately lobbied against a nursing home bill that would have financially hurt a business run by him and his family.

The measure required lawmakers to disclose more information about their personal financial interests and the lobbying activities of their family members. And it closed several loopholes that allowed state employees to take lucrative jobs with businesses they regulate or to whom they award contracts.

It became clear then that both the House and Senate had their own ethics rules – some of which were more stringent than others.

The story continues with details of the operations of the Senate ethics committee.

Also on Sunday, the Journal Gazette published a strong editorial headed "Work ethic: Lawmakers do too little to fix tarnished image." Some quotes:

For putting a positive spin on an embarrassing ethical mess, it’s tough to top the Indiana General Assembly. The House GOP caucus closed the 2015 session hailing a “historic step for Indiana ethics reform.”

But the ethics bill lawmakers approved looks to be little more than an effort to cover over and move on after a member’s brazen abuse of power.

As The Journal Gazette’s Niki Kelly reported Sunday, the newly established Office of Legislative Ethics is as opaque as the troublesome caucus proceedings that precipitated it: No formal or informal opinions issued or maintained. No public records, meetings or minutes.

What House Speaker Brian Bosma promised was much more. In announcing that Robert “Bob” Rudolph would serve as chief counsel for the office, Bosma said he knew that Rudolph’s work “will help bring more transparency and bolster the public’s trust in the legislative process.”

But a government office without clear purpose or well-defined operations does little to bolster public trust. With no real evidence of the office’s work, it’s tough to believe the ethical comportment of the General Assembly has changed since former Speaker Pro Tem P. Eric Turner privately lobbied lawmakers to kill a proposed ban on nursing home construction that would have hurt Mainstreet Property Group, his family’s business. * * *

Just this month a lawmaker unabashedly admitted he had “let it be known to any and every person that I worked with, whether that be lobbyists in the hallways, people in Legislative Services Agency, (or) people in the business community” that he was looking for a job. That’s precisely the self-interest and abuse of power that leads to troubling conflicts and bad legislation.

The vast majority of lawmakers remember their role as a public servant, but a sense of entitlement by only one member can harm the entire institution.

If legislative leaders truly want to raise the General Assembly in the public’s esteem, they’ll put more substance behind the Office of Legislative Ethics. Kentucky, which endured its own legislative scandal, has a good model to follow, continually reminding lawmakers what constitutes a conflict of interest and pointing out examples where they occur.

Posted by Marcia Oddi on September 27, 2016 11:20 AM
Posted to Indiana Government

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

For publication opinions today (1):

In Dale Sedam, Kim Sedam, and Bryan Norris, as co-personal representatives of the Estate of David C. Hamblin, deceased v. 2JR Pizza Enterprises, LLC doing business as Pizza Hut #013413, et al., a 13-page opinion, Judge Mathias writes:

David C. Hamblin (“Hamblin”) was killed in a car accident involving Ralph Bliton (“Bliton”) and Amanda Parker (“Parker”), who was employed as a Pizza Hut delivery driver. Dale Sedam, Kim Sedam, and Bryan Norris, the copersonal representatives of Hamblin’s Estate (collectively “the Estate”), filed a complaint against Parker and her employer, Pizza Hut, alleging that Parker, acting in the course and scope of her employment with Pizza Hut, negligently operated her vehicle and caused the accident that resulted in Hamblin’s death.

The Estate also alleged Pizza Hut negligently hired, trained, supervised, and retained Parker. Pizza Hut filed a motion for summary judgment on that claim, and the Jefferson Circuit Court granted partial summary judgment in Pizza Hut’s favor. The Estate appeals and argues that the trial court erred when it concluded that the Estate could only proceed with its negligence claim against Pizza Hut under a theory of respondeat superior in light of Pizza Hut’s admission that Parker was acting with the scope of her employment.

Concluding that an employer’s admission that its employee committed the alleged negligent act within the course and scope of her employment does not preclude an action for negligent hiring, training, supervision, and retention, we reverse and remand for proceedings consistent with this opinion. * * *

The issue at the heart of this appeal is whether a plaintiff may establish an employer’s liability proceeding on both the theory of negligent hiring and the theory of respondeat superior where the employer has admitted that the employee was acting within the course and scope of his or her employment. To support their respective arguments, the Estate cites to our supreme court’s opinion in Broadstreet v. Hall, 168 Ind. 192, 80 N.E. 145 (1907), and Pizza Hut directs our attention to this court’s opinion in Tindall v. Enderle, 162 Ind. App. 524, 320 N.E.2d 764 (1974). * * *

As we noted above, over a century ago, the Broadstreet court held that allowing a plaintiff to pursue both theories of recovery was proper. Because negligent hiring, retention, or supervision are separate torts that are not derivative of the employee’s negligence, an employer’s admission that the employee was acting within the course and scope of his or her employment should not preclude a plaintiff from arguing both theories of recovery. * * *

Under the doctrine of stare decisis, we are bound by our supreme court’s Broadstreet decision. Moreover, allowing the fact-finder consider Pizza Hut’s and its employee’s fault, if any, in causing the accident that resulted in Hamblin’s death is consistent with our Comparative Fault Act. For all of these reasons, we conclude that the trial court erred when it granted summary judgment to Pizza Hut on the Estate’s negligent hiring and retention claim.

NFP civil decisions today (0):

NFP criminal decisions today (1):

Mark H. Greedy v. State of Indiana (mem. dec.)

Posted by Marcia Oddi on September 27, 2016 11:04 AM
Posted to Ind. App.Ct. Decisions

Ind. Courts - ACLU of Indiana Sues City of Lawrenceburg for Discrimination against People with Disabilities

From the news release:

Indianapolis -- The American Civil Liberties Union of Indiana filed suit against the City of Lawrenceburg, Ind. today on behalf of an organization that assists people with disabilities, saying the city has engaged in "intentional discrimination" by preventing the organization from building a supported living home for people with disabilities. The lawsuit claims that the city violated the Equal Protection Clause of the Fourteenth Amendment to the U.S. Constitution, in addition to Indiana law and several federal statutes that protect people with disabilities.

The case was filed on behalf of New Horizons Rehabilitation, Inc., which serves the needs of people with intellectual and developmental disabilities in the southeast Indiana counties of Dearborn, Decatur, Franklin, Ohio, Ripley and Switzerland. The organization provides a variety of services to its clients, including job training and community-based employment, day services and individualized home and respite care and supports in five homes it already operates. In 2013, New Horizons was donated property in Lawrenceburg with the understanding that a home for individuals with disabilities would be built on the site.

These supported living homes are recognized in Indiana Code § 12-28-4-8, which specifies that such homes be classified under the same zoning requirements as other residential structures. However, Lawrenceburg has instead classified the residence as a "boarding house or medical facility."
Here is a copy of the 8-page complaint.

Posted by Marcia Oddi on September 27, 2016 10:39 AM
Posted to Indiana Courts | Indiana Government

Ind. Courts - Complaint filed against Johnson County prosecutor

Annie Goeller reports today in the Johnson County Daily Journal - some quotes:

The Johnson County prosecutor could face discipline by a state commission over comments he made after a judge found a man convicted of murder incompetent to be executed.

A complaint filed against Prosecutor Brad Cooper said he violated one of the state’s rules of professional conduct for attorneys and should be disciplined for professional misconduct, according to the filing with the Indiana Supreme Court Disciplinary Commission.

The state board is appointed by the Indiana Supreme Court and includes seven lawyers and two non-lawyers, and also has a staff to investigate and prosecute cases.

The complaint stems from comments Cooper made to the media in 2014 about an appeal filed by Michael Dean Overstreet, who was convicted of murdering Franklin College student Kelly Eckart in 1997. Overstreet’s attorneys argued he was not competent to be executed, and a South Bend judge agreed. * * *

After the judge ruled that Overstreet was not competent to be executed, Cooper told two media outlets that he disagreed with the judge’s decision, and called the judge distant and not accountable to local residents, according to the complaint. The appeal case had been moved to South Bend after Johnson County Superior Court 2 Judge Cynthia Emkes recused herself due to health issues.

According to the complaint, Cooper told one media outlet: “I was angry and suspicious when this case was sent to a distant judge who is not accountable to the Johnson County citizenry or a grieving mother who couldn’t even afford to drive up for the hearing. The idea that this convicted murdering monster is too sick to be executed is nothing short of outrageous and is an injustice to the victim, her mother, the jury and the hundreds of people who worked to convict this animal.” * * *

According to the complaint, those statements violated the rule for professional conduct for attorneys that says: “a lawyer shall not make a statement that the lawyer knows to be false or with reckless disregard as to its truth or falsity concerning the qualifications or integrity of a judge.”

The judge in the case, St. Joseph County Judge Jane Woodward Miller, filed the complaint and said the statements Cooper made were untrue, Cooper said in an email. The complaint did not say who filed it.

Cooper disagrees, he said in the email.

Cooper said he made the comments on behalf of Eckart, who cannot speak for herself, and will continue to advocate for Eckart and her family. For example, he went to the county and got approval to spend $3,400 from a fund that collects money seized in drug investigations to pay for Eckart’s mother to travel and stay in South Bend and attend Overstreet’s hearings, Cooper said.

“I am proud of the work I did on the Overstreet trial and, while I was not involved in the Overstreet appeal, I will continue to advocate for Kelly and her family until justice is finally served,” Cooper said in an email.

Here is the docket in the attorney discipline case, In The Matter of Bradley David Cooper (41S00-1509-DI-00520). Final hearing is set for Oct. 5.

A search of the ILB has revealed three earlier posts on Prosecutor Cooper. The first, from Nov. 20, 2014, concerns the remarks which are the subject of the current disciplinary action, quoting Vic Ryckaert of the Indianapolis Star in a story on "the reaction of the prosecutor in the trial." The other two earlier posts:

  • March 3, 2016. Johnson County "prosecutor seeks re-election by bragging about 'proudly over-crowding our prison's"

  • March 11, 2015. "Johnson County prosecutor blasts criminal code revisions in rape case"

Posted by Marcia Oddi on September 27, 2016 10:07 AM
Posted to Indiana Courts

Ind. Courts - United States Magistrate Judge Tim A. Baker up for reappointment

A public notice from the USDC, SD Ind:

The current term of office of United States Magistrate Judge Tim A. Baker, at Indianapolis, Indiana, is due to expire on September 30, 2017. The United States District Court is required by law to establish a panel of citizens to consider the reappointment of the magistrate judge to a new eight-year term.

The duties of a magistrate judge position include the following: (1) conduct of most preliminary proceedings in criminal cases; (2) trial and disposition of misdemeanor cases; (3) conduct of various pretrial matters and evidentiary proceedings on delegation from the judges of the district court; and (4) trial and disposition of civil cases upon consent of the litigants.

Comments from members of the bar and the public are invited as to whether the incumbent magistrate judge should be recommended by the panel for reappointment by the court and should be directed to Laura A. Briggs, Clerk, Attn: Reappointment Panel, United States District Court, 46 East Ohio Street, Room 105, Indianapolis, Indiana 46204. Comments may also be submitted via email to: localrules@insd.uscourts.gov.

Comments must be received by Friday, October 21, 2016.

Posted by Marcia Oddi on September 27, 2016 09:48 AM
Posted to Indiana Courts

Monday, September 26, 2016

Ind. Decisions - More on: Full 7th Circuit, 6-3, decides an Indiana case today, a prisoner appeal, reversing the district court, and the 7th Circuit panel

Updating this ILB post from Friday, Sept. 23, the AP is reporting:

Indianapolis — A northern Indiana prosecutor is weighing whether to retry a man after an appeals court threw out the man's triple-murder conviction.

Wayne Kubsch was convicted and sentenced to death in 2005 for the 1998 slayings of his wife, her ex-husband and her 10-year-old son. But the 7th Circuit Court of Appeals reversed those convictions Friday in a 6-3 decision.

The court found that a girl's statement that she saw one of the victims after the time prosecutors say Kubsch committed the killings was "critical evidence" jurors should have heard.

St. Joseph County Prosecutor Ken Cotter said Monday that he will consult with the victims' families and review case files before determining how to proceed.

From the South Bend Tribune:
A federal appeals court ushered in a chance for a third trial for Wayne Kubsch, a man sentenced to death twice after being found guilty in two former trials for the 1998 deaths of his wife, her ex-husband and 10-year-old son.

The 7th U.S. Circuit Court of Appeals ruled Friday that a videotaped testimony from then a 9-year-old girl from the 1998 investigation should have been allowed to be shown to a jury.

Posted by Marcia Oddi on September 26, 2016 02:00 PM
Posted to Ind. (7th Cir.) Decisions

Ind. Decisions - Tax Court posts one today, decided Sept. 23

In Thor Industries, Inc. and Subsidiaries v. Indiana Department of Revenue, a 9-page opinion, Judge Wentworth writes:

Thor Industries, Inc. and Subsidiaries (collectively “Thor”) has moved to withdraw twenty-nine separately numbered requests for admissions that were conclusively admitted by operation of law when Thor failed to timely respond to the Indiana Department of State Revenue’s First Request for Admissions. The Court grants Thor’s motion. * * *

In instances like these, where a litigant’s use of Trial Rule 36(B) contravenes the Rule’s important purpose of more quickly and efficiently reaching a resolution based on the actual facts, the Court may withdraw the admissions when the presentation of the merits will be subserved and the party benefitting from them is not prejudiced. See, e.g., id. at 353-54. Indeed, Trial Rule 36(B) “‘is not intended to provide a windfall to litigants[,]’” nor is it to be used as a “‘gotcha’ device” or “‘as a trap to prevent the presentation of the truth in a full hearing[;]’” instead, it is to be used “‘as a tool for the fair disposition of litigation with a minimum of delay.’” See id. at 354 (citations omitted). Accordingly, and in keeping with this Court’s long-standing policy of deciding cases on their merits, the Court GRANTS Thor’s Motion. Consistent with the Court’s Order of August 26, 2016, the Department shall file a Notice regarding its intent to maintain or withdraw its Motion for Summary Judgment on or before September 30, 2016.

Posted by Marcia Oddi on September 26, 2016 01:47 PM
Posted to Ind. Tax Ct. Decisions

Ind. Gov't. - Referendum questions now at the beginning of the ballot

A Bloomington Herald-Times tweet today includes a photo of the top of the November official ballot for Monroe County. The linked-to $$ story points out:

There's one thing supporters of the tax referendum for the Monroe County Community School Corp. don't have to worry about anymore: The question about whether to extend a property tax increase first adopted in 2010 won't be at the bottom of the general election ballot.

That came as something of a surprise last week, when copies of the final general election ballot were sent out from the Monroe County Clerk's Office. Referendum campaign volunteers had been telling supporters, "Don't stop at the top," thinking the question would be the last thing on the ballot, as it was in 2010.

But in 2011, Indiana law changed to require state constitutional amendments and "local public questions" to be placed at the top, right after instructions for voters and before any officeholders being selected by voters. That's where the MCCSC referendum question will be located when voters go to the polls in November. It will be labeled "School District Question," and it will appear immediately after a proposed state amendment that would make hunting and fishing a constitutional right, and just before straight-party voting options. [ILB emphasis]

Posted by Marcia Oddi on September 26, 2016 01:32 PM
Posted to Indiana Government

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

For publication opinions today (2):

In Jon A. Arnold v. State of Indiana, a 21-page opinion, Judge Brown writes:

Jon A. Arnold
appeals the denial of his petition for post-conviction relief. He
raises several issues for our review, which we consolidate and restate as whether the post-conviction court erred in denying his petition for relief. We affirm.
In A.B. & T.B. v. The Indiana Department of Child Services, a 17-page opinion, Judge Altice writes:
This appeal involves the involuntary termination of parental rights with respect to two children, T.B. and R.K., who are half-siblings. Mother and Father are the parents of T.B., and R.K.’s father is deceased. Mother has been incarcerated throughout the underlying CHINS and termination proceedings. Father engaged in services for several months until his overwhelming distrust and dislike for the Indiana Department of Child Services (DCS) and service providers took over. From that point on, Father angrily rebuffed any attempts by providers to reengage him in services and ceased visiting with the children.

On appeal, Father presents a purely procedural issue. He contends that his parental rights with respect to T.B. were terminated without due process of law because the trial court terminated Father’s telephonic participation during the final hearing due to Father’s angry outbursts. Mother, on the other hand, challenges the trial court’s findings and conclusions supporting the termination. We affirm.

NFP civil decisions today (0):

NFP criminal decisions today (5):

Malena Shumaker v. State of Indiana (mem. dec.)

Steven A. Pearson v. State of Indiana (mem. dec.)

Robert Stevenson v. State of Indiana (mem. dec.)

Charles R. Ellis v. State of Indiana (mem. dec.)

Jeffrey B. Buskirk v. State of Indiana (mem. dec.)

Posted by Marcia Oddi on September 26, 2016 11:30 AM
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Transfer list for week ending September 23, 2016

Here is the Clerk's transfer list for the week ending Friday, Sept. 23, 2016. It is two pages (and 22 cases) long.

NO transfers were granted last week.

There were two cases last week where transfer was denied by a 3-2 vote:

  • Charles Allen Robinson v. State of Indiana - this is a 2-1, 6/30/16 COA opinion. Transfer Denied - All Justices concur, except except David and Massa, JJ., who vote to grant the petition to transfer.
    ILB: "We simply do not believe the commission of two acts of shoplifting of this type is the kind of activity our legislature meant to be covered by our RICO statute."

  • Andrew Shotts v. State of Indiana - this is a 4/27/16 COA opinion. Transfer Denied - All Justices concur, except for Rush, C.J., and Rucker, J., who vote to grant the petition to transfer.
    ILB: The Supreme Court heard oral argument on September 22nd.

Posted by Marcia Oddi on September 26, 2016 11:09 AM
Posted to Indiana Transfer Lists

Ind. Decisions - More on "Appeals court says video 'indisputably contradicts' South Bend police testimony"

Updating this ILB post from September 9th, quoting from a story that day by Christian Scheckler of the South Bend Tribune on the Sept. 8th COA opinion in Royce Love v. State of Indiana, reporter Sheckler had a new, very lengthy story Sunday in the SBT, headed "Does video of arrest contradict South Bend police?
Use of force, cops' honesty at center of legal fight."
Some quotes:

But the officers’ statements are in question after the Indiana Court of Appeals this month reversed two of Love’s convictions, finding that video footage of the arrest showed he complied with the police and lay on the ground before the officers deployed their Tasers and the dog.

The reversal of Love’s convictions comes as South Bend police face scrutiny over several cases of alleged excessive force and civil rights violations. * * *

Two of the officers in the Love case were involved in a separate case in 2010 that also raised questions about excessive force and ended with an appeals court reversing a man’s conviction.

Love, for his part, has filed a lawsuit against the officers and even called for prosecutors to charge the officers, arguing they lied under oath.

“I think the officers should be charged with battery and perjury. That would only be fair,” Love, 36, said in an interview with The Tribune. “I know there are some good officers out there, and I know there are some bad officers, and I just wish the good officers would stand up and hold the bad ones accountable.”

Yet whether the officers knowingly made false statements is still under debate, and it’s unclear whether the appellate court’s ruling, which seemingly refuted the officers’ sworn statements, could lead to discipline, criminal charges or any other consequences. * * *

Cotter, the county prosecutor, this week maintained that the video of Love’s arrest in the 2013 case did not show that the officers gave false statements. He had not viewed the video but said his staff briefed him on the footage. * * *

Cotter said he expects the Indiana attorney general’s office to ask the state Supreme Court to review the case, a request that should come by early- to mid-October.

Even if some of Love’s actions happened outside the view of the camera, however, a copy of the police video obtained by The Tribune seemed to contradict the officers’ version of how the events played out. * * *

Appellate decisions that refute police officers’ statements based on video evidence are rare but will become more common as footage from police body cameras and other types of video become more widely available, said Joel Schumm, an Indiana University law professor who specializes in appeals.

“The way appellate judges consider video evidence is a developing issue,” Schumm said. “As the Love opinion shows, not all judges agree with what approach to take.”

Court of Appeals Judge Rudolph R. Pyle III dissented with the majority in the Love case, arguing that the court went beyond its authority by re-weighing evidence that was already considered by a trial jury.

By rule, Indiana’s appellate courts are expected to consider only whether the evidence most favorable to the prosecution was enough for a reasonable jury to return a guilty verdict. But the Supreme Court also has held that if the review of facts shows a total lack of evidence strong enough to prove guilt beyond a reasonable doubt, the court has a duty to reverse a conviction.

Posted by Marcia Oddi on September 26, 2016 10:45 AM
Posted to Ind. App.Ct. Decisions

Law - "Phone Makers Could Cut Off Drivers. So Why Don’t They?"

A few quotes from Matt Richtel's September 25th story on the front page of the Sunday NY Times Business section:

With driving fatalities rising at levels not seen in 50 years, the growing incidence of distracted driving is getting part of the blame. Now a lawsuit related to that 2013 Texas crash is raising a question: Does Apple — or any cellphone maker or wireless company — have a responsibility to prevent devices from being used by drivers in illegal and dangerous ways?

The product liability lawsuit, filed against Apple by families of the victims, contends that Apple knew its phones would be used for texting and did not prevent Ms. Kubiak from texting dangerously. The suit is unlikely to succeed, legal experts said, and a Texas magistrate in August preliminarily recommended the case’s dismissal on grounds that it was unlikely that lawyers could prove that the use of the iPhone caused the fatal accident.

Ms. Kubiak was convicted of negligent homicide and sentenced to five years on probation. Her lawyer, Jason Cassel, said she now keeps her phone in the back seat.

“The mere fact she’s putting her phone in her back seat in her purse shows she realizes how tempting it is to look down when we get a beep, chime, vibration,” Mr. Cassel said. “She never wants to be near the possibility” of being tempted to answer it.

The product liability case has brought to light a piece of evidence that legal and safety experts say puts Apple in a quandary — one it shares with other wireless companies. In Apple’s case, the evidence shows, the company has a patent for technology designed to prevent texting while driving, but it has not deployed it.

Posted by Marcia Oddi on September 26, 2016 10:37 AM
Posted to General Law Related

Ind. Gov't. - "Conservatives pour money into races for state attorneys general"

That is the headline to a long Sept. 23rd story in the Washington Post, reported by Steven Mufson. Some quotes:

Conservative organizations are pouring money into the coffers of the Republican Attorneys General Association, which is far outpacing its Democratic rival in fundraising to elect candidates who will stand up to what they see as an activist Democratic agenda. * * *

Recently GOP attorneys general have cast themselves as the last bulwark against federal government encroachment and have thrown themselves against President Obama’s policies on immigration, health-care reform, climate change and Labor Department overtime rules.

RAGA has tapped into the fossil-fuel industry, health insurers and ideological donors from the right wing of the political spectrum for large infusions of cash.

The top contributions, as of early May, included $1,445,000 from the Judicial Crisis Network, devoted to blocking the appointment of liberal judges; $1,180,000 from the U.S. Chamber of Commerce’s Institute for Legal Reform; $500,000 from Republican casino billionaire Sheldon Adelson; and $451,100 from Blue Cross Blue Shield, a large health insurance company that has been struggling to provide plans under the Affordable Care Act.

Posted by Marcia Oddi on September 26, 2016 10:28 AM
Posted to Indiana Government

Ind. Decisions - Upcoming oral arguments this week and next

This week's oral arguments before the Supreme Court (week of 9/26/16):

  • No oral arguments currently scheduled.

Next week's oral arguments before the Supreme Court (week of 10/3/16):

Thursday, October 6

  • 9:00 AM - Michael T. Shoun v. State of Indiana (20S00-1601-LW-00061) Following a jury trial, the Elkhart Circuit Court convicted Shoun of murder and sentenced him to life imprisonment without parole. In this direct appeal, Shoun appeals alleged errors related to his sentence and requests revision of his sentence to a term of years.

  • 9:45 AM - Mary Hannah Osborne v. State of Indiana (29S02-1608-CR-00433) Police stopped Osborne’s vehicle and determined she was intoxicated. The State charged Osborne with two misdemeanor counts of driving while intoxicated, and Osborne moved to suppress evidence, contending the stop was unlawful under the United States and Indiana Constitutions. The Hamilton Superior Court denied the motion. The Court of Appeals accepted Osborne’s interlocutory appeal and reversed the trial court, finding the traffic stop violated the Fourth Amendment. Osborne v. State, 54 N.E.3d 428 (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, May 12, 2016 COA opinion (3rd case) reversing the trial court's denial of a motion to suppress, holding:

    ... the community caretaking function of police officers may apply to justify a traffic stop where the officer does not otherwise observe a traffic violation or have a reasonable suspicion that criminal activity is afoot. However, based on the facts of this case, we conclude that the exercise of Officer Arnold’s community caretaking function was not reasonable and, therefore, violated Osborne’s Fourth Amendment rights.
  • 10:30 AM - Thomas Bunger, in his capacity as the Personal Representative of The Estate of Kenneth K. Kinney; Judith M. Fulford; and Sheree Demming (53A01-1509-MI-01305) In this case involving interpretation of a real estate deed, the Monroe Circuit Court determined that Judith Fulford and her now-deceased husband held a one-half interest in the property as tenants by the entireties, and Cheryl Underwood held the other one-half interest individually. The Court of Appeals affirmed, rejecting Underwood's argument that the deed conveyed a one-third interest to each of the parties, as tenants-in-common. Underwood v. Bunger, et. al., 52 N.E.3d 829 (Ind. Ct. App. 2016), reh’g denied. Underwood has petitioned the Supreme Court to accept jurisdiction over the appeal.

    ILB: This is a March 23, 2016 COA opinion.

Webcasts of Supreme Court oral arguments are available here.


This week's oral arguments before the Court of Appeals (week of 9/26/16):

  • No oral arguments currently scheduled.

Next week's oral arguments before the Court of Appeals (week of 10/3/16):

Monday, October 3
  • 10:00 AM - Lance Brown v. State of Indiana (89A01-1601-CR-00128) In this appeal, Brown challenges the sufficiency of the evidence rebutting his defenses and the trial court’s interpretation of applicable statute. The Scheduled Panel Members are: Judges Mathias, Bradford and Altice. [Where: Hamilton Southeastern High School, Fishers, IN]

Wednesday, October 5

  • 10:00 AM - David McCollough v. Noblesville Schools, et al (29A02-1512-CT-02181) Following an incident with a student during basketball practice, David McCollough, a teacher and the boys’ basketball coach at Noblesville High School, was first placed on administrative leave with pay for five days and then informed he would not be offered a contract to be basketball coach the following year. McCollough filed a lawsuit against Noblesville Schools and Jeff Bryant, the high school principal, alleging causes of action for defamation, intentional interference with a business relationship, intentional infliction of emotional distress, breach of contract, and negligence. The Defendants moved for summary judgment on all claims. The trial court denied the motion as to the defamation claim, but granted it as to all others. On appeal, McCollough contends the trial court erroneously granted summary judgment to the Defendants because genuine issues of material fact remain to be resolved by the fact finder with respect to each claim. The Defendants cross-appeal, asserting the trial court erred in denying their motion for summary judgment as to the defamation claim. The Scheduled Panel Members are: Judges Riley, Bradford and Altice. [Where: Clinton Prairie High School, Frankfort, IN]

Thursday, October 6

  • 1:00 PM - Jordan Jacobs v. State of Indiana (49A02-1601-CR-00019) Appellant-Defendant Jordan Jacobs was convicted of Class A misdemeanor carrying a handgun without a license. Jacobs challenges his conviction on appeal, arguing that the trial court abused its discretion in admitting the handgun into evidence. In raising this argument, Jacobs asserts that the handgun was recovered in violation of both the 4th Amendment to the United States Constitution and Article I, Section 11 of the Indiana Constitution. For its part, Appellee-Plaintiff the State of Indiana argues that trial court did not abuse its discretion in admitting the handgun into evidence at trial. The Scheduled Panel Members are: Judges Barnes, Bradford and Altice. [Where: "Miami County"]

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 September 26, 2016 08:20 AM
Posted to Upcoming Oral Arguments

Friday, September 23, 2016

Courts - "California repeals ban on use of assembly video for political purposes" What about Indiana?

That is the headline to an item Eugene Volokh is reporting in the Washington Post's Volokh Conspiracy blog. A quote:

California Penal Code § 9026.5, ... makes it a crime to rebroadcast televised California Assembly proceedings “for any political or commercial purpose, including … any campaign for elective public office or any campaign supporting or opposing a ballot proposition submitted to the electors.”

On June 9, U.S. District Court Judge Morrison England granted our request for a preliminary injunction ordering the state not to enforce the law and promised an opinion in due course. We were ready to keep on fighting to final judgment — the state had indeed been defending the law — but I’m delighted to report that yesterday Gov. Jerry Brown signed a bill repealing the prohibition.

ILB: What about Indiana?

Indiana's website includes this statement with every video:

No part of the audio or video coverage provided, including closed captioned text, may be used for commercial purposes intended to result in a profit or other tangible benefit to any person without the permission of the Legislative Council.

Except as provided in IC 2-5-1.1, audio or video coverage, including closed captioned text, does not constitute legislative history or an expression of the legislative intent, purpose, or meaning of an act enacted or a resolution adopted by the General Assembly.

The ILB thought there was an Indiana statutory prohibition against using videocasts for political purposes, but I'm not finding it. IC 2-5-1.1-13 covers "commercial purposes."

IC 2-5-1.1-14 provides that legislative audio or video coverage "is not part of the legislative history of an act enacted or resolution adopted by the general assembly" except where the general assembly expressly declares otherwise.

IC 25-1.1-15 provides that legislative audio or video coverage "does not constitute an expression of the legislative intent, purpose, or meaning of an act enacted or resolution adopted by the general assembly" except where the general assembly expressly declares otherwise.

In some states, the limitations set out in IC 2-5-1.1-14 & 5 might be considered to be in violation of the constitutional separation of powers.

Posted by Marcia Oddi on September 23, 2016 04:20 PM
Posted to Courts in general

Ind. Decisions - Full 7th Circuit, 6-3, decides an Indiana case today, a prisoner appeal, reversing the district court, and the 7th Circuit panel

In Wayne D. Kubsch v. Ron Neal (ND Ind., Simon), a 68-page, en banc opinion, Chief Judge Wood writes:

On September 18, 1998, someone murdered three people in Mishawaka, Indiana: Beth Kubsch, Rick Milewski, and his son Aaron Milewski. Beth’s husband, Wayne Kubsch, was accused and convicted of the triple murders and sentenced to death. After direct appeals and postconviction proceedings in Indiana’s state courts, Kubsch turned to the federal court for habeas corpus relief under 28 U.S.C. § 2254. Although he raised a number of arguments in support of his petition, by now they have been distilled into one overarching question: did the state courts render a decision contrary to, or unreasonably applying, the U.S. Supreme Court’s decision in Chambers v. Mississippi, 410 U.S. 284 (1973)? The stakes could not be higher: because the state courts found Chambers inapplicable, the jury never heard evidence that, if believed, would have shown that Kubsch could not have committed the crimes. The district court and a panel of this court concluded that the state court decisions passed muster under the deferential standards imposed by the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). See Kubsch v. Neal (Kubsch IV), 800 F.3d 783 (7th Cir. 2015). That opinion was vacated when the full court decided to hear the case en banc. We now reverse and remand for issuance of the writ. * * *

[ILB: The en banc panel was composed of Before WOOD, Chief Judge, and POSNER, FLAUM, EASTERBROOK, KANNE, ROVNER, WILLIAMS, SYKES, and HAMILTON.

Circuit Judge HAMILTON, joined by EASTERBROOK and SYKES, dissent, beginning on p. 54.]

The Indiana courts excluded as evidence an unsworn, ex parte interview of a nine year-old witness who later disclaimed any memory of the interview. That decision did not violate petitioner Kubsch’s constitutional rights. The exclusion certainly was not an unreasonable application of “clearly established Federal law, as determined by the Supreme Court of the United States.” 28 U.S.C. § 2254(d)(1).

To overturn Kubsch’s three murder convictions, the en banc majority has crafted a new rule so narrow and case-specific as to be good apparently only for this case: “Only if all of the factors the Court has specified, and we have described, come together must the evidence rule yield.” Ante at 34. That qualification is a red flag signaling a decision in conflict with § 2254(d)(1). True, the majority has built its argument from texts in the volumes of the United States Reports, working from Chambers v. Mississippi, 410 U.S. 284 (1973), and its progeny. But that line of cases requires careful balancing of many case specific factors, which the majority says must all point in the same direction for a rule of evidence to yield. I disagree with the majority’s new, case-specific rule, but the decisive point in this habeas case is that that new rule is not compelled by those precedents. Fair-minded judges can disagree with it. * * *

The rules of evidence, whether in codes or case law, inevitably pose a risk of excluding some reliable and probative evidence in some cases. Our criminal justice system is not infallible, but the rules of evidence have evolved to try to improve accuracy and fairness. The residual risk of error in capital cases is deeply sobering for all of us with roles in the criminal justice system. That risk offers a powerful policy argument against the death penalty. It does not provide a reason to disregard rules of evidence that apply to both sides and have been designed to ensure fair and reliable evaluation of evidence. The majority’s new, narrow, and case-specific exception is not compelled by Supreme Court precedent and does not support habeas relief here.

Posted by Marcia Oddi on September 23, 2016 03:53 PM
Posted to Ind. (7th Cir.) Decisions

Ind. Decisions - Court of Appeals issues 1 opinion(s) today (and 9 NFP memorandum decision(s))

For publication opinions today (1):

In In Re: The Adoption of: J.S.S. and K.N.S., Rayburn and Beth Robinson v. M.R.S., a 10-page opinion, Judge Bailey writes:

B.R. and R.R. (“Foster Parents”) petitioned to adopt J.S.S. and K.N.S. (“Children”) without the consent of M.S. (“Father”). The trial court found Foster Parents had not established the clear and convincing evidence necessary to dispense with parental consent and Foster Parents filed a motion to correct error, which was substantively denied. Appealing a negative judgment, Foster Parents present a sole issue: whether the trial court’s decision is contrary to law. We affirm. * * *

Based upon their assumption that Father delayed for one and one-half years,2 Foster Parents argue that Father should be held accountable for a lack of diligence. However, our review is not one of whether a parent acted promptly or reasonably. Foster Parents were required to show, by clear and convincing evidence, Father failed to communicate “when able to do so.” I.C. § 31-19-9-8. Our review is limited to whether there was any evidence of record to support the trial court’s determination that Foster Parents failed to establish that Father had such ability. J.W., 697 N.E.2d at 481. CHINS orders and caseworker testimony support the trial court’s order.

The trial court did not clearly err in determining that Foster Parents failed to meet their burden of proof to obviate the necessity of Father’s consent to the proposed adoptions. Affirmed.

NFP civil decisions today (2):

Kimberly A. Anderson v. Marc A. Anderson (mem. dec.)

In the Matter of the Termination of the Parent-Child Relationship of N.D. and A.J., Minor Children, L.J. Mother v. The Ind. Dept. of Child Services (mem. dec.)

NFP criminal decisions today (7):

Andrew Stetler v. State of Indiana (mem. dec.)

Abdullah Alkhalidi v. State of Indiana (mem. dec.)

John E. Gray v. State of Indiana (mem. dec.)

Calvin Lyons v. State of Indiana (mem. dec.)

Daniel N. Begly v. State of Indiana (mem. dec.)

Michael Cunagin v. State of Indiana (mem. dec.)

Michael R. Clark v. State of Indiana (mem. dec.)

Posted by Marcia Oddi on September 23, 2016 11:11 AM
Posted to Ind. App.Ct. Decisions

Ind. Gov't. - "Polluted Indy golf course could cost taxpayers $6M"

Some quotes from this long, front page story by Brian Eason in today's Indianapolis Star:

For decades, the concoction of trash, industrial chemicals and sewage sludge buried near the Whispering Hills Golf Course was out of sight, out of mind — and, as far as Indiana environmental regulators were concerned, contained.

That is, until recently. In April 2014, an Indiana Department of Environmental Management site inspection discovered the landfill cap had eroded due to natural wear and tear, compromising a critical barrier designed to prevent the toxins from escaping.

Now, Indy Parks may have to pony up as much as $6 million to install new protections for the contamination at the old Julietta Landfill, a longtime industrial dumpsite on the southeast side that the city converted into the public golf course in the early 1990s. * * *

A former pig farm, the property was leased in the 1950s to a sand and gravel company. The mining operation left huge pits in the ground when it abandoned the site in the early 1960s, and residents began dumping their household waste there illegally, according to IDEM records.

Later that decade, it was leased to a private landfill operator, and served as a dump for commercial and industrial waste until 1976, when the Indiana State Board of Health determined the site’s geology was unsuitable for use as a landfill, and the private operator voluntarily closed it. By that time it had accumulated 2.6 million cubic yards of waste, including industrial chemicals, such as glue and oil.

Later, from 1982 to 1985, the city used it to store more than 16,000 tons of sludge from a municipal wastewater treatment plant — the solid, fertilizer-like substance left over from the sewage treatment process.

And as early as 1988, the city began trying to repurpose it as a golf course.

It's not clear now, from a review of IDEM documents, why the plans went forward. But IDEM regulators warned a city consultant in 1988 that the pollution at the site was so extensive that it was under consideration to be added to the National Priorities List, an Environmental Protection Agency designation that makes it eligible for federal Superfund cleanup dollars.

In 1995 — with a landfill cap and various monitoring protocols in place — Whispering Hills Golf Course opened to the public. But under state law, the parks department, as the landowner, also took on the long-term responsibility to keep what was buried there from getting out.

Posted by Marcia Oddi on September 23, 2016 10:49 AM
Posted to Environment | Indiana Government

Ind. Gov't. - "Knightstown, New Castle agree not to oppose Henry County wind farm development"

The ILB has a long list of entries on local regulation of wind turbines. Here is a new story from the New Castle Courier-Times, reported by Kevin L. Green, as reprinted in The Indiana Economic Digest. The story begins:

At the Knightstown Town Council’s Aug. 25 meeting, Susan Huhn, an independent candidate seeking the Henry County Commissioner southern district seat, made a presentation in which she outlined her thoughts on why commercial wind turbines should not be welcomed in Henry County. She asked the council to consider drafting and supporting a resolution denouncing wind farm development

Following discussion of the idea, council member Valerie Trump said she supported the idea of signing such a resolution and following a unanimous vote, the council instructed town attorney Gregg Morelock to prepare such a resolution for the council’s Sept. 20 meeting.

At the Sept. 20 meeting, and before the proposed resolution was presented, the council heard from Apex Clean Energy representative Brenna Gunderson. She presented information about the wind farm Apex has in mind for Henry County. Gunderson countered many of the negative claims Huhn made the previous month and answered several questions posed by council members.

Council member Trump in particular expressed concerns about the reliability of wind power, where power generated locally would go and who it would benefit, the impact turbines might potentially have on property values and the possibility the turbines would adversely impact future economic development efforts. Gunderson addressed each of those concerns, though Trump did not appear to be satisfied with the responses she received.

“We have a two mile fringe outside the town for economic development and when I look at it, you’re setting those turbines inside that two mile fringe,” Trump said.

Additional questions were raised and comments made before council president Sarah Ward said, “The commissioners are going to make the decision, is that right? It doesn’t matter what the town says anyway. ... I think if we’re smart we just keep our nose out of it. We’ve got enough problems to take care of in our own town.”

Several audience members spoke in favor of wind development in Henry County, which was just the opposite of what happened at the council meeting a month prior.

Posted by Marcia Oddi on September 23, 2016 10:39 AM
Posted to Indiana Government

Ind. Gov't. - Kentucky's Governor and Attorney General are of opposite parties, what could go wrong?

Bill Chapell of WBOI.org, a Kentucky NPR station, reported yesterday afternoon in a story headed "Kentucky Governor Can't Cut Universities' Budgets, Court Rules," in a story that begins:

Ruling on a lawsuit filed by a state's Democratic attorney general against its Republican governor, the Kentucky Supreme Court says Gov. Matt Bevin doesn't have the authority to unilaterally slice money out of a state university's budget.
More from the story:
Weeks after Bevin took office, he called for 4.5 percent cuts across much of Kentucky's budget — and when the politically divided state legislature didn't embrace those mid-year cuts, Bevin issued an order imposing them on the university and community college system at the end of March.

In the majority's 50-page opinion
that both affirms the attorney general's right to sue the governor and reverses the governor's budget decree, the Kentucky Supreme Court wrote, "the Governor cannot order the boards of the Universities not to spend funds appropriated to them."

Posted by Marcia Oddi on September 23, 2016 09:49 AM
Posted to Indiana Government

Ind. Decisions - 7th Circuit decided one Indiana case yesterday, re claim of overtime under FLSA

In James Melton v. Tippecanoe County, Indiana (ND Ind., Springmann), an 11-page opinion, Judge Kanne writes:

After he disregarded an order from his supervisor that he could not change his schedule to make up for missed time, Plaintiff James Melton was discharged from his job at the Tippecanoe County Surveyor’s Office. Melton later filed suit against the County, alleging that dur‐ ing his time there, he had arrived early and worked through lunch every day and was not compensated for overtime in violation of the Fair Labor Standards Act. The district court granted summary judgment to the County because Melton had not designated sufficient evidence to find that he worked more than forty hours in a workweek. We affirm. * * *

In his complaint, Melton alleged that his timecards did not accurately reflect the hours he worked because when he put his actual time worked on his timecard, the office secre‐ tary would reduce his hours to 37.5, telling him that he could not be paid for more than 37.5 hours in a workweek. Specifi‐ cally, Melton claimed that he was not compensated for (1) time worked before 8 a.m. even though his supervisor told him to come to work early every day and (2) time worked through all or part of his floating lunch each day.

In support of his claim that he was not properly compen‐ sated, and in response to discovery requests, Melton pro‐ duced a spreadsheet created from memory that purports to show the dates and times he worked during the whole of his employment with Tippecanoe County.  * * *

As we explained earlier, even if Melton had put forth his evidence supporting his claim of overtime lunch hours, his testimony by spreadsheet is so “internally inconsistent [and] implausible on its face” that it cannot satisfy Melton’s bur‐ den to establish a prima facie FLSA case. Seshadri, 130 F.3d at 802. Melton knew that the County was arguing that his rec‐ ollection and spreadsheet were “unreliable,” and he certain‐ ly had a meaningful opportunity to address that argument. Instead, he deemed it “premature.” It was not, and neither was the district court’s grant of summary judgment.

Posted by Marcia Oddi on September 23, 2016 09:34 AM
Posted to Ind. (7th Cir.) Decisions

Thursday, September 22, 2016

Ind. Decisions - 7th Circuit decides Soccer Labor Dispute

In United States Soccer Federation v. United States National Soccer Team Players Ass'n (ND Ill.), a 22-page opinion, Judge Kanne writes:

Soccer is called “the beautiful game,” but the collective-bargaining process behind the sport can be ugly. This case matches Plaintiff United States Soccer Federation, Inc. (“US Soccer Federation”), the national governing body for soccer in the United States, against Defendant United States National Soccer Team Players Association (“Players Association”), the labor union for members of the Men’s National Team, in a dispute over their current collective bargaining agreement (“CBA”) and uniform player agreement (“UPA” and collectively with CBA, “CBA/UPA”).

The present case kicked off in 2013, when the Players Association disapproved the US Soccer Federation’s proposed tequila poster advertisement, which contained player images. Counterattacking, the US Soccer Federation issued a notice, declaring that the CBA/UPA does not require Players Association approval for use of player likenesses for six or more players in print creative advertisements by sponsors, based on the express terms of the agreement. Crying foul, the Players Association filed a grievance and demanded arbitration, arguing that the CBA/UPA does require this, based on the past practice of the parties.

The arbitrator issued an award in favor of the Players Association. The district court confirmed the arbitrator’s award and granted summary judgment for the Players Association. The US Soccer Federation appealed. We reverse. * * *

In conclusion, we recognize that a goal of arbitration is to provide the parties with “swift, inexpensive and final decisions,” but “this does not vitiate judicial review of an arbitrator’s decision.” Anheuser-Busch, 280 F.3d at 1144. Here, just as the parties agreed to arbitration, they also agreed “to limit the arbitrator’s authority and preserve[] their right to challenge decisions when the arbitrator had reached out and rendered a decision that stray[ed] beyond his delegated authority and is barred by the negotiated contract.” Id.

III. CONCLUSION

For the foregoing reasons, the judgment of the district court is REVERSED. This case is REMANDED with instructions to VACATE the award of the arbitrator and enter judgment in favor of the US Soccer Federation.

Posted by Marcia Oddi on September 22, 2016 04:45 PM
Posted to Ind. (7th Cir.) Decisions

Ind. Gov't. - "Are Fishing and Hunting a Right or a Privilege? Indiana and Kansas Will Decide"

That is the heading to a September 22nd story in Governing, by J.B. Wogan, that reports:

Voters typically pass right-to-hunt-and-fish measures with large margins, and only one state's voters -- Arizona -- have rejected such an initiative, according to the National Conference of State Legislatures.
Currently 19 states have the ban in their constitutions.

See also this longer ILB post from yesterday.

Posted by Marcia Oddi on September 22, 2016 04:13 PM
Posted to Environment | Indiana Government

Courts - "Supreme Court Justices Won’t Answer Questions About Their Health"

Tony Mauro has just posted this interesting article at Law.com. A few quotes:

The intense debate over how transparent presidential nominees Hillary Clinton and Donald Trump should be about their health gives rise to another question: What about the health of Supreme Court justices?

After all, the average age of the justices is 69—right between Clinton, who is 68, and Trump, who is 70. And the most extensive medical information about a Supreme Court justice that has been made public pertains to Antonin Scalia—though it was revealed after he died in February.

But the high court marches to its own tune. So when Law.com asked all eight current justices to make public their health statuses earlier this month, a single response came back from Chief Justice John Roberts Jr. this week. His answer, in effect, was: “Thanks for asking, but we’ll release information about our health when we feel the public needs to know.”

Later in the lengthy article:
Concern over the lack of health information about the court predated the recent squabble between Clinton and Trump over their health disclosures. For some, Scalia’s death on Feb. 13 at a Texas hunting resort justified why justices should be more forthcoming.

It was not until after Scalia’s death that the public learned, through a letter from the attending physician of Congress that Scalia had “many chronic medical conditions,” including high blood pressure, diabetes, chronic obstructive pulmonary disease, obstructive sleep apnea and coronary artery disease. Dr. Henry Monahan, whose office treated Scalia for 29 years, wrote the letter to the Texas judge who was assessing the cause of Scalia’s death, and the letter was made public only through a public records request under Texas law.

“Think about how much we learned about Scalia’s health after his death,” said court scholar David Garrow, professor at the University of Pittsburgh School of Law. “It was much worse than we knew.”

George Washington University Law School associate dean Alan Morrison, a longtime court-watcher, said that, if Scalia’s ailments had been publicly known before his death, the justice might have felt compelled to retire, resulting in a “more orderly succession.”

Posted by Marcia Oddi on September 22, 2016 02:18 PM
Posted to Courts in general

Law - "How The State Bar Of Michigan Is Embracing Technology"

A good article by Nicole Back at Above the Law. A sample:

[The Michigan] Bar established a “21st Century Task Force” with 5 enumerated goals: 1) increase transparency in the legal marketplace, 2) provide better practical skills training for lawyers, 3) use technology to decrease the complexity of legal processes, 4) modernize the rules of professional responsibility, and 5) reduce law firms’ cultural resistance to innovation.

Posted by Marcia Oddi on September 22, 2016 11:24 AM
Posted to General Law Related

Ind. Decisions - Court of Appeals issues 0 opinion(s) today (and 11 NFP memorandum decision(s))

For publication opinions today (0):

NFP civil decisions today (1):

In the Termination of the Parent-Child Relationship of: L.M. and S.M. (Minor Children); M.C. (Father) v. Indiana Department of Child Services (mem. dec.)

NFP criminal decisions today (10):

Darwick Young v. State of Indiana (mem. dec.)

William Strang v. State of Indiana (mem. dec.)

Jimmy Isbell v. State of Indiana (mem. dec.)

Devon Ballard v. State of Indiana (mem. dec.)

Brian W. Ellis v. State of Indiana (mem. dec.)

Russell Rouzier v. State of Indiana (mem. dec.)

Jason Alexander Kays v. State of Indiana (mem. dec.)

Morgan Christopher Foster v. State of Indiana (mem. dec.)

Brandon McGaughey v. State of Indiana (mem. dec.)

Derrick Rafael Burt v. State of Indiana (mem. dec.)

Posted by Marcia Oddi on September 22, 2016 11:20 AM
Posted to Ind. App.Ct. Decisions

Ind. Courts - "Clark County chief public defender says she was asked to resign"

From the Clark Co. News & Tribune, a story by Elizabeth DePompei that begins:

Clark County Chief Public Defender Amber Shaw said her position with the county is "still up in the air."

A job posting for Shaw's position was posted at the Clark County Government Center on Friday, Sept. 16, with applications due by Wednesday. The posting came less than three months after Shaw was hired by the Clark County Public Defender Board.

Board president Jennifer Culotta and members Ann Pfau and Mark Robinson have not returned multiples messages left last week and Wednesday. According to Shaw, the board asked her to resign from the chief public defender position during a public board meeting Sept. 15.

"I was stunned," Shaw said. "I wasn't given a reason … just that it was in the best interest of the county and the public defender's office, and that's all I’ve been told."

Posted by Marcia Oddi on September 22, 2016 09:54 AM
Posted to Indiana Courts

Ind. Gov't. - Interim Study Committee on Courts and the Judiciary today

The Interim Study Committee on Courts and the Judiciary will hold its second meeting of the interim at 1:30 today, September 22nd, in Room 404 of the Stathouse.

Its first meeting, held August 30th, was devoted to civil rights issues related to gender identity and sexual orientation.

Today's agenda lists:

1. Requests for new courts or changes to existing courts.
2. Update on the conversion of commissioners to magistrates in Marion County.
3. Visitation, communication, and interaction with a protected person.
You may watch the meeting live here.

Posted by Marcia Oddi on September 22, 2016 09:46 AM
Posted to Indiana Government

Wednesday, September 21, 2016

Ind. Decisions - 7th Circuit decides one Indiana case today, denying do-over of 2014 Marion County Superior Court primary

In Gregory Bowes v. Indiana Secretary of State (SD Ind., Young), a 16-page opinion, Judge Young writes:

Plaintiffs Gregory P. Bowes and Christopher K. Starkey lost in the May 2014 Democratic pri mary election for Marion County Superior Court judges. A few months later, and just before the general election, the district court for the Southern District of Indiana held that the statute establishing the system for the election of such judges, Indiana Code § 33–33–49–13, was unconstitutional. That decision was affirmed by this Court. Plaintiffs then sought a special election, which they argued was the only way to vindicate their constitutional rights. The district court held that a special election was not appropriate and granted defendants’ motion for summary judgment. For the reasons that follow, we agree and affirm. * * *

In sum, the district court was within its discretion to conclude that plaintiffs’ request for relief was not timely and that the state’s significant interest in governing without disruption outweighed plaintiffs’ interest in being placed on the ballot.

Posted by Marcia Oddi on September 21, 2016 04:55 PM
Posted to Ind. (7th Cir.) Decisions

Ind. Decisions - Court of Appeals issues 2 opinion(s) today (and 12 NFP memorandum decision(s))

For publication opinions today (2):

In Andre C. Coleman v. State of Indiana, a 9-page opinion, Judge Mathias writes:

Following a bench trial in Marion Superior Court, Andre Coleman (“Coleman”) was convicted of Class B misdemeanor public intoxication. He was ordered to serve 365 days in jail with 363 days suspended to probation. Coleman presents two issues on appeal, which we restate as whether the trial court abused its discretion in imposing a supplemental public defender fee, probation fees, and a drug and alcohol treatment fee.

We vacate the imposition of the supplemental public defender and probation fees and remand for proceedings consistent with this opinion. * * *

Based on the record, we conclude that the trial court did not impose a supplemental public defender fee or any of the other probation fees reflected on Coleman’s case transaction summary. The imposition of these fees appears to be an error by the probation department. We therefore vacate these fees and remand to the trial court to hold an indigency hearing. Further, if the trial court concludes that Coleman is not indigent, it should order Coleman to pay a $150 alcohol and drug services fee.

In Charles R. Cole, III v. State of Indiana, an 11-page opinion, Sr. Judge Barteau writes:
Cole raises one issue, which we restate as: whether the post-conviction court erred in rejecting his claim of ineffective assistance of trial counsel. * * *

Cole argues the post-conviction court erred by rejecting one of his claims of ineffective assistance of trial counsel. Specifically, he contends his attorneys should have objected to the State’s amendment of the charging information to add an additional count of robbery because the amendment was untimely. The State responds that the prosecutor was allowed under then-existing caselaw to file the amendment, so Cole’s counsel did not render ineffective assistance by declining to object. * * *

Cole has failed to establish that the post-conviction court erred. For the reasons stated above, we affirm the judgment of the trial court.

NFP civil decisions today (6):

David Heavrin, Jr. v. Sarina Kaufman Tearman (mem. dec.)

In re the Termination of the Parent-Child Relationship of: R.T., W.T, A.T., K.T., X.J., and A.J., M.C. (Mother) v. Indiana Department of Child Services (mem. dec.)

In the Matter of the Termination of the Parent-Child Relationship of I.L. (Child) and K.D.W. (Father); K.D.W. (Father) v. The Indiana Department of Child Services (mem. dec.)

City of Jeffersonville, Indiana, and City of Jeffersonville Sanitary Sewer Board v. Enviornmental Management Corporation (mem. dec.)

New Palestine Plaza, Inc. v. Richards Real Estate, LLC (mem. dec.)

Monique J. Hartley (Mansfield) and Mark J. Mansfield v. Amity Reading (mem. dec.)

NFP criminal decisions today (6):

K.G. v. State of Indiana (mem. dec.)

Jeffrey K. Mitchell v. State of Indiana (mem. dec.)

DeAndre Jordan v. State of Indiana (mem.dec.)

Michael A. Combs v. State of Indiana (mem. dec.)

Donald C. Newlin v. State of Indiana (mem. dec.)

Eric Haralson v. State of Indiana (mem. dec.)

Posted by Marcia Oddi on September 21, 2016 11:51 AM
Posted to Ind. App.Ct. Decisions

Ind. Courts - Court of Appeals hears dispute over "who owns the Lake Michigan beach?"

Dave Stafford of The Indiana Lawyer has good coverage today of the September 8th Court of Appeals oral argument in Don Gunderson, et al, v. State of Indiana, et al. The argument apparently was not covered by any other news service.

The ILB on May 18 had a long post on the then-upcoming argument. Here is the docket, and here is a link to the videocast of the September 8th COA oral argument.

Posted by Marcia Oddi on September 21, 2016 10:23 AM
Posted to Indiana Courts