Friday, January 23, 2015
Ind. Decisions - Supreme Court issues order late this afternoon in case of Muncie City Judge
In In the Matter of the Honorable Dianna L. Bennington, Judge of the Muncie City Court, a one-page order accepting the facts and discipline agreed to by the Commission on Judicial Qualification and Respondent, accompanied by the 18-page Statement of Circumstances and Conditional Agreement for Discipline, all justices concur:
Accordingly, Dianna L. Bennington is hereby PERMANENTLY BANNED from serving in any judicial capacity of any kind, including but not limited to service as a judge pro tempore, temporary judge, or private judge Within five (5) days of this Order, Respondent shall submit her resignation to the Governor, which resignation shall be effective immediately.According to p. 17 of the combined documents:
The parties agree that the appropriate sanction in this matter on Counts I, II, IV, V, VI, VIII, IX, X, XI, XII, and XIII is a permanent ban from judicial office but that Respondent should be permitted to retain her license to practice law.Here is a list of earlier ILB posts on the Muncie City Judge.
Ind. Decisions - Supreme Court suspends Carmel attorney without automatic reinstatement
In In the Matter of Ronald A. Safrin, a three-page, 5-0 order, the Court writes in part:
Count 1. Respondent maintained two attorney/client trust accounts ("Trust Accounts"), neither of which were registered as an Interest on Lawyers Trust Account ("IOLTA"). Respondent did not notify the banks that the Trust Accounts were subject to overdraft reporting to the Commission. On his Attorney Annual Registration Statements from 2008 through 2011, Respondent falsely stated that he was exempt from maintaining an IOLTA.ILB: See also this ILB post from a year ago where another Carmel attorney with the same last name had resigned from the bar.
Over several years, Respondent shared signatory authority for the Trust Accounts with another lawyer, who stole money from the Trust Accounts. This resulted in overdrafts, which were not reported to the Commission because the accounts were not registered as IOLTA accounts. By failing to properly register the Trust Accounts as IOLTA accounts, Respondent enabled the other lawyer to steal client funds from those accounts. * * *
Discipline: Respondent's repeated dishonesty in his Attorney Annual Registration Statements and in his communications with the Commission are serious ethical violations. "It is a perversion of the disciplinary enforcement mechanism when a lawyer intentionally places false statements of fact before the Commission." Matter of Shumate, 626 N.E.2d 459, 461 (Ind. 1993).
The parties propose the appropriate discipline is suspension for six months, without automatic reinstatement. The Court, having considered the submissions of the parties, now approves the agreed discipline.
For Respondent's professional misconduct, the Court suspends Respondent from the practice of law in this state for a period of not less than six months, without automatic reinstatement, beginning February 28, 2015. * * *
 The attorney who stole money from the Trust Accounts has resigned from the practice of law.
Ind. Decisions - 7th Circuit decides one Indiana case today, re duty to indemnify and defend
In Visteon Corporation v. National Union Fire Insurance (SD Ind., Young), an 11-page opinion, Judge Posner writes:
Visteon, a large manufacturer of automotive parts, with manufacturing facilities scattered around the world but its headquarters in Michigan, brought this diversity suit for breach of contract against the National Union insurance company. Visteon had bought a liability insurance policy from National Union providing worldwide liability coverage between 2000 and 2002. The policy contains an exclusion for liability resulting from pollution caused by Visteon, but the exclusion is expressly made inapplicable to liability arising from a “Completed Operations Hazard.” National Union has refused to indemnify or defend Visteon from suits arising from pollution caused by one of Visteon’s plants. * * *
The plant in question was in Connersville, Indiana. In 2001, and thus during the insurance coverage period, the powerful toxic solvent TCE that was used to clean machin-ery in the plant was discovered to have leaked into the soil and groundwater. Neighboring landowners sued Visteon for damages caused by the leakage. Visteon expended millions of dollars to settle the suits and additional millions to clean up the pollution that the leakage had caused. When National Union refused either to defend Visteon or to reimburse it for any of the costs it had incurred, Visteon filed this suit in an Indiana state court; National Union removed the case to fed-eral district court.
A dispute soon arose between the parties over whether Indiana or Michigan law governed the substantive issues in the case. Visteon wanted Indiana law to apply because Indiana does not enforce standard pollution-exclusion clauses, and the insurance policy included as we noted such a clause; Indiana requires that for such a clause to be enforceable the policy must “specify what falls within its pollution exclu-sion.” State Automobile Mutual Ins. Co. v. Flexdar, Inc., 964 N.E.2d 845, 851 (Ind. 2012). TCE is one of the pollutants that must be specified, and it was not specified in the policy that National Union had sold to Visteon. Michigan law, however, does enforce the more general kind of pollution-exclusion clause found in the policy, City of Grosse Pointe Park v. Michigan Municipal Liability & Property Pool, 702 N.W.2d 106, 114 (Mich. 2005), and so Michigan was National Union’s pre-ferred choice for the governing law. The district court ruled that Michigan law governed.
A second question addressed by the district court was whether, under Michigan law, Visteon’s liability from the TCE leak was within the scope of the Completed Operations Hazard clause of the insurance policy, an exception as we mentioned to the pollution-exclusion clause. The district court ruled that Visteon was not entitled to coverage under that clause and so dismissed Visteon’s entire suit. Having thus struck out in the district court, Visteon has appealed to us. * * *
[The present litigation] arises from the insurance contract between Visteon and National Union, and the contract is not limited to Visteon’s Connersville plant—it covers all of Visteon’s plants, the world over. The Indiana Supreme Court has decided that in the case of an alleged breach of a contract insuring against liability for environ-mental contamination that could occur at different sites, Indiana will follow what is called the “uniform-contract-interpretation approach,” which “applies the law of a single state to the whole contract even though [the contract] covers multiple risks in multiple states,” and the single state that is chosen will usually be “the state having more insured sites than any other.” National Union Fire Ins. Co. of Pittsburgh, PA v. Standard Fusee Corp., 940 N.E.2d 810, 813, 815–16 (Ind. 2010) (emphasis added). * * *
We’re left with Michigan. Its law, as the district court found, determines whether National Union is liable to Viste-on for the liabilities that Visteon incurred as a result of the contamination resulting from the leak of TCE from its Indiana plant.
The insurance policy excludes coverage for damages caused by “the actual or threatened discharge, dispersal, seepage, migration, release or escape of pollutants anywhere in the world”—which obviously encompasses the TCE leak. With Michigan enforcing pollution-exclusion clauses, Viste-on is left to argue that what happened in Connersville is within an exception (part of the Completed Operations Haz-ard clause that we mentioned) to the pollution-exclusion clause for damages “occurring away from premises you own or rent and arising out of … Your Work except … work that has not yet been completed or abandoned.” So the question is whether the TCE leaked by the Connersville plant was a result of completed “work.” * * *
All these cases hold that pollution arising from ongoing op-erations (including manufacturing, as in several of the cases cited above) isn’t covered by the Completed Operations Hazard clause, even though these are cases in which the insureds were completing their performance of particular sales contracts with customers.
We note finally that the pollution-exclusion clause is unambiguous, and therefore National Union had no duty to defend Visteon against the suits brought against it by neighboring landowners who experienced losses because of the leak of TCE from Visteon’s Connersville plant.
Visteon has failed to make a case. The judgment in favor of National Union is therefore AFFIRMED.
Courts - Audio of the oral argument last week of Indy attorney before the SCOTUS
Updating this ILB post from Jan. 15, here, via Oyez.org, is the audio of the Mellouli drug deportation appeal, argued by Indy attorney Jon Laramore before the SCOTUS on Wed., Jan. 14th, 2015.
Here is the SCOTUSblog case file.
Ind. Decisions - Court of Appeals issues 4 today (and 9 NFP)
For publication opinions today (4):
In Adam Nagel and Emily Nagel v. Northern Indiana Public Service Company, a 26-page opinion, Judge Barnes writes:
Adam and Emily Nagel appeal the trial court’s refusal to impose discovery sanctions against Northern Indiana Public Service Company (“NIPSCO”) and the trial court’s grant of summary judgment in favor of NIPSCO. We affirm in part, reverse in part, and remand. * * *Jerome Perry v. State of Indiana, a 4-page opinion, Judge Crone writes:
The trial court did not abuse its discretion in refusing to sanction NIPSCO with default judgment for its purported delays in providing discovery to the Nagels. However, the trial court erroneously granted summary judgment to NIPSCO. There are genuine issues of material fact as to whether NIPSCO owed Adam a duty of care and whether it breached that duty. We affirm in part, reverse in part, and remand for further proceedings.
Jerome Perry appeals the three years of home detention imposed by the trial court following his conviction for class D felony receiving stolen goods. Perry asserts that the trial court’s sentence does not accord with Indiana law and that his sentence should have been six months. Finding that the trial court properly applied the law in sentencing Perry, we affirm.In Dorvae Barnett v. State of Indiana, a 7-page opinion, Judge May writes:
Dorvae Barnett appeals the five-year enhancement of his sentence for Class C felony reckless homicide based on Barnett’s knowing use a firearm in the commission of that crime. Barnett presents two issues, which we restate as: 1. Whether the finding Barnett used a firearm was erroneous as a factual matter; and 2. Whether the finding that he used a firearm was improper as a matter of law.NFP civil opinions today (2):
NFP criminal opinions today (7):
Ind. Gov't. - Attorney General presentation before House Ways & Means yesterday
Yesterday, Jan. 22nd, the House Ways & Means Committee heard the biennial budget request of Attorney General Zoeller. (The AG did not make an earlier optional presentation before the State Budget Committee.)
AG Zoeller began his presentation by pointing out that Indiana is one of 6 states where the AG is a legislative officer, not a constitutional officer. Thus, he said, there is no two-term limit on the AG.
Some interesting points from the archived video of the testimony, which you may view for yourself:
At about 7:38 the AG says he is requesting an increase in general fund funding to cover the transfer of Dept. Child Services (DCS) appellate legal work "which we have now taken on in OAG, along with all the other appellate work. There is no appellate work that goes on anywhere in state government that is not part of our office."
Beginning at 15:20 Rep. Porter asks for an update on the tobacco settlement. The AG responds that "we did take a hit" of $120M/yr for the next 10 years. In response to another question, the AG replies that we did bring in a law firm to help with the arbitration. (ILB - If interested in this topic, you should listen for yourself.)
At 26:35 Rep. Klinker asks - "Does your office benefit from those various national AG settlements we read about. AG Zoeller's response begins, "We do." If the ILB understands correctly, it appears that such settlement money does not go to the general fund to be appropriated out by the General Assembly. The ILB is also unaware of any way to review these various settlements and an accounting of their disposition within state government.
No questions were asked dealing with the filing of amicus briefs in national cases and related issues.
Thursday, January 22, 2015
Ind. Courts - "La Porte County welcomes new judges"
From the Michigan City News-Dispatch, a story by Jessica O'Brien that reports:
MICHIGAN CITY — The changing of the guard in La Porte County courts was celebrated on Wednesday, recognizing the retirement of two judges and the robing of four incoming judges.
The ceremony recognized the retirements of Judges William Boklund of La Porte County Superior Court No. 4 and Kathleen Lang of Superior No. 1. Both chose to step down at the end of their terms in December, retiring from the bench and now serving as senior judges. * * *
The four incoming judges were ceremonially robed in the courtroom on Wednesday, signifying their transition into judgeship – all either elected or appointed to their positions late last year.
Judge Greta Friedman of La Porte County Superior Court No. 4 received her robe from husband, Shaw Friedman; Judge Michael Bergerson of La Porte County Superior Court No. 1 from son, Michael Bergerson; Judge Jeffrey Thorne of La Porte County Superior Court No. 3 from Senior Judge Steven King; and Magistrate Pamela Munsey from daughter, Kaylen Krause.
Ind. Gov't. - "Sunday alcohol sales campaign manager charged with drunken driving"
So reports Tony Cook this afternoon in the Indianapolis Star. Some quotes:
Megan Robertson, the Republican political operative who was hired to run the campaign to legalize Sunday carryout alcohol sales, is facing drunken driving charges after police say her vehicle crashed into a Near Eastside fast food restaurant on Christmas Eve. [ILB emphasis]Ms. Robertson earlier headed Freedom Indiana which last session led the fight against a constitutional amendment prohibiting gay marriage.
Robertson, 32, lost control of her Chevrolet Equinox and struck a Hardee's restaurant at 921 E. Washington St., according to a probable cause affidavit. Robertson told police she was on her way home from a Fountain Square bar at about 1 a.m. after drinking two beers.
A breathalyzer test later showed she had a blood alcohol content of 0.168 percent, the affidavit said. That is more than twice the legal limit of 0.08 percent for driving in Indiana. * * *
Robertson was hired late last year to help run the campaign to repeal Indiana's ban on Sunday alcohol sales at grocery, liquor, convenience and drug stores. The campaign is being led by Hoosiers for Sunday Sales, a coalition of national grocery chains and business groups such as the Indiana Chamber of Commerce.
A long post at the blog Advance Indiana includes: "Robertson has a string of prior traffic arrests for speeding, failure to wear a seat belt and operating a vehicle while her driver's license was suspended, the most recent of which occurred on September 25 of last year."
Here is an expanded version of the Star story at Fox59.
Ind. Gov't. - More on: General Assembly will hold voluntary ethics training session today
A veteran lawmaker who oversees education in the Indiana House of Representatives has formed a lobbying company to represent education clients, raising potential ethical questions at a time when state lawmakers are considering sweeping new ethics rules.The story notes:
House Education Chairman Robert Behning, R-Indianapolis, formed Berkshire Education Strategies last June, and has continued leading the House education committee since then. Behning said Wednesday that he is looking to represent student testing company Questar in Oklahoma and would like to sign up more clients. But he added that he was doing everything possible to ensure he only represents clients out of state, and not in Indiana. * * *
Behning said he is looking to sign up more clients, but said he did not see a problem because the work would not directly coincide with his role running the Indiana House Education Committee. He said that he had a draft contract for Questar prepared by an ethics lawyer at Barnes and Thornburg and that he submitted it to members of the House Ethics Committee for consideration.
Behning said Questar flew him to its Minneapolis headquarters for two days of discussions three months ago, but he emphasized that he has not signed any contract with Questar yet and is awaiting word from the ethics panel.
House Speaker Brian Bosma, R-Indianapolis, said he "discouraged" Behning from trying to sign up any education clients, but also said he could not tell lawmakers what to do in their private lives.
"We don't dictate to people what they do in their private business lives," Bosma said. "We can encourage or discourage it. I'd say we discouraged this one. But citizen legislators are free to engage in the business activities they choose to engage in."
Bosma noted that new rules require lawmakers to recuse themselves from any action when they have a personal or business interest at stake. He said that if one of Behning's clients from out of state were to appear before his committee in Indiana, it would be hard for Behning, as chair of the committee, to completely separate himself from the situation.
Behning's decision to start a lobbying firm comes at a sensitive time for House lawmakers, who are considering ethics reform in the wake of a trio of Statehouse scandals involving former House Speaker Pro Tem Eric Turner, former Indiana Department of Transportation Chief of Staff Troy Woodruff and former Superintendent of Public Instruction Tony Bennett.In a story this afternoon, LoBianco writes:
Bosma, R-Indianapolis, has made ethics reform a centerpiece of the House Republican agenda this session. He also called in the director of the National Conference of State Legislature's ethics program to run a one-hour training program with lawmakers last week.
House Speaker Brian Bosma, R-Indianapolis, said new ethics rules and a reform measure are aimed at the exact questions raised by Behning's actions.
"This is precisely the type of thing that we're trying to bring to light, both for the public and to the members of the ethics committee. I didn't know we were going to have a dry run on it so quickly," Bosma said Thursday.
Ind. Law - Watch out for new improved variations on "foreign clients with cashiers' checks" scam
Ted A. Waggoner writes today to the ISBA General Practice, Solo and Small Firm Section:
I have spoken with a lawyer in Indiana, who came way too close to falling for what the lawyer describes as a well designed and elaborate scam.ILB: See also this Aug. 7, 2012 ILB post headed "Despite Warnings, Lawyers Still Fall for Collection Scam," and its links.
He was ready to open a non-IOLTA trust account, when the banker asked to see the check drawn on Chase Bank. The check was a fraudulent Cashier's Check, drawn on a phony account, but through the name of a European business that did check out.
The lawyer does business work and knew to run the traps on such items, but between the website, LinkedIN accounts, etc. so was rattled by the quality of the scammers.
The banker said that was the second such check they had seen from a lawyer that day. IF you have been involved in something like this, call Chase and the Police.
Be careful, be very careful.
Ted A. Waggoner
Peterson Waggoner & Perkins, LLP
Ind. Gov't. - "Backlog of records crowding Miami Co. Courthouse"
Carson Gerber reported Wed. in the Kokomo Tribune:
PERU – Storage space is starting to run out at the Miami County courthouse due to a backlog of court documents.
Miami County Clerk Tawna Leffel-Sands said eight years worth of records, including marriage certificates, court filings and voter information, is packed away in boxes that are stacked in hallways, attics and offices, and it’s starting to pile up.
“I’ve got books and files strewn all over this courthouse and I can’t get rid of them,” she said. “I’m running out of room.”
The reason? The state requires counties to hold on to official documents for a specific period before they can be placed on microfilm and destroyed.
Leffel-Sands said a Miami County addendum to state code requires the clerk’s office to keep records for 5 years before they can be microfilmed.
She said the county used to microfilm its own documents, but that stopped happening in 2007, when the machine broke and was never replaced.
Since then, the county has held onto every document filed in the clerk’s office.
To clear up space, the county could pay the state or hire an outside company to microfilm the documents. But with thousands of books and records to be scanned, it wouldn’t be cheap.
Leffel-Sands estimates it would cost $500,000 to have every document microfilmed. Just microfilming the marriage books would cost $18,000, she said.
Having recently cut $1.5 million from its 2015 budget due to a severe revenue shortfall, Miami County doesn't have that kind of money.
Leffel-Sands said the county could save money by microfilming records in house, but her office doesn’t have the equipment or the manpower to do it after two full-time positions in the clerk’s office were eliminated during the budget cuts.
“I don’t see our office ever doing this,” she said.
Ind. Decisions - Court of Appeals issues 4 today (and 7 NFP)
For publication opinions today (4):
In Sin-Mi Ward v. University of Notre Dame, an 11-page opinion, Sr. Judge Sharpnack writes:
Sin-Mi Ward appeals from an order of the Worker’s Compensation Board (“the Full Board”) deciding her application for adjustment of claim against the University of Notre Dame (“Notre Dame”) for disability benefits arising from a work related injury. The Full Board adopted the findings and decision of the single hearing member awarding Ward permanent partial impairment (“PPI”) benefits after finding that she had reached maximum medical improvement from her injury. We affirm.In Daniel Lee and Hui Luo Lee v. GDH, LLC , a 16-page opinion, Sr. Judge Sharpnack writes:
Daniel Lee, a plumber, was injured on the job at a construction site. He and his wife, Hui Luo Lee, sued several companies involved in the construction project, including GDH, LLC. The Lees appeal the trial court’s grant of summary judgment in favor of GDH. We affirm.In Brian Weigel v. April Weigel, a 9-page opinion, Sr. Judge Sharpnack writes:
Brian Weigel appeals the trial court’s valuation of his hoof trimming business upon the dissolution of his marriage to April Weigel. * * *In Arthur Barnard III v. Menard, Inc.; Menard, Inc., and Blue Line LP, Inc. v. Capitol Specialty Insurance Corp., a 21-page opinion, Judge Baker writes:
For the reasons stated, we conclude that the trial court neither abused its discretion in valuing the hoof trimming business nor in ordering Brian to pay a portion of the expert’s fee for valuation of the business and presentation of testimony at the final hearing. Affirmed.
Arthur Barnard was allegedly physically attacked by a Blue Line loss prevention officer outside a Menard store. The loss prevention officer suspected that Barnard had stolen something from the store. Barnard was injured and incurred medical expenses as a result of the incident. He filed a complaint against Menard and Blue Line, and Menard and Blue Line later filed third-party complaints against their insurer, Capitol Specialty Insurance Corporation (Capitol), invoking the insurer’s duties to defend and indemnify. The trial court granted summary judgment in favor of Menard on Barnard’s complaint and in favor of Capitol on the third-party complaints.NFP civil opinions today (1):
We find no error in the summary judgment order in favor of Menard on Barnard’s complaint. With respect to the third-party complaints against Capitol, we find that it was erroneous to grant summary judgment in favor of Capitol and that, instead, summary judgment should have been entered in favor of Menard and Blue Line with respect to Capitol’s duty to defend. Therefore, we affirm in part, reverse in part, and remand for further proceedings.
NFP criminal opinions today (6):
Ind. Decisions - Supreme Court decides one today
In Jason Young v. Hood's Gardens, Inc., a 6-page, 5-0 opinion, Justice Dickson writes:
When a person engages a contractor for the performance of work exceeding $1,000 in value but fails to take certain steps to assure that the contractor complies with the Indiana Worker's Compensation Act, that person is secondarily liable to the same extent as the contractor for worker's compensation benefits payable to an employee of the contractor injured in an accident arising out of and in the course of the contracted-for work. This case presents an issue of first impression: whether the predicate $1,000 in value is determined solely by the amount of money paid to the contractor or also includes the value of other consideration received by the contractor in connection with the services provided. We hold that the $1,000 monetary threshold may include the ascertainable value of ancillary consideration received by the contractor. * * *
To prevail on its motion for summary judgment, the business must establish that the tree removal work for which it hired the contractor had a value of $1,000 or less and that this fact was free of factual dispute. Under the applicable statute, the value of this work is to be determined by considering both the monetary payment and ancillary consideration received by the contractor, namely the $600 contract price and the value of the wood received. As the moving party, the business failed to designate evidence establishing that the undisputed value of the ancillary con-sideration (the wood received) plus the $600 monetary payment did not exceed $1,000. Furthermore, the plaintiff designated testimony by the contractor that the value of the wood received was more than the $600 received. The business was not entitled to summary judgment.
Conclusion. We conclude that the "value" attributable to the performance of work that triggers secondary liability under Indiana Code section 22-3-2-14(b) includes both direct monetary payment as well as any ancillary consideration received for the work. Finding a question of fact as to the value of the wood received by the contractor Discount Tree Extraction in connection with the performance of its work, we reverse the grant of summary judgment to the business, Hood's Gardens, and remand for further proceedings.
Ind. Gov't. - "Repeal of wine shipment rules heads to Senate"
The Senate Public Policy Committee voted 9-0 to repeal a requirement established in 2006 that consumers make a face-to-face purchase at a winery before ordering online or by mail.
The requirement has been in place since 2006, when a sticky compromise was reached creating a direct wine shipper’s permit.
“This is a win for your constituents,” said Lisa Hayes, lobbyist for the Indiana Winery and Vineyard Association. “The law hasn’t worked. Technology has changed. The environment has changed.”
Sen. Phil Boots, R-Crawfordsville, the author of the bill, said allowing remote wine shipping will help Indiana wineries that are hamstrung by the face-to-face requirement. And he said there is ample provision in the bill to require verification of a person’s age.
But those representing the other parts of the so-called three-legged stool of alcohol in Indiana – the wholesalers and direct retailers – oppose the bill. * * *
The hearing was highlighted by the issue’s complicated history.
Indiana wineries shipped their products directly to customers for decades. But in May 2005, the Alcohol and Tobacco Commission issued an enforcement bulletin saying the practice was illegal.
The bulletin was in response to a U.S. Supreme Court ruling that states cannot treat in-state and out-of-state wineries differently. And because it was against Indiana law for out-of-state wineries to ship to Indiana customers, the in-state wineries lost that perk as well.
Lawsuits were filed, and eventually lawmakers created the direct wine shipper’s permit, which is available to Indiana wineries as well as those in other states. The stated purpose was to ensure that buyers are of legal age, but it also favored in-state wineries in theory.
But Hayes said that isn’t what happened. Instead, of the existing 172 direct seller permits, only 19 are held by Indiana wineries. That means many out-of-state wineries have taken advantage of the law.
“Indiana wineries got hurt in 2006,” she said. “We will grow with this.”
Senate Bill 113 – which now goes to the full Senate – requires customers to provide their name, valid delivery address and telephone number, and proof from a state or federal issued government ID that the consumer is at least 21.
The proof of age can be faxed, emailed, scanned or provided in person or by a third-party vendor. Consumers also can provide a statement under penalty of perjury.
Indiana Decisions - More on: The Emily Herx case isn't over yet
The local Roman Catholic Diocese wants a judge to toss out the recent jury verdict awarding a former teacher hundreds of thousands of dollars in a discrimination case.And today in a new story Green reports in part:
In paperwork filed late last week, attorneys for the Fort Wayne-South Bend Catholic Diocese asked U.S. District Judge Robert L. Miller Jr. to rule in their favor.
They argued there was insufficient evidence presented during the trial showing that the church discriminated against former language arts teacher Emily Herx when officials at St. Vincent de Paul Catholic School declined to renew her contract after she underwent a third round of in vitro fertilization.
No reasonable jury, they contend, could have found in Herx’s favor given the evidence her side presented at trial. * * *
The week before Christmas, a federal court jury agreed with her, awarding her a total of $1.9 million, including $1.75 million for compensatory damages for pain and suffering; $125,000 for medical care; $75,000 for lost wages and benefits; and $1 for punitive damages.
This month, Miller reduced the amount of the judgment to a total of $543,803. That figure was not nearly as low as had been requested by the diocese.
In their motion, diocesan attorneys argue in much the same way that they argued throughout the case at the district and appellate court levels: that Herx not only failed to present sufficient evidence to prove gender discrimination took place, but that the decision not to renew her contract was religiously based and not one a jury should weigh in on.
“It was for the Church to decide whether Herx’s contract should be non-renewed for failing to comply with Church teachings, not a court or jury,” diocesan attorneys argued.
In confronting similar arguments earlier in the case, Herx’s attorneys contested that the religious views of her employers did not trump Herx’s right to try to become pregnant through whatever method she chose.
Herx’s attorneys argue that she was the victim of discrimination because the church did not approve of the manner in which she tried to get pregnant.
“The (Civil Rights Act) must protect the rights of women to attempt to have children through all methods,” her attorneys wrote in their response to the earlier motion for summary judgment.
“Otherwise, it would allow employers to substitute their judgments for those of their employees’ doctors and give them the right to ban certain types of medical procedures.”
If U.S. District Judge Robert Miller wasn’t going to set aside the verdict, diocesan attorneys argued for a new trial on the amount of money awarded.
So Herx’s attorneys filed a response to that, reiterating again all the reasons that they won at the summary judgment stage, won at the appellate level and won at trial. * * *
In documents filed late Wednesday, Herx’s attorneys said the jury’s verdict was fully justified.
“The Diocese ignores critical evidence including, most importantly, (Rev. John) Kuzmich’s admission at trial that ‘Herx had the option of either continuing the treatment and losing her job or stopping the treatment and losing the chance at a pregnancy,’ ” wrote Kathleen DeLaney.
“This admission alone is enough evidence for a jury to conclude that the Diocese discriminated against Herx on the basis of her gender and attempts to become pregnant.”
Wednesday, January 21, 2015
Ind. Gov't. - "ESPN sues Notre Dame over police records"
Margaret Fosmoe has just posted to the South Bend Tribune a long story that begins:
SOUTH BEND — ESPN has filed a lawsuit against the University of Notre Dame claiming the university violated Indiana's public records law by refusing to release campus police records.ILB: Readers may recall this Dec. 19, 2014 post, quoting an earlier Fosmoe story on the public access counselor's opinion. A PAC opinion, as it turns out, was issued to ESPN on Oct. 31, 2014 and another on Jan. 5, 2015.
The suit alleges that Notre Dame officials violated Indiana's Access to Public Records Act by refusing to release Notre Dame Security Police records requested by ESPN. The case was filed Jan. 15 in St. Joseph Superior Court.
The suit was filed on behalf of ESPN Inc., the sports media company based in Bristol, Conn., and ESPN reporter Paula Lavigne, who requested the records.
Lavigne in September and November 2014 made formal requests to Notre Dame for police incident reports and logs related to student athletes, but was turned down both times.
As evidence in the lawsuit, ESPN submitted two written opinions by Indiana Public Access Counselor Luke Britt.
From Fosmoe's story today:
Early this month, Britt — an attorney appointed by Indiana's governor to advise on public access matters — issued an opinion stating Notre Dame has violated Indiana's public records law if it has withheld police records requested by ESPN about possible campus crimes.
That came several weeks after Britt initially put Notre Dame on notice about its handling of police records after complaints filed by ESPN and the South Bend Tribune. In the earlier opinion, Britt said he believes the Notre Dame Security Police fall under the jurisdiction of Indiana's public records law, and should comply fully with the law, just like other professional police departments in Indiana. Britt also said his opinion applies to police departments operating at other private universities in Indiana.
In his earlier opinion, Britt wrote that NDSP has the same requirements to maintain and release public records as all other police agencies in the state.
"The police force is established by the governing body of a private institution, but their powers come from the state of Indiana. I am not comfortable saying an organization can hide behind the cloak of secrecy when they have the power to arrest and create criminal records and exercise the state's police powers," Britt wrote at the time.
Three previous access counselors had issued opinions stating that professional police departments at Indiana private universities did not meet the definition of public agencies and thus were exempt from the state's public records law.
Courts - "Federal Appeals Court Slapped Over Lengthy ‘Unpublished’ Ruling"
Tony Mauro, The National Law Journal, reports today in a long story that begins:
U.S. Supreme Court Justice Clarence Thomas on Tuesday sharply criticized a federal appeals court for issuing a lengthy opinion that was nonetheless unpublished, which he called a "disturbing aspect" of the case before the high court.Mauro's story ends:
The comment could revive a decades-old debate over so-called "unpublished opinions" of appeals courts, which are sometimes cursory and don't have precedential value. According to the most recent statistics available, 88 percent of the 37,820 opinions issued by federal appeals courts in 2013 were categorized as "unpublished"—a misnomer because most are actually available through the court that issued them or through online data services.
Thomas, joined by Justice Antonin Scalia, criticized the U.S. Court of Appeals for the Fourth Circuit for issuing a 39-page unpublished opinion after full briefing and argument. That did not meet established criteria for issuing unpublished opinions, Thomas said.
"By any standard—and certainly by the Fourth Circuit’s own—this decision should have been published," Thomas wrote.
Thomas added, "It is hard to imagine a reason that the Court of Appeals would not have published this opinion except to avoid creating binding law for the circuit."
Controversy over unpublished opinions divided the federal judiciary a decade ago, with judges—including the Ninth Circuit's Alex Kozinski—arguing that ending them would vastly increase the workload of judges by requiring them to put more research into even the most cursory rulings.ILB: That is the same proposal that the Indiana Supreme Court last year turned down, one that would not have ended the NFP practice, but that would have permitted Indiana attorneys to cite unpublished opinions. (The ILB has for years urged that NFP opinions be eliminated entirely.)
But the late Judge Richard Arnold of the Eighth Circuit and others argued that issuing decisions without precedential value was unconstitutional.
In 2005 the Supreme Court issued a rule that did not end the practice, but said lawyers could cite unpublished opinions. That did not stem the flow of unpublished opinions in most courts.
Here, via The National Law Journal, is Justice Thomas' language on the "unpublished" issue:
True enough, the decision below is unpublished and therefore lacks precedential force in the Fourth Circuit. Minor v. Bostwick Labs., Inc., 669 F. 3d 428, 433, n. 6 (CA4 2012). But that in itself is yet another disturbing aspect of the Fourth Circuit’s decision, and yet another reason to grant review. The Court of Appeals had full briefing and argument on Austin’s claim of judicial vindictiveness. It analyzed the claim in a 39-page opinion written over a dissent. By any standard—and certainly by the Fourth Circuit’s own—this decision should have been published. The Fourth Circuit’s Local Rule 36(a) provides that opinions will be published only if they satisfy one or more of five standards of publication. The opinion in this case met at least three of them: it “establishe[d] . . . a rule of law within th[at] Circuit,” “involve[d] a legal issue of continuing public interest,” and “create[d] a conflict with a decision in another circuit.” Rules 36(a)(i), (ii), (v) (2015). It is hard to imagine a reason that the Court of Appeals would not have published this opinion except to avoid creating binding law for the Circuit.
Ind. Decisions - Tax Court posts 11 opinions dated Jan. 20th
The Tax Court has posted 11 separate 9-page opinions, all of them granting the Marion County Assessor's motions to dismiss, and except for the names of the petitioners, all appear to have the same wording, ending with:
In challenging the Indiana Board’s interlocutory order, _____’s appeal falls into a class of cases that the Court does not have jurisdiction to hear. See Ispat Inland, 784 N.E.2d at 482. To the extent that _____ has not established that extraordinary circumstances excuse it from exhausting its administrative remedies, the Court hereby GRANTS the Assessor’s Motion to Dismiss For Lack of Jurisdiction and REMANDS the matter to the Indiana Board for action consistent with this opinion.Here are the opinions:
[Updated 1/23/15] For more, see this article by Brent Auberry at JDSupra.
Ind. Decisions - Court of Appeals issues 0 today (and 5 NFP)
For publication opinions today (0):
NFP civil opinions today (2):
NFP criminal opinions today (3):
Ind. Courts - New federal magistrate for SD Indiana
From the news release:
INDIANAPOLIS, Indiana (January 21, 2015): The Honorable Richard L. Young, Chief Judge of the United States District Court for the Southern District of Indiana, is pleased to announce the selection of New Albany attorney Van T. Willis as part-time United States Magistrate Judge. * * *
Once appointed, he will fill the vacancy created by the passing of The Honorable Michael G. Naville, who served the court from November 1995 to September 2014.
As the Magistrate Judge in the New Albany Division of the Southern District of Indiana, Mr. Willis will preside over preliminary criminal proceedings in that division. He will also continue in the private practice of law as a senior partner with the firm of Kightlinger & Gray, LLP. He has been with the firm since 1991, and his primary areas of practice are civil rights, corporate and business law, employment, insurance defense litigation, trademark and copyright infringement, and worker’s compensation. Prior to joining Kightlinger & Gray, from 1989 to 1991, Mr. Willis served as a law clerk to United States District Judge Gene E. Brooks.
Ind. Courts - "CJ Rush's forward-thinking plans" and some ILB thoughts about e-filing
This editorial appears in today's Fort Wayne Journal Gazette [ILB emphasis added]:
No matter how it turned out, the State of the Judiciary speech last week by Indiana Chief Justice Loretta Rush would have been of special note. Appointed last August, Rush is the first woman to lead the state’s high court, and this was her first chance to lay out her hopes and plans to improve the judicial system.WISHTV 8 reported last evening [ILB emphasis added]:
Rush reassured her audience that “your Indiana judiciary is strong.” But she went on to outline some ideas for the court to “stay modern and responsive.”
She asked the legislature for help funding an e-filing system for courts statewide that could be used to file and share documents digitally. The Journal Gazette’s Niki Kelly reported that the cost might be $5 million.
But the increased speed and ease of access that such a system would bring to legal business in Indiana could justify the cost, especially if it could be user-funded by a small increase in court fees.
As Rush pointed out, the proposal will have a positive effect on Indiana’s business climate, as would her proposal to create a system of business courts to “bring together judges experienced in handling business and commercial law cases to preside over a specialized docket.”
Among those Rush credited with developing the business court idea was Allen Superior Court Judge Craig Bobay.
In the Indiana Forefront blog, former Indiana Supreme Court Justice Ted Boehm wrote approvingly of Rush’s proposal. Noting that it may take awhile for the details of the plan to emerge, Boehm said such courts are blossoming and evolving in other states, including Michigan. “Many business courts now handle a variety of forms of complex litigation,” he wrote. “Typically, any lawsuit between two businesses, even if only a contract dispute, is deemed a ‘business’ case, and many states add specific subject matters such as securities litigation.”
Typically, “business court” is not a single, statewide court, but a subset of designated judges in high-traffic areas of the state, according to Boehm. “Experience in other states seems to establish that there is a benefit to having experienced judges handling cases involving extensive discovery, multiple parties or subject matters that come along only infrequently.”
Rush also used her speech to celebrate and encourage other types of specialty courts that concentrate on offering help to people with special circumstances and needs, such as foster-care programs for children, drug courts and veterans courts.
Allen County has been among the leaders in those courts, starting a veterans court last year.
Rush’s calls for innovation and better use of technology made for an auspicious debut of the new leader of the state’s judiciary.
Major changes could be coming to courthouses across Indiana, designed to make life a little easier.An earlier, May 22, 2014 story in the Indianapolis Star, by Tim Evans, reported:
Chief Justice Loretta Rush wants to do away with paper shuffling and go electronic. A Supreme Court technology team is moving the effort forward. They hope to make all court records available online, for all 92 counties in the state.
“The Facebook generation does almost all of its important business online,” said Court of Appeals Judge, Paul D. Mathias. “We think court business is some of the most important business to make accessible online.”
If the court receives funding from the General Assembly, they’ll move forward with five pilot programs across the state. Their ultimate goal is to put e-filing in place with no extra fees for customers and little to no cost at the local level.
“With e-filing and the consequences of e-filing, you won’t have to go to the courthouse,” said Justice Steven David with the Indiana Supreme Court.
The new system will help everyday people, attorneys and clerks.
“I think e-filing would be great,” said attorney Julie Andrews. “Probably conserve some paperwork and legwork. If it’s e-filing, it’s immediate.”
Another Indiana attorney agrees, “Anything we file with the federal government is easier because it’s e-filing, rather than physically coming over here to do it.”
Across the country, 15 to 20 other states are already pushing papers out the door. Indiana leaders are closely looking at the current model in Texas.
Judge Mathias says e-filing in the courts is just the latest entity to switch over.
“When you look at Bureau of Motor Vehicles, you look at services they provide online. Hunting and fishing licenses can be obtained online,” said Judge Mathias. “All of these things are a new, basic level of electronic access that this generation has come to expect.”
Right now there is no specific timeframe, everything will depend on how much funding they can get from the General Assembly. Talks in both houses are ongoing.
Indiana court officials spent more than a decade investigating e-filing opportunities and have monitored pilot projects in Marion and Lake counties.ILB thoughts: The ILB strongly supports the concept of e-filing. It is unquestionably the way to go. But so far, few details have been provided, and we have seen no hard $$ numbers, nor where the $$ would come from.
“The court is appreciative of the ground work completed by the pilot counties,” said Indiana Supreme Court Justice Mark Massa, who chairs technology projects for the courts. “The initial work demonstrates that e-filing is beneficial to litigants, lawyers, judges, clerks and their staffs.”
Court officials did not release cost estimates for the project. Indiana Court of Appeals Judge Paul D. Mathias, who chairs a committee established in 2006 to look at the transition to e-filing, said a number of options for covering the cost are being investigated. Among them: user fees and cost savings. * * *
The next step for state officials is to seek bids for an e-filing manager to provide the centralized system for accepting filings and getting documents to the appropriate court system. That manager will be required to work with multiple e-filing service providers that operate the front-end systems attorneys will use to get documents to the e-filing manager. The division of state court administration will coordinate the process, including certification of those front-end providers.
The e-filing manager selected for the project also will be required to maintain a basic filing system for indigent Hoosiers.
“We will not,” Mathias said, “allow e-filing to be a barrier to access to the court system.”
In her presentation before the State Budget Committee on Dec. 17th, Chief Justice Rush said the state-wide license for e-filing would be $5.1 million. Is that one-time or annually? And it would seem there have to be other costs involved in implementing electronic filing statewide in addition to the license to utilize the vendor's software.
Of course, there may also be savings in eliminating paper - which raises the question, will these records be entirely electronic, or will there be backup paper files? And will printers simply replace copiers in creating paper copies for those reviewing the documents?
There is mention of a fee increase to finance electronic filing. What are the details, to whom would it apply? Would this be in addition to the $2.00 increase in the Automated Recordkeeping Fee the Court is requesting in order to keep it at its current $7.00 level? It is currently scheduled to go to $5.00 on 7/1/15. (An ILB post titled "Changes to the Annual Automated Record Keeping Fee Through the 21st Century" is planned.)
Another important question: How would electronic filing impact public access? Would the public be able to more easily access documents filed at the trial level? Right now the public can track the progress of cases in many counties online at no cost using MyCase, but obtaining, for example, a copy of a complaint, or a court ruling, is a different matter. Many courts in Indiana currently charge $1.00/page for paper copies of documents provided at the Courthouse. (See this 1/16/14 Supreme Court order of a model for providing copies of electronic documents approved for Henry County.)
At the appellate level, electronic copies of the opinions of the Court of Appeals and Supreme Court have been available for a number of years at no charge. But briefs, motions, and many orders are not electronic and are $1.00/page at the Statehouse.
In contrast, you currently can electronically access the dockets and all non-confidential documents filed in the federal courts via PACER. The cost to the public is $0.10/page, which many national writers argue is prohibitive.
Ind. Gov't. - Bill to raise service of process fees now on 3rd reading in Senate
In a long Washington Ind. Times-Herald story from Jan. 16th, Mike Grant reported:
The bill, SB 217, is now on third reading in the Senate. From the digest:
Daviess County Sheriff Jerry Harbstreit is beginning his fourth term as the county's top cop and most of his energy during that time behind the badge has been about enforcing the law. Now, with Harbstreit also serving as President of the Indiana Sheriff's Association he is also putting his voice to testimony before the Indiana legislature that most likely will change some of those laws.
Earlier this week he went before an Indiana Senate Committee looking to change the money sheriff's departments get paid for the delivery of legal papers. "This law was last changed in 2006," said Harbstreit. "Then it raised the service fee from $12 to $13. The bill before the Senate now would raise that amount to $25. When you consider that many surrounding states charge up to $60 this proposal is reasonable."
Harbstreit was testifying as President of the Sheriff's Association. He points out that the Indiana Association of Counties is also supporting the bill that will put an additional $2.4 million into county general funds around the state. The bill, sponsored by Senator Phil Boots of Crawfordsville, was approved in committee by a 7-2 vote and will return to the full Senate for second reading.
The paper service bill is part of a much larger agenda the Indiana Sheriff's Association is trying to move through the General Assembly during this session.
Requires a sheriff to collect a service of process fee of $25 instead of $13 from a party requesting service of a writ, an order, a process, a notice, a tax warrant, or any other paper completed by the sheriff. Provides that a sheriff may collect an additional fee for post-judgment service.
Ind. Gov't. - Direct wine sales bill being heard in committee this afternoon
[Updated at 1:18 PM] Niki Kelly of the FWJG has a story about the upcoming hearing here.
Tuesday, January 20, 2015
Ind. Law - IU McKinney among the campuses that excel in producing national lawmakers
That according to a long article by Karen Sloan in The National Law Journal. Here are some quotes about McKinney (my school):
More than half of the top 20 Congressional feeder law schools are public institutions with strong regional reputations that supply large portions of their home states' congressional delegations. For example, the University of Alabama School of Law, the University of Kentucky College of Law and the University of South Carolina School of Law each have four alumni in Congress, all representing the states where they studied law.
U.S. Rep. Andy Barr (left), a Republican 2001 graduate of Kentucky Law, credits a strong alumni network with helping position the school's graduates for leadership. "Not only did I receive a great legal education there, but you meet a lot of people who end up practicing all over the commonwealth of Kentucky and you develop those personal and professional relationships," Barr said. "You continue that throughout your career."
Indiana University Robert H. McKinney School of Law is another example of a regional school that serves as a pipeline into Congress. It has four alumni serving there, comprising more than one-third of Indiana's delegation.
McKinney is in an ideal position to produce leaders as the only law school in the capital city of Indianapolis and more than 80 percent of its students come from within the state, dean Andy Klein said. The school has a robust law and state government program, each year placing between 40 and 50 students in externships within state government, he said.
"We train more than 50 percent of the lawyers who practice in the state of Indiana," Klein said. "Our connection to state government and our exclusivity in the capital city means that our graduates hold leadership positions in Washington and throughout the state." In addition to its three House members and U.S. Sen. Dan Coats, also a Republican, Indiana McKinney can claim the governor, attorney general and three of five state Supreme Court justices as alumni.
McKinney works hard to keep alumni involved and invites them back to campus to help inspire the next generation of students, said U.S. Rep. Susan Brooks, a Republican who graduated in 1985 and now serves on the law school's board of visitors.
"Those that graduate, I would say, were always encouraged to give back to law students and to provide them with opportunities," Brooks said. "I've hired a lot of law students as interns in every position I've had. I created an internship program within my congressional office at home for law students."
While delivering McKinney's commencement address last year, Brooks encouraged students to keep in contact with the school and their classmates because they're likely to become the next wave of Indiana leaders. * * *
And the lawyers in Congress arrived from many different career paths within the profession, Brooks said. She pointed to the lawyers in Indiana's delegation who have worked in private practice, as federal prosecutors and as Indiana's secretary of state, among other jobs. One — Coats — served as U.S. ambassador to Germany.
That said, serving in Washington with three other McKinney alumni has its perks, Brooks said. "It does add a bit of camaraderie among our delegation," she said. "We all passed through those doors."
Ind. Decisions - Richmond attorney and former law blogger suspended
In three rulings dated Jan. 16, 2014, in In the Matter of Edward T. Kemp, the Court has ordered:
- 89S00-1408-DI-549 - that Respondent be suspended from the practice of law for noncooperation with the Commission, effective immediately.
- 89S00-1409-DI-581 - that Respondent be suspended from the practice of law for noncooperation with the Commission, effective immediately. * * * Finally, recognizing the imposition of costs against Respondent in a separate order being issued today in Matter of Kemp, No. 89S00-1409-DI-549, the Court declines to separately order a reimbursement of costs in this matter.
- 89S00-1409-DI-582 - same as 581.
[More] Here is Kara Kenney's report on WRTV6.
Ind. Courts - Still more on: Which appellate jurists would be able to serve until age 80 under SB 12?
Updating this ILB post from Jan. 8, SB 12, which would extend the retirement age for certain members of the Supreme and Appellate court to age 80, is eligible for 3rd reading today. The Senate convenes at 1:30.
Ind. Decisions - Court of Appeals issues 1 today (and 6 NFP)
For publication opinions today (1):
In Jeri Good v. Indiana Teachers Retirement Fund, a 9-page opinion, Judge Crone writes:
Jeri Good was a member of the Indiana Teachers Retirement Fund (now a part of the Indiana Public Retirement System (“INPRS”)) for twenty-nine and a half years and left her INPRS-covered job. Five months later, she purchased a half-year of additional service credit from INPRS, which made her eligible to receive retirement benefits starting at age fifty-five based on thirty years of service. Shortly before she turned fifty-five, Good contacted INPRS to ask about the consequences of delaying her application for retirement benefits. An INPRS employee told Good that her benefits would be paid retroactively but failed to inform her that, pursuant to statute, they could be paid retroactively only up to six months before her application date. Based on the information provided by the INPRS employee, Good delayed filing her application for one year and requested benefits retroactive to her fifty-fifth birthday. INPRS determined that she was entitled to only six months of retroactive benefits. Good filed an administrative appeal, which was decided in INPRS’s favor. She then petitioned for judicial review of that decision, which the trial court affirmed.NFP civil opinions today (1):
On appeal, Good does not dispute that Indiana law limits an INPRS member to six months of retroactive retirement benefits. Instead, she contends that she is entitled to additional retroactive benefits based on the theories of equitable estoppel, unjust enrichment, and breach of fiduciary duty. We conclude as follows: (1) equitable estoppel is inapplicable because the facts regarding Good’s retirement were equally available to both parties and she is charged with knowledge of the law regarding retroactive benefits; (2) unjust enrichment is also inapplicable in light of that imputed knowledge; and (3) her fiduciary duty claim fails because there is no indication that the INPRS employee was a fiduciary. Therefore, we affirm.
NFP criminal opinions today (5):
Ind. Courts - COA announces a new opinion format
Here it is. Look for it Jan. 26th.
Stage Collapse - Bringing the ILB up to date on events relating to the 2011 State Fair stage collapse
On Jan. 14, 2015 the Court of Appeals issued an opinion in J.P. et al. v. Mid American Sound, et al., where the challenge, denied by the Court, was that the Indiana Tort Claims Act (ITCA) cap of five million dollars as applied to J.P. violated the open courts clause of the Indiana constitution, and that J.P.was in a class of persons treated unequally compared to other claimants seeking relief under the ITCA. As reported by Dan Carden of the NWI Times on Jan. 14th:
The sole person to reject the state's settlement offer for injuries suffered in the 2011 State Fair stage collapse cannot sue Indiana, because it already has paid other victims the maximum damages permitted by law.Ken Kusmer reported for the AP on the same day:
The Indiana Court of Appeals ruled 3-0 Wednesday that Jordyn Polet, of Cincinnati, who suffered $2,601 in immediate injuries at the fair and potentially up to $100,000 in total injuries, has no legal recourse, because there is no money available for her to recover.
Under the Tort Claims Act, the state only is liable for damages of up to $700,000 per person, or $5 million per incident, regardless of how many people were affected. * * *
State officials split the $5 million by paying heirs of those killed $300,000 each and paying 65 percent of medical bills for the injured.
A supplemental $6 million appropriation ultimately permitted payments of $700,000 to families of the dead and 100 percent of medical bills for the injured.
Polet turned down the $1,691 initially offered to pay 65 percent of her medical bills, making her ineligible for any additional money under the supplemental appropriation.
The appeals court affirmed the constitutionality of the state's liability cap as a legitimate legislative tool for protecting the state treasury from a multitude of lawsuits.
A three-judge panel rejected arguments by Jordyn Polet of Cincinnati that the cap, known formally as the Indiana Tort Claims Act, violates the Indiana Constitution and that the girl was treated differently than other claimants who sued the state. Polet, who rejected the state's offer of $1,690, was the only claimant not to settle with the state.The ILB wrote about "The 1963 Coliseum Explosion, the end of sovereign immunity, and the enactment of the tort claims statute" in this Sept. 6, 2011 post, citing Perkins v. State, 252 Ind. 549 (1969) and Campbell v. State, 284 N.E.2d 733 (1972). State v. Rendleman, 603 NE 2d 1333 (1992), an opinion by Justice Krahulik which is cited in Mid-American, contains on-point discussion beginning at p. 1335 and continuing through the end of the opinion.
"One of the main concerns the ITCA was intended to address was protection of the public treasury from a multitude of tort lawsuits," said the unanimous opinion written by Judge Melissa May. "The aggregate liability cap is a rational means to achieve the legitimate legislative goal of protecting the public treasury." * * *
One of the teen's attorneys, Robert Peck, said before speaking to Polet and her family that he likely would appeal the case to the Indiana Supreme Court. He said the Court of Appeals found that Polet had a valid cause of action but also that the state had immunity from her lawsuit.
"I think that's a fundamental error," Peck said in a telephone interview. * * *
Indiana Attorney General Greg Zoeller's office defended the liability cap in the case.
"Unlike a private company being sued for damages, state government under sovereign immunity cannot be sued except under the limitations and deadlines the Legislature permits, since this is taxpayers' money and the taxpayers did not cause the loss," Zoeller said in a statement.
Earlier, as Chris Sikich reported in this Dec. 19th Indianapolis Star story,:
The law firm representing victims of the Indiana State Fair stage collapse on Friday announced it had reached a settlement totaling nearly $50 million.
The settlement, announced by Kenneth J. Allen Law Group, includes claims from the seven deaths and 58 injuries in the Aug. 13, 2011, collapse.
In all, 19 companies were part of the settlement. A 20th company named in the class-action lawsuit, ESG Security, is headed toward trial in 2015.
The settlement includes the previously announced $11 million paid by the state of Indiana.
"In fully settling a few months after the tragedy in order to put the victims first, the Attorney General's Office has encouraged the private parties to make efforts to resolve their remaining disputes," Indiana Attorney General Greg Zoeller said in a statement. "We hope their private settlement now allows the victims and their families to find peace and move forward."
In what the law firm called a historic decision, the settlement includes Alisha Brennon, the domestic partner of Chicagoan Christina Santiago, who was killed in the collapse.
"We believe it is the first time a lesbian couple in a civil union has been treated like any other couple for the purposes of wrongful death recovery," said Bryan Bradley of the Kenneth J. Allen Law Group, in a prepared statement. "We are proud to have overcome another hurdle in the struggle for equal treatment regardless of sexual preference."
However, Zoeller said the $700,000 the estate of Christina Santiago received from the State of Indiana was paid by virtue of the fact that Ms. Santiago was a person who died in the incident, and was not based on her marital status.
On Monday, attorneys for victim Jordyn Polet asked the Indiana Court of Appeals to throw out the law that limits the amount of damages the state can give out after a tragedy.
Ind. Decisions - Transfer list for week ending January 16, 2015
Here is the Clerk's transfer list for the week ending Friday, January 16, 2015. It is two pages (and 23 cases) long.
One transfer was last week:
- James Bogner v. Teresa Bogner - This was a Sept. 23, 2014 COA opinion that concluded:
Here, the trial court did not indicate in its order that it considered any of the factors that it was required to consider under the Guidelines. In addition, the Parents did not submit any evidence from which the trial court could have considered many of the factors. There is evidence in the record concerning the Parents’ respective incomes and the percentage of the cost of supporting H.B. that each Parent bears. Based on this evidence, the trial court could have considered the second and fourth factors listed in the Guidelines, although there is no evidence it did so. Otherwise, neither party submitted previous tax returns nor any other evidence that would have helped the trial court consider the financial ramifications to H.B. of eliminating Father’s tax exemption, other than Mother’s self-serving testimony regarding the value of the exemption. Accordingly, we conclude that the trial court abused its discretion in modifying Father’s exemption. We remand to the trial court to re-evaluate the issue of the Parents’ tax exemption based on the factors listed in the Child Support Guidelines. Reversed and remanded with instructions.
Monday, January 19, 2015
Ind. Courts - More on: The biennial budgeting process provides a look at the Indiana Court's plans
In this Jan. 12th post, the ILB wrote about what it had gleaned to that point about the future plans of the Indiana Courts, including:
What have we learned so far - Supreme CourtThe ILB submitted an informal FOIA request to the Court on Jan. 11th, in advance of the post, but has never received the Dec. 17th slides. Eventually, the ILB contacted the State Budget Agency, which responded promptly with the best version it had, which was nondigital. Here is the 8-page document. The ILB had been particularly interested in seeing the slides on the Automated Recordkeeping Fee and the Sources of Court funding as referred to by the CJ, in hopes that they would provide more information:
Here is Chief Justice Rush's presentation to the Budget Committee on Dec. 17th, which was first on the agenda and lasted about 45 minutes. Much reference is made to slides, the ILB is attempting to obtain copies of the slides from the Supreme Court Public Information Officer. Without them the discussion is difficult to follow. Here are some points of interest to the ILB, but you may learn more if you listen for yourself.
The CJ, referring to a slide, went through the Automated Recordkeeping Fee, how much is collected, and how much the Court actually receives, and what will happen when $2 of the fee is sunsetted, but the discussion seemed confusing. [see, starting at 14:37 and 17:00-19:10]The two slides referenced are on p. 4 of the handout, but really provide little detail.
At 21:50, the CJ discussed a slide titled "How are your courts funded?"
Ind. Courts - Boehm on CJ Rush's proposal for a business court
Former Indiana Supreme Court Justice Ted Boehm wrote in Indiana Forefront yesterday:
In her inaugural State of the Judiciary address, Chief Justice Rush mentioned the Court’s initiative to study the creation of “a business court model” to offer more efficient handling of complex lawsuits.ILB: Here, from the transcript of her State of the Judiciary, is the text of the CJ's statement on business courts:
An Indiana Business Court is a concept that has been knocking around for several years. It is good to hear that the Supreme Court and its committee of trial judges are now moving forward to design a plan for this state. It may take some time, before we have a finished plan. Michigan adopted its business court plan in 2012 after forming a study committee in 2003.
Originally, a “business court” was understood as the Delaware model, where for over 100 years the Chancery Court was given exclusive statewide jurisdiction over internal corporate disputes. Because so many national corporations are organized in Delaware, the Chancery Court achieved national preeminence as the go-to court for major corporate law cases.
In the 1990s, business courts began to blossom across the country, and now exist in one form or another in many states.
In most states, the subject matter of cases handled by business courts has been expanded well beyond the original Delaware model, and many business courts now handle a variety of forms of complex litigation. Typically any lawsuit between two businesses, even if only a contract dispute, is deemed a “business” case, and many states add specific subject matters such as securities litigation.
The “court” is usually not a single trial court with statewide jurisdiction like the Indiana Tax Court. Rather, most states have designated business courts as divisions of one to three existing trial courts in areas with a volume of business cases.
Michigan, for example, has given jurisdiction over categories of cases deemed complex to a few judges in three counties that include Detroit, suburban Detroit and Grand Rapids.
Experience in other states seems to establish that there is a benefit to having experienced judges handling cases involving extensive discovery, multiple parties, or subject matters that come along only infrequently. But there is no uniform pattern across the United States. The configuration of a business court plan for this state requires a detailed study of Indiana’s caseloads to identify what kind of cases are appropriate to reserve to specialized judges. The same study also needs to figure out where a business court or courts should be located.
Second, to fulfill our promise of justice for businesses in Indiana, we are looking at improving how we process complex civil cases. The Court is currently working on the development of a business court model focused on complex commercial litigation. Creating this specialty court will bring together judges experienced in handling business and commercial law cases to preside over a specialized docket with business-specific resources. Our goal in this endeavor, along with the introduction of electronic filing, is to promote an attractive, predictable and consistent climate for doing business in Indiana. Many thanks to Justice David, Judge Heather Welch, Judge Craig Bobay and their committee for all their work here.
Ind. Courts - "Check given to church from estate bounces"
That is the headline to this Anderson Herald Bulletin story today by Ken de la Bastide that begins:
For the second time in his career, an Anderson attorney is in a court dispute over the administration of an estate.
And now, attorney Stephen Schuyler is being called to task over a check he wrote to East Lynn Christian Church to settle the estate of the late Sarah Wilding. The check reportedly bounced, according to court documents.
Schuyler was appointed administrator of Wilding’s estate in 2012. Wilding died on April 20, 2012, and her will specified that remaining assets be paid to the church.
On Oct. 13, 2014, Court Commissioner Jason Childers in Madison Circuit Court Division 6 signed an order in which Schuyler agreed the church was owed $77,387.13 from Wilding’s estate.
Attorney Patrick Cunningham, representing East Lynn Christian Church, 522 E. 53rd St., filed a motion with the court on Oct. 30 stating the funds had not been received. A hearing was set for Nov. 26 but Schuyler failed to appear.
Another hearing was set for Dec. 10 where Schuyler again failed to show up. An arrest warrant was issued but the court approved a seven-day stay on the warrant being issued.
On Dec. 16, Schuyler gave a check to the church for $78,387.17. Several days later it was returned by Ameriana Bank for insufficient funds.
Cunningham requested a hearing on behalf of the church as a result of the bounced check and a hearing was set for last Wednesday. Schuyler failed to appear for the hearing. The court denied his request for a continuance and granted Cunningham’s request to seek a warrant.
Law - Advocate sues the IRS "for not releasing nonprofit tax forms in electronic, searchable formats"
This story, by Natasha Lindstrom, was in the Jan. 15th Pittsburgh Tribune. Some quotes:
The push to force the Internal Revenue Service to release nonprofit tax forms in electronic, searchable formats moved forward this week.Here is some useful explanation from Suzanne Perry in a June 16, 2014 article at Philanthropy.com:
U.S. District Court Judge William H. Orrick, of the Northern District of California, said he intends to rule against the IRS and in favor of plaintiff Carl Malamud, founder of Public.Resource.org. Orrick's action could be a landmark ruling for transparency of tax-exempt organizations.
“We're totally gratified by the motion order, but it is premature to celebrate,” said Malamud, the open records advocate responsible for getting Securities and Exchange Commission data online in the 1990s. * * *
Malamud sued the IRS in June 2013, when the agency denied his public records request seeking tax returns in the format that nine nonprofits used for online submission.
The tax forms, called Form 990s, are public documents.
The group wants to obtain some specific Forms 990s, the informational tax documents filed by nonprofits, in a format that can be read by computers.The long Philanthropy.com article is particularly valuable in that it goes on to detail the uses to which the information may be put.
In theory, that shouldn’t be difficult since the nine nonprofits involved— including the American National Standards Institute, the New Horizons Foundation, and the International Code Council—submitted the forms electronically. But the IRS converts all 990s, no matter how they were filed, into [ILB - scanned PDF] images, rendering them useless for digital operations like searching multiple forms for information.
That means watchdog groups and those that provide information on charities, like Charity Navigator, GuideStar, and the Urban Institute, have to spend money to manually enter the data they get from the IRS before making it available to the public, even if it has previously been digitized.
The lawsuit against the IRS, filed by Public.Resource.Org, aims to end that practice.
Lydia DePillis of the WAPO reported on June 18, 2014:
Nonprofit tax filings -- known as Form 990s -- are, technically, public. Sure, you can go to a service like Guidestar and pay to pull the full PDF file for each individual group, scanning through data fields until you come across juicy tidbits like salaries, revenue and expenses.
But here's what you can't do: You can't search all nonprofits by each of those fields, like you can with lobbyist disclosures and campaign donations, which has allowed groups like the Sunlight Foundation and Center for Responsive Politics to build amazing data-crunching tools for learning how politicians and special interests are linked.
The 990s are probably even more important than all those fundraising reports. The nonprofit sector is way bigger than the influence industry, bringing in $1.87 trillion and sitting on $4.3 trillion in assets in 2009, which accounts for 9.2 percent of all wages and salaries paid in the United States. As the Aspen Institute argued in a paper earlier this year, if their 990s were made available in machine-readable format, it would be a lot easier to spot fraud and abuse, see where charitable resources are being deployed and understand their role in the economy.
Indiana Decisions - The Emily Herx case isn't over yet
The last ILB post on the case was Jan. 13th, headed "Award in Herx case decreased: Diocese to pay $543,803."
On Jan. 17th Rebecca S. Green reported in the Fort Wayne Journal Gazette:
Moments after the jury announced its verdict in the case of Emily Herx versus the Fort Wayne-South Bend Roman Catholic Diocese, finding in favor of the former school teacher, the diocesan attorney said the diocese would likely appeal the verdict.
And even though the case is officially closed, according to the U.S. District Court docket, local attorney Cathleen Shrader filed paperwork Friday to represent the church.
Shrader is a partner at Barrett & McNagney and lists appellate practice as her top practice area, according to the firm’s website. * * *
The week before Christmas, a federal jury announced it sided with Herx in her lawsuit accusing the diocese of discriminating against her when it terminated her contract after it became known she underwent in vitro fertilization. The medical procedure is used to treat infertility and is condemned by Catholic teaching. * * *
After the verdict, the diocese asked that the judgment be reduced to $300,000 per a statutory cap. On Monday, U.S. District Judge Robert L. Miller Jr. reduced the amount of some of the compensatory damages but increased the amount of the award for lost benefits and wages, for a total of $543,503.
On Tuesday, Herx’s attorney, Kathleen DeLaney, filed her request for a fee recovery, arguing that federal law entitles the winning side in a discrimination case to recoup the costs of the case.
Her fees included her work of 523 hours. Nine other attorneys and paralegals also worked on the case, contributing more than 2,580 hours of work. Legal costs totaled $756,000.
No paperwork has been filed announcing a movement of the case to the federal 7th Circuit Court of Appeals in Chicago, but when diocesan attorney John Theisen spoke to the media after the conclusion of the trial, he practically promised an appeal.
He said the case remained an issue of religious freedom and that exemptions in civil rights laws for religious employers should have protected the diocese from the unfavorable verdict.
“It never should have brought the case to trial,” he said.
Ind. Gov't. - "Lawyers, analysts at LSA are Legislature's 'unsung heroes'"
Maureen Hayden, CNHI Statehouse Bureau, has a good story today in the Anderson Herald Bulletin about the Legislative Services Agency. Some quotes from the long story:
For agency director George Angelone, its identity as the Legislature’s nonpartisan research arm is critical.
It’s legislators who craft and debate and settle on what they think is the best public policy. In turn, it’s his veteran staff – more than half have been there more than a decade – do the grunt work for whatever proposal comes before them, no matter how sane or wacky.
“We understand that’s our role,” said Angelone, a lawyer and certified accountant with an MBA. “If someone crosses the line “ — into policy advocacy — “they just have to leave.”
Angelone — a trim, former marathon runner — is meticulous. He can be unmovable when he and his staff are pressured by partisan interests.
Supporters of Sunday alcohol sales, for example, were infuriated when the agency’s analysis estimated only minimal tax revenues from the extra day of sales.
The agency concluded that consumers would just shift their habits instead of buying more alcohol – an argument that’s helped to kill the bill in years past.
Still, Angelone says staffers who leave the agency don’t go because of politics or policies.
It’s because “the work can be grueling,” he said.
Over the Christmas holidays, in advance of the session’s start in early January, the halls of the Statehouse were nearly empty. But the Legislative Services Agency’s offices on the third floor bustled.
That’s because legislators often wait until a mid-December deadline to turn in proposals, most of which must be drafted into code-complying language before they’re edited and printed.
In the last week of December, the agency’s staffers churned out 600 bills. Many celebrated Christmas Eve at their Statehouse desks, took off Christmas Day, then returned to work through the weekend.
On New Year’s Day, they were calling legislators at home to get final approval on drafts of bills.
“We’ll do whatever work is necessary to get the job done and do as good a job as we can,” said Angelone, who’s spent 24 years with the agency.
Ind. Decisions - "Department Of Revenue Barks Up The Wrong Tree (Again)"
The entire heading of the article today by Brent Auberry of Faegre Baker Daniels in JDSupra is "Department Of Revenue Barks Up The Wrong Tree (Again): Indiana Tax Court Allows Claim For Compensatory Damages To Proceed." The subject is the Dec. 31st Tax Court ruling in Garwood v. IDOR, which was summarized here by the ILB.
Today's brief article gives a good capsule overview of all the Garwood opinions.
Catch-up: What did you miss over the weekend from the ILB?
From Sunday, January 11, 2015:
- Law - "Wisconsin Supreme Court disbars 'Light Hero' lawyer"
- Ind. Decisions - Appraisal/assessment of big box stores
- Courts - "Kentucky Supreme Court justices question legality of Louisville laws"
- Ind. Gov't. - "Illinois Gov. Rauner in driver's seat on Illiana Expressway"
- Ind. Decisions - More on: Supreme Court schedules oral argument in "Elkhart 4" appeal
From Saturday, January 10, 2015:
From late Friday afternoon, January 9, 2015:
- Courts - SCOTUS agrees to hear 6th Circuit SSM appeals
- Ind. Gov't. - Current IDOR SSM Tax filing guidance, such as it is
- Law - AG Holder today barred local and state police from using federal law to seize cash, cars and other property without evidence that a crime occurred
Ind. Decisions - Upcoming oral arguments this week and next
This week's oral arguments before the Supreme Court (week of 1/19/15):
Wednesday, Jan. 21
- 9:00 AM - Dee Ward v. State of Indiana (49A02-1401-CR-25) Ward repeatedly struck a woman with a leather belt, seriously injuring her, and Ward was convicted of battery. The woman did not testify at the bench trial in the Marion Superior Court; Ward was identified as the attacker by medical personnel based on comments the woman made during treatment. The Court of Appeals affirmed after concluding that the woman’s statements were not testimonial, and therefore the U.S. Constitution’s Sixth Amendment Confrontation Clause did not apply. Ward v. State, 15 N.E.3d 114 (Ind. Ct. App. 2014), trans. pending. Noting that Ward failed to provide cogent argument relating to Article I, Section 13 of the Indiana Constitution, the Court of Appeals did not address admission of the identification evidence under the state constitution. Ward has petitioned the Supreme Court to accept jurisdiction over the appeal.
- 9:45 AM - State of Indiana v. Brishen Vanderkolk (79S04-1411-CR-718) While serving a sentence on home detention, Vanderkolk’s roommate had signed a form relinquishing his Fourth Amendment rights relating to searches for controlled substances and agreeing that officers could enter his residence at any time “to search upon probable cause.” When officers entered the residence as a matter of protocol to ensure the roommate’s compliance with the program, they smelled marijuana, and found contraband in Vanderkolk’s bedroom. Vanderkolk was charged with a Class D felony and other offenses, but the Tippecanoe Superior Court granted his motion to suppress the evidence. A majority of the Court of Appeals panel affirmed in State v. Vanderkolk, 10 N.E.3d 585 (Ind. Ct. App. 2014), vacated. The Supreme Court has granted a petition to transfer the case and has assumed jurisdiction over the appeal.
ILB: This was a June 11th split opinion, two individual opinions plus a dissent without an opinion.
- 10:30 AM - Marq Hall v. State of Indiana (49S05-1412-CR-728) At Hall’s trial on charges of child molesting, the Marion Superior Court ruled that a transcript of a telephone conversation between Hall and the child’s mother (in which the mother provided Hall with information he could use to impeach the child) was not admissible. The Court of Appeals held, among other things, that exclusion of the phone call was reversible error. Hall v. State, 15 N.E.3d 1107 (Ind. Ct. App. 2014), vacated. The Supreme Court has granted a petition to transfer the case and has assumed jurisdiction over the appeal.
ILB: This was a 2-1 Sept. 4th COA opinion.
- No oral arguments currently scheduled.
Webcasts of Supreme Court oral arguments are available here.
This week's oral arguments before the Court of Appeals (week of 1/19/15):
- No oral arguments currently scheduled.
Next week's oral arguments before the Court of Appeals (week of 1/26/15):
- No oral arguments currently scheduled.
ONLY those Court of Appeals oral arguments presented in the Supreme or Court of Appeals Courtrooms will be accessible via videocast. [Note: This may be changing...]
The past COA webcasts which have been webcast are accessible here.
NOTE: For a printable version of this list of upcoming oral arguments, click on the date in the next line. Then select "Print" from your browser.
Sunday, January 18, 2015
Law - "Wisconsin Supreme Court disbars 'Light Hero' lawyer"
This is a Jan. 16th story from the Milwaukee Journal Sentinel, reported by Cary Spivak, that has Indiana connections. Some quotes [emphasis added by ILB]:
The state Supreme Court Friday pulled the plug on Emory Booker, disbarring the Milwaukee lawyer who called himself the "Light Hero."The June 3, 2012 J-S story includes:
Booker, a former assistant Milwaukee County district attorney, targeted financially strapped people desperately looking for court help to keep their lights on. He used to advertise his services by putting fliers on central city lampposts proclaiming, "Don't be a We Energies victim," and directing them to his law office.
In 2013, regulators charged Booker with 47 counts of misconduct, including making false statements, overcharging clients, failing to provide competent legal services and engaging in conduct "involving dishonesty, fraud, deceit or misrepresentation." The disbarment comes more than four years after the Office of Lawyer Regulation received its first complaint about Booker. * * *
The Friday action is the first discipline handed down by state regulators against Booker. He has, however, been chastised by federal courts and, in 2013, he was ordered to return $36,768 to clients he was hired to represent in bankruptcy court.
The Journal Sentinel in 2012 first reported on Booker's tactics, and on complaints about him voiced by clients and court officials. Several clients said that they paid Booker and thought he was their bankruptcy attorney, only to later learn he was not.
Booker argued the clients were not hiring him to be their bankruptcy lawyer. Rather, he said, he simply provided clients with an analysis to determine whether they should file for bankruptcy. He then referred them to an Indiana bankruptcy petition preparer, a non-lawyer who, for $75, fills in bankruptcy filings but is banned from providing legal advice.
The state Supreme Court, however noted Friday that in many cases Booker did not conduct a "meaningful review as to the debtor's suitability for bankruptcy." The court noted "much of the information that Attorney Booker provided to his clients was inaccurate."
In one three-month period, 140 bankruptcies were filed by people who used the Indiana service, the Supreme Court said, pointing out that Booker helped prepare the filings even though he was never listed as the person's attorney.
Booker, however, offered a spirited defense of his work before the various judges, arguing that he was only doing a "suitability analysis" to determine whether a client should file for bankruptcy. Then, he and courthouse officials said, he would ship the paperwork to a nonlawyer known as a bankruptcy petition preparer who collected $75 to put together the client's paperwork. * * *A google search for "Crystal Neal of 1st Choice Bankruptcy Preparation" led to Fort Wayne listings.
Kelley ordered that Booker refund his $233 fee and that Crystal Neal of 1st Choice Bankruptcy Preparation return her $75 fee to Hill. The Laotto, Ind., firm prepares many of the bankruptcy filings for Booker's clients.
Bankruptcy petition preparers are strictly regulated by federal laws. These national guidelines issued by the DOJ spell them out. See particularly #10, beginning on p. 3, which begins:
A bankruptcy petition preparer is not an attorney and is not authorized to practice law. As defined by statute and case law, the activities that constitute the practice of law in the bankruptcy court include, but are not limited to, the following: ...
Ind. Decisions - Appraisal/assessment of big box stores
The 50-page Dec. 1, 2014 Indiana Board of Tax Review decision in Meijer Stores LP v. Marion County Assessor is the subject of a long Jan. 17th story in the IBJ, reported by Kathleen McLaughlin. A few quotes:
Big-box retailers could see their Indiana property-tax bills slashed in half because of a recent court decision that favored Meijer over Marion County.There is much worth reading in the IBJ story.
The Indiana Board of Tax Review ruled in December that the East 96th Street Meijer store—one of the most successful in the state—should have been assessed in 2012 at the equivalent of $30 per square foot, not the $83 per square foot assigned by Marion County. * * *
Assessors value retail real estate based on the current condition of the business, but big-box chains are pushing to have their buildings compared to others that have been vacated and sold. Appraisers across the country refer to the big-box chains’ approach as the “dark store theory.”
In the Meijer case, the Michigan-based company’s appraiser compared the store at 8375 E. 96th St., near Fishers, to a former Lowe’s in Anderson and shuttered Wal-Mart stores in Lafayette, Clarksville and Bloomington.
“Sure, the fully functional store’s worth more than the empty store, but the additional worth is in the business being conducted there. It’s not from the real estate,” said Stephen Paul, a partner at Faegre Baker Daniels who represented Meijer at the state review board, and who also represents Target, Home Depot and Lowe’s.
Yet assessors typically consider a business’s income when assigning value to commercial and industrial property.
If higher courts agree with the review board, “then every large manufacturing facility will be valued as a flea market,” said Mark GiaQuinta of Haller & Colvin LLP in Fort Wayne, which represents the Allen County Assessor’s Office. * * *
Indiana’s law was created to protect farmers from skyrocketing property values as commercial property encroaches on agricultural land, Paul said. That means that if a farm is operating next to a shopping mall, it still will be valued as a farm.
While that standard seems to call for valuing a retail store in its current condition, the review board said current use should be defined in a broad sense. In past cases, the board noted, the Indiana Tax Court has found no difference between a building that’s used by a Wal-Mart or Lowe’s and one that’s used by a retailer with a lower credit rating, such as Hobby Lobby or Big Lots.
Although the ruling was issued Dec. 1st, no other papers appear to have picked it up, although the ILB has found that several reporters anticipated it.
Grace Schneider reported March 26th in the Louisville Courier Journal that:
Home Depot executives contend that Floyd County assessors have “grossly overestimated” the value of their property on State Street, and the retail giant is seeking a tax refund estimated at more than $435,000.Vivian Sade reported Nov. 7th in the Fort Wayne Journal Gazette:
Floyd and New Albany officials have teamed to battle the store’s tax appeal, just as they intend to fight a separate appeal by Meijer on Charlestown Road. * * *
The dispute is significant for Floyd and the TIF because big-box retailers have begun to file blanket appeals of their assessments. In Indiana, Meijer is appealing several years of its tax assessment for its Charlestown Road property, as well as assessments at more than 100 other stores in Indiana.
If they succeed, it’s devastating for counties and TIF districts because those entities rely on the money to repay bond debt and fund local government, said Tom Morlan, a tax consultant and appraisal expert hired by New Albany to assist with the challenge.
Next “it’s Kohl’s, then it’s Penney’s…it’ll be a tsunami,” he said.
County assessors across Indiana and in other states are fighting the same battles, said Judy Sharp, Monroe County assessor and president of the Indiana County Assessors Association. “Every big company is finding it very lucrative to appeal their assessment.”
FORT WAYNE — Meijer Stores has appealed its tax bills for all Indiana stores, including three in Fort Wayne.In addition to the Dec. 1, 2014 Meijer opinion, linked at the beginning of this post, on Dec. 31, 2014 the Indiana Board of Tax Review issued a 54-page decision in Kohl's Indiana LP v. Howard County Assessor, that begins:
Meijer Stores LTD Partnership filed the latest appeals for 2012 property assessments on its Fort Wayne stores in February, Allen County Assessor Stacey O’Day said Wednesday.
The parties offered valuation opinions from two experts who fundamentally disagree about how a built-to-suit big-box store like the subject property should be appraised. Much of the dispute lay in the experts’ differing interpretation of Indiana’s true tax value standard. The Assessor’s expert viewed that standard as being closely focused on the business model of the property’s current owner—Kohl’s. That led him to give little weight to approaches other than the cost approach and to recognize no external obsolescence, despite the oversupply of retail properties and the economic recession and slow recovery that spanned the valuation dates at issue. By contrast, the expert for Kohl’s focused much less on the owner and its business model and more on the property’s general retail use. And unlike the Assessor’s expert, she did not view the property as special purpose. We are more persuaded by the opinions of the expert for Kohl’s, which more closely follow the Indiana Tax Court’s interpretation of true tax value and more appropriately characterize the nature of the property.See also starting at p. 38 of the ruling.
Courts - "Kentucky Supreme Court justices question legality of Louisville laws"
Jason Riley reports for Louisville WDRB:
LOUISVILLE, Ky., (WDRB) --When Olivia Johnson's dog, Franklin, was confiscated after attacking another dog in 2011, Johnson ended up with more problems than just trying to save to her pet.Later in the story:
She became a convicted criminal.
In 2012, Johnson was sentenced to 90 days in jail and ordered to pay a $250 fine after a Jefferson District Court judge found her guilty of a misdemeanor for violating a city ordinance by failing to “restrain a dangerous dog” -- even though the dog had been in Johnson's mother's care at the time. The judge also gave Metro Animal Services the discretion to euthanize Franklin.
David Neihaus, an attorney for Johnson, appealed the ruling, arguing, in part, that while the Metro Council has the right to make ordinances that can impose civil fines or take Franklin away, it can't “make somebody a criminal.”
“The determination of what's a crime and what's not is done at the state level,” Neihaus said during a 2012 court hearing. “The Metro Council cannot create misdemeanors.”
And last month, at least three members of the Kentucky Supreme Court agreed, writing in an order that the Kentucky General Assembly, not the Metro Council, has “exclusive authority to enact and define crimes and criminal penalties.
“In the present case, Louisville Metro is essentially rewriting the Kentucky Penal Code,” Justice Bill Cunningham wrote in the Dec. 18 order, which was released last week.
The order, while not legally binding, should be a “clarion call to the legislature to remove any doubt as to where the authority to enact a criminal statute and fix its penalties lies,” Justice Mary Noble wrote.
And Cunningham wrote that the Supreme Court itself should act “today before untold others are convicted and sentenced to incarceration for crimes they did not commit.”
The opinion of the justices appears to represent a shift in the thinking of the high court and would be a “drastic change” for many Metro Council ordinances, including the dangerous dog law, said Pat Mulvihill, director of the civil division in the Jefferson County Attorney's Office.
However, Mulvihill said, the Supreme Court opinions of the three justices represented a minority of the court and isn't binding. Because of a legal technicality, the entire court could not rule on the legality of the criminal ordinances.
The opinions from the Supreme Court justices weren't just suggesting change in Jefferson County.
Cunningham wrote that there is no shortage of these laws across the state and pointed out the “astounding incongruity in criminal ordinance and punishments” among various Kentucky counties.
Lexington's vicious dog ordinance, for example, carries only a fine but no jail time. But in Louisville, dog owners like Johnson can face stiffer penalties than someone who is convicted of selling a firearm to a minor.
Meanwhile, other cities have ordinances that create crimes the justices deemed absurd – and exclusive only to those places.
In Newport, Kentucky, for example, spitting on the sidewalk is a misdemeanor crime, according to its city ordinance.
In Fort Thomas, selling dyed chicks or rabbits is a misdemeanor.
“Surely the citizens do not expect to face disparate treatment from place to place for the same acts because one city makes certain conduct a crime, another merely makes that conduct a violation,” Noble wrote.
Ind. Gov't. - "Illinois Gov. Rauner in driver's seat on Illiana Expressway" [Updated]
Updating this ILB tweet from Jan. 13th:
Indiana Law Blog @indianalawblog Jan 13the Illiana Expressway, which had looked to be a done deal, is now in limbo.
@nwi This is big! New Illinois Gov. Rauner's order puts planned Illiana Expressway on hold: http://bit.ly/1KHeNH3
From Keith Benman's Jan. 15th NWI Times story:
The Indiana Department of Transportation is taking a wait and see approach on the Illiana Expressway, as new Illinois Gov. Bruce Rauner mulls whether to proceed with the 50-mile toll road.Many earlier ILB posts, dating back as far as 2007, on this controversial project.
"We are waiting to see what our friends in Illinois have to say on the Illiana, and you will know when we know," INDOT Deputy Commissioner for Northwest Indiana Rick Powers told a Thursday meeting of the Northwestern Indiana Regional Planning Commission.
In his first act after taking office Monday, Rauner suspended planning and development of major interstate highway construction projects pending a "careful review" of costs and benefits. That order included the Illiana Expressway, which received final federal approval last month.
[Updated 1/19/15] See also this long, excellent 1/15/15 story by Carrie Napoleon and Susan Lafferty of the Gary Post-Tribune.
Ind. Decisions - More on: Supreme Court schedules oral argument in "Elkhart 4" appeal
As the ILB reported nearly two weeks ago, on Jan. 5th, oral argument in the "Elkhart 4" appeal is officially scheduled for THURSDAY, FEBRUARY 26, 2015 AT 10:30 AM. The Court has informed the parties that it is particularly interested in argument on issues relating to application of Indiana Code section 35-42-1-1, the felony murder statute, to this case.
The ILB has earlier posted the transfer petitions and responses. The docket in the Sparks/Layman case does not show that transfer has been granted. The Supreme Court will decide whether to grant transfer and issue an opinion, or to allow the Court of Appeals opinion to stand, after the oral argument.
Friday, January 16, 2015
Courts - SCOTUS agrees to hear 6th Circuit SSM appeals
A few minutes ago the SCOTUS granted cert to four same sex marriage challenges, from Michigan, Ohio, Tennessee, and Kentucky. These are the 6th Circuit cases, and they were consolidated. Briefs of petitioners are due Feb. 27, respondents' briefs are due March 27, replies due April 17. Questions:
- Does the 14th Ame. require a State to license a marriage between two people of the same sex? 90 minutes
- Does the 14th Am. require a State to recognize a marriage between two people of the same sex when their marriage was lawfully licensed and performed out-of-state? 60 minutes
Ind. Gov't. - Current IDOR SSM Tax filing guidance, such as it is
The ILB has located this Ind. Dept. of Revenue announcement:
Added 10/16/14 - Same Sex MarriageBasically the same information was repreated today in this document, January 2015 Tax Dispatch, on p. 16 of 36, but the ILB found it difficult to access.
Effective with the [U.S.] Supreme Court decision (10-6-14) not to hear the Indiana (and others) case, taxpayers in same-sex marriages from states that recognize them are now able to file their taxes in Indiana as married filing separately or jointly. We will accept all such individual income tax filings effective immediately.
If taxpayers who followed our original guidance and filed as single individuals want to amend their filings to file as married filing separately or jointly, they may do so by filing an IT-40X for 2013 taxes filed in 2014.
If there are no other changes in the future, in 2015 we will be accepting same-sex married couples individual tax filings as married filing separately or jointly for anyone legally married in the states that recognize those marriages for 2014 taxes.
The ILB wrote at length about the SSM filing question on March 11, 2014, in a post headed " "Conflicting state and federal policies will likely cost Indiana same-sex couples more when they file their tax returns this year, experts say"."
By Oct. 14, 2014, IDOR's Same-Sex Marriage Tax Filing Guidance, issued Nov. 21, 2013, referenced in the March 11, 2014 ILB post, has been removed.
Law - AG Holder today barred local and state police from using federal law to seize cash, cars and other property without evidence that a crime occurred
This is BIG! This ILB post from last Sat., Jan. 10th, quoted a Washington Post report that:
Leaders of the House and Senate Judiciary committees on Friday called on the Justice Department to end the sharing of civil seizure proceeds with local and state police, a change that with few exceptions would cut the flow of hundreds of million of dollars annually to departments in every state.A link to the letter was included.
In a letter to Attorney General Eric H. Holder Jr., the lawmakers said they think money from Justice’s Equitable Sharing Program, the federal government’s largest civil asset forfeiture initiative, may be encouraging heavy-handed tactics by local and state police agencies.
This afternoon Robert O'Harrow Jr., Sari Horwitz and Steven Rich of the WAPO are reporting, in a long story:
Attorney General Eric H. Holder Jr. on Friday barred local and state police from using federal law to seize cash, cars and other property without evidence that a crime occurred.
Holder’s action represents the most sweeping check on police power to confiscate personal property since the seizures began three decades ago as part of the war on drugs.
Since 2008, thousands of local and state police agencies have made more than 55,000 seizures of cash and property worth $3 billion under a civil asset forfeiture program at the Justice Department called Equitable Sharing.
The program has enabled local and state police to make seizures and then have them “adopted” by federal agencies, which share in the proceeds. The program allowed police departments and drug task forces to keep up to 80 percent of the proceeds of the adopted seizures, with the rest going to federal agencies.
“With this new policy, effective immediately, the Justice Department is taking an important step to prohibit federal agency adoptions of state and local seizures, except for public safety reasons,” Holder said in a statement. * * *
While police can continue to make seizures under their own state laws, the federal program was easy to use and required most of the proceeds from the seizures to go to local and state police departments. Many states require seized proceeds to go into the general fund. [ILB - or in Indiana's case, the common school fund.]
Ind. Decisions - Court of Appeals issues 2 today (and 1 NFP)
For publication opinions today (1):
In K.B. and M.B. (Minor Children), and M.W. B. (Father) v. The Indiana Department of Child Services, an 18-page opinion, Judge Riley concludes:
In light of the foregoing, we conclude that the trial court’s Order adjudicating Children as CHINS is not erroneous.In Michael White v. State of Indiana, a 10-page opinion, Judge Riley concludes:
We conclude that although the underlying arrest constituted a misdemeanor, the strip search incident to White’s arrest was justified because of the officers’ reasonable suspicion that weapons or contraband would be introduced into the jail due to the lingering odor of marijuana which engulfed White even after having been transported to the APC. See Bell v. State, 13 N.E.3d 543, 546 (Ind. Ct. App. 2014), trans. denied (noting that the odor of raw marijuana indicates that it has not been smoked and therefore still may be in the defendant’s possession). The strip search did not violate White’s Fourth Amendment rights.2NFP civil opinions today (0):
NFP criminal opinions today (1):
Ind. Courts - "Court: ISP trooper lied about meth case"
Pam Tharp reports in today's Richmond Palladium-Item about a ruling by Union County Circuit Court Judge Matthew Cox. Some quotes:
LIBERTY, Ind. – Criminal charges filed against a Liberty man for allegedly cooking meth were dropped last week because an Indiana State Police trooper allegedly lied to obtain a search warrant for the man’s home.
Derek Kassens, 29, was charged in February 2014 with possession of methamphetamine (a Class B felony). He also was charged with possession of precursors, possession of paraphernalia, maintaining a common nuisance and neglect of a dependent (all Class D felonies).
Kassens was arrested after ISP Trooper Nate Raney received a warrant to search the suspect’s Glade Montgomery Road home. Raney is a member of the state police’s Methamphetamine Suppression Section, whose mission, according to a state police statement, is to proactively investigate methamphetamine crimes.
Last month, Union County Circuit Court Judge Matthew Cox granted a defense motion to suppress the results of the search. Former Deputy Prosecutor Ronald Rychner then filed a motion to dismiss the case, which Cox granted on Jan. 5. * * *
In his order granting the motion to suppress the evidence obtained by searching Kassens’ house, Cox wrote that the essential facts alleged in the search warrant application were “simply false, untrue and known by Raney to be untrue.”
“The court finds that Raney intentionally misled the court by claiming that the December (2013) tip (Union County Sheriff’s) Deputy (Shaun) Tudor received specifically named any one individual,” Cox wrote. “Deputy Tudor truthfully testified that the tip he received in December did not mention any specific names and that he told Raney that it did not mention any specific names. The Court finds that Raney’s inclusion in the search warrant affidavit of specific names, when he knew none were provided to Tudor, was a deliberate and intentional misrepresentation to the court and was critical to the finding of probable cause.”
On at least five occasions in a video, Tudor specifically asked the tipster if he had personally observed a meth lab at Kassens’ home and the tipster specifically denied doing so, according to court documents.
“Based upon the foregoing facts and the testimony of the witnesses, the court finds that Raney intentionally misled the court in his affidavit by falsely claiming (a source),” Cox’s order said.
The affidavit Raney presented to the court listed the names of four people who allegedly were cooking meth at Kassens’ home, despite the fact that Tudor did not receive any names from the person who provided the tip.
When officers searched Kassens’ home last year they found meth and many supplies and paraphernalia used to make the drug, according to court documents.
“The fact that Raney knows the statutory requirements for obtaining a search warrant and the law relevant thereto and simply ignored them belies any notion of good faith,” Indianapolis attorney Andrew Maternowski wrote in his memorandum in support of the motion to suppress. “The fact that Raney fabricated significant details to buttress the tip and link it to other information in the affidavit shows his true intent in misrepresenting the truth to the court.”
Law - Illinois prisoner "Tyrone Hood Is Free From Prison. Reporter's Story Led To Clemency"
In a Dec. 22, 2014 FWJG story, reporter Niki Kelly explained [emphasis added]:
A pardon is executive forgiveness for a crime that removes penalties and disabilities – such as not being able to get a gun license if you are a felon – to a person while also restoring civil rights, essentially making a person a new man or woman.This morning NPR broadcast this fascinating 7-minute story headed: "Tyrone Hood Is Free From Prison. Reporter's Story Led To Clemency." The blurb:
They are granted only to those who have completed their sentence, and at least five years have passed. It is not the same as commuting a sentence or clemency, where a person is let out of jail before a sentence is satisfied.
Before Ill. Gov. Quinn left office, he granted Hood's clemency petition. Steve Inskeep talks to Hood and Nicholas Schmidle, who wrote in The New Yorker that Hood had been wrongfully convicted.Here is that August 4, 2014 New Yorker story that asked: "Did the Chicago police coerce witnesses into pinpointing the wrong man for murder?" And here is the Jan. 13, 2015 follow-up, headed Freedom for Tyrone Hood." But Hood was not pardoned, he was granted clemency. As the Cook County state’s attorney’s office spokeswoman states in the Jan. 13th story:
“We were surprised by today’s commutation by the former Governor, but there is a post-conviction petition pending in this case and it remains the subject of review by this office.” Hood’s record will continue to reflect a murder conviction. His name will only be cleared if the state’s attorney’s office finds insufficient evidence to uphold the conviction and dismisses the charges.