Tuesday, May 31, 2016

Ind. Decisions - 7th Circuit posts one Indiana case decided May 27th

In USA v. Maurice D. Moore (ND Ind., DeGuilio), an 8-page opinion, Judge Pallmeyer (Rebecca R. Pallmeyer, ND Illinois, sitting by designation) writes:

Marcus Hayden, a federal probationer, engaged in an armed battle with police on April 9, 2012. One officer was injured in the gun fight, and Hayden himself was shot and killed. The government recovered the firearm Hayden used and has charged Defendant Maurice Moore with selling that weapon to Hayden, a known felon, and falsely reporting that the weapon was stolen. In Moore's upcoming trial, the government seeks to introduce evidence of a phone number Hayden had provided his probation of-ficer. Moore made several calls to that number in the hours surrounding the purported theft of the firearm. The district judge has granted Moore's motion to exclude the probation officer's records as inadmissible hearsay. We conclude, how-ever, that the records are admissible under the residual hear-say exception, Fed. R. Evid. 807, and therefore vacate the dis-trict court's order.

Posted by Marcia Oddi on May 31, 2016 03:44 PM
Posted to Ind. (7th Cir.) Decisions

Ind. Decisions - Court of Appeals issues 7 opinion(s) today (and 9 NFP memorandum decision(s))

For publication opinions today (7):

In Joseph C. Lehman v. State of Indiana ,a 14-page opinion with a pro se defendant, Judge Bradford writes:

In February of 2014, the Indiana Supreme Court suspended Appellant-Defendant Joseph Lehman from practicing law in the state of Indiana for not less than two years. In the year following his suspension, Lehman continued to provide various legal services to new and existing clients. Appellee-Plaintiff the State of Indiana (“the State”) subsequently charged Lehman with three counts of Class B misdemeanor practicing law by a non-attorney. After a bench trial, Lehman was found guilty as charged. Lehman raises three contentions for our review on appeal: (1) whether the trial court erred in denying his request for change of judge; (2) whether Lehman waived his right to a trial by jury; and (3) whether there was sufficient evidence to support his convictions. We affirm the trial court in all respects.
In David C. Varble v. Stephanie J. (Carroll) Varble and James T. Carroll; In Re: The Matter of the Paternity of: A.C., A Minor Child, David C. Varble v. Stephanie J. (Carroll) Varble and James T. Carroll, a 16-page opinion, Judge Brown writes:
David C. Varble (“Varble”) appeals the trial court’s denial of his motion for relief from judgment. Varble raises one issue which we revise and restate as whether the court abused its discretion in denying his motion for relief from judgment. We affirm. * * *

Varble argues that a child who is not the biological child of both parties to a dissolution is not a child born of the marriage, that “a dissolution Court does not have subject matter jurisdiction over that child,” * * * and that orders issued without subject matter jurisdiction are void. He requests that we direct the trial court to grant his motion for relief from judgment, find that A.C. was not a child of the marriage of Carroll and Stephanie, and remand for further determinations regarding Carroll’s motions for de facto custody and/or step-parent parenting time.

Carroll maintains that a dissolution decree in which a child is stipulated to be a child of the marriage has the effect of establishing legal paternity and that such orders are not void but are voidable and retain their legal force and effect until successfully challenged or reversed. * * *

Carroll requests this court to affirm the court’s denial of Varble’s motion for relief from judgment and remand for further proceedings on his de facto custody petition. * * *

Based upon the record, we conclude that the trial court did not abuse its discretion in denying Varble’s motion for relief from judgment under Cause No. 631.

In Larry M. New, and Heritage Medical Group, Inc., f/k/a Heritage Medical Services, Inc. v. T3 Investments Corporation, a 17-page opinion, Judge Brown writes:
Larry M. New, and Heritage Medical Group, Inc., f/k/a Heritage Medical Services, Inc. (“Heritage,” and collectively with New, the “Appellants”) appeal the trial court’s Order on the Summary Judgment Motions Filed by the Parties granting summary judgment in favor of T3 Investments Corporation (“T3”) and denying the Appellants’ summary judgment motion. The Appellants raise one issue which we revise and restate as whether the court erred in granting summary judgment in favor of T3 and denying the Appellants’ cross-motion for summary judgment. * * *

We agree with the trial court that consideration is not present between T3 and the Appellants to support the existence of a contractual relationship between them, and that, accordingly, the release contained in the Settlement Agreement is not applicable to T3’s contribution claim.

For the foregoing reasons, we affirm the court’s Summary Judgment Order.

In Faye E. Warfield and Keyotta Warfield a/k/a Nicole Warfield v. Jim Dorey d/b/a JRD Construction Services and JRD Enterprises, LLC, a 16-page opinion, Judge Riley writes:
The Warfields raise six issues on appeal, which we consolidate and restate as the following single issue: Whether the contract between Faye and Dorey is void under the Home Improvement Contracts Act (HICA). * * *

Because Dorey was yet to be licensed at the time he solicited the roofing work and failed to apply for the required permit, we conclude that he committed an incurable deceptive act as he intended to mislead Faye that he was a licensed contractor providing work in compliance with the statutory requirements and local ordinances. See I.C. § 24-5-0.5-2(a)(8). While we acknowledge that “the General Assembly did not intend that every contract made in violation of HICA to automatically be void;” the violation before us is precisely one of the
“well-known abuses found in the home improvement industry” which the HICA intended to protect the consumer against. Imperial Ins. Restoration & Remodeling, Inc. v. Costello, 965 N.E.2d 723, 729 (Ind. Ct. App. 2013); Benge, 855 N.E.2d at 720. Therefore, we declare the Contract between Dorey and Faye void. * * *

Based on the foregoing, we conclude that the trial court abused its discretion affirming the Contract between Faye and Dorey. Declaring the Contract void under HICA, we hold that Dorey can recover the invoiced amounts under the theory of quantum meruit and we remand to the trial court to calculate the prejudgment interest at eight percent per annum.

In Edward Rusnak and Rebecca Rusnak v. Brent Wagner Architects, a 20-page opinion, Judge Robb writes:
In 2006, Edward and Rebecca Rusnak contracted with Brent Wagner Architects (“BWA”) for the design of a home to be constructed on a lot they had recently purchased. Alan R. Sommers Construction Company (“Sommers”), as general contractor, constructed the home between 2008 and 2010. This litigation commenced in 2013 when Sommers sued, seeking to enforce the Rusnaks’ obligation to pay for the home.1 The Rusnaks filed a third party complaint against BWA for breach of contract. BWA filed a motion for summary judgment; shortly after the motion was fully briefed and set for hearing, the Rusnaks filed a motion to amend their third party complaint to add an additional cause of action against BWA. The Rusnaks appeal the trial court’s orders on those motions, raising the following issues for our review: 1) whether the trial court erred in granting summary judgment to BWA, and 2) whether the trial court erred in denying their motion to amend the third party complaint. Concluding the trial court erred in granting summary judgment to BWA and abused its discretion in denying the Rusnaks’ motion to amend, we reverse and remand. * * *

There are issues for the factfinder regarding the nature of BWA’s obligations under the contract and whether it met them; therefore, summary judgment for BWA was improper at this stage. The trial court abused its discretion in denying the Rusnaks’ motion to amend their complaint to add an additional claim because no prejudice will result to BWA. The judgment of the trial court is reversed and this case is remanded for further proceedings consistent with this opinion.

In Tracy K. Barber v. Amy Henry , a 19-page opinion, Judge Riley writes:
Appellant-Respondent, Tracy K. Barber (Father), appeals the trial court’s Order, granting Appellee-Petitioner’s, Amy Henry (Mother), verified petition to modify foreign child support order. We affirm, in part, reverse, in part, and remand with instructions.

Father raises two issues on appeal, which we restate as follows:
(1) Whether the trial court abused its discretion by calculating Mother’s income at minimum wage when she is a medical doctor and has a historical income in excess of $150,000 but elects to stay at home with her children; and
(2) Whether the trial erred in concluding that Father was responsible for payment of expenses incurred prior to the filing of Mother’s modification petition. * * *

It is not our function to “force parents to work to their full economic potential or make their career decisions based strictly upon the size of potential paychecks.” Buehler, 576 N.E.2d at 1356. Although the trial court could have imputed no income to Mother, here, the trial court allotted Mother the minimum income in its calculation of child support. “While the Guidelines clearly indicate that a parent’s avoidance of child support is grounds for imputing potential income, it is not a necessary prerequisite.” In re Paternity of Pickett, 44 N.E.3d 756, 766 (Ind. Ct. App. 2015). Instead, “it is within the trial court’s discretion to impute potential income even under circumstances where avoiding child support is not the reason for a parent’s unemployment.” Id. Accordingly, the trial court did not abuse its discretion in its calculation of the weekly child support. * * *

Based on the foregoing, we conclude that trial court did not abuse its discretion when it imputed minimum wage to Mother after concluding that she was not voluntarily unemployed. We reverse the trial court with respect to the award of civil attorney fees and remand with instructions to determine which portion of these fees can be attributed to the protective order. We affirm the trial court with respect to all other reimbursement expenses.

In Mark D. Nichols v. State of Indiana , a 17-page opinion, Judge Brown writes:
Mark D. Nichols appeals his convictions for three counts of sexual misconduct with a minor as class B felonies and two counts of sexual misconduct with a minor as class C felonies. Nichols raises two issues which we revise and restate as: I. Whether the trial court abused its discretion in admitting evidence that Nichols did not attend an interview with a detective or ask about the investigation; and II. Whether the admission of testimony by a polygraph examiner and counselor resulted in fundamental error. We affirm.
NFP civil decisions today (5):

In the Term. of the Parent-Child Relationship: B.B. (Minor Child) and P.G. (Mother) v. The Ind. Dept. of Child Services (mem. dec.)

James Albert Costello and Lisa Renee Costello v. Wayne Zollman and Teresa Zollman (mem. dec.)

Jennifer Ansari v. Sirius Satellite Radio (Sirius XM) (mem. dec.)

Mary J. Coate v. Timothy D. Coate (mem. dec.)

Carrie Sturdivant v. Michael Sturdivant (mem. dec.)

NFP criminal decisions today (4):

Trevor Rujuwa v. State of Indiana (mem. dec.)

Mathias Gaumer v. State of Indiana (mem. dec.)

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

Brandy G. Hoebee v. State of Indiana (mem. dec.)

Posted by Marcia Oddi on May 31, 2016 12:51 PM
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Transfer list for week ending May 27, 2016

Here is the Clerk's transfer list for the week ending Friday, May 27, 2016. It is one page (and 16 cases) long.

No transfers were granted last week.

In one case last week, transfer was denied by a 2-2 vote, and thus failed:

  • Renita A. Marek v. Edward Marek - this is a 2/4/16 COA decision. Transfer Denied - Rush, C.J., and Rucker, J., vote to grant transfer. David and Massa, JJ., vote to deny transfer.

    ILB: This was a 2-1 COA opinion, originally classified as NFP, but then changed by a 3/11/16 order, where the COA reversed the trial court, the majority concluding: "The trial court’s findings do not support its conclusion that equal division is just and reasonable."

Posted by Marcia Oddi on May 31, 2016 10:27 AM
Posted to Indiana Transfer Lists

Law. - "EPA accuses Kokomo Opalescent Glass of violating air pollution permit" Historic Indiana company made glass for Tiffany

That is the headline to a May 3rd story in the Kokomo Tribune. The subhead: "Nation's oldest art glass factory will fight EPA on alleged violations." From the story, by Carson Gerber :

Kokomo Opalescent Glass and the Environmental Protection Agency are at odds over allegations that the company is violating federal clean-air standards and emitting elevated amounts of potentially toxic materials.

The EPA last month notified the company that it was violating the Clean Air Act by failing to obtain a federal permit that regulates glass manufacturers, and alleged that the violation has resulted in Kokomo Opalescent Glass (KOG) emitting elevated amounts of metals into the air such as cadmium, chromium and arsenic.

The company, which is the nation's oldest manufacturer of opalescent glass, currently operates under an Indiana Registration Permit, which was reissued most recently in 2004.

KOG holds that permit because it emits fewer pollutants than the more stringent federal permits required for art glass factories, according to the Indiana Department of Environmental Management.

However, the EPA has alleged the company should be required to obtain a federal Title V permit because of the furnaces it uses to melt glass.

According to the agency, KOG employs a continuously fired, natural-gas fueled melting furnace to produce colored sheet glass and glass blocks using raw materials that could emit hazardous air pollutants.

Under the National Emission Standards for Hazardous Air Pollutants set for glass manufacturers, operating a continuously fired furnace requires the company to obtain a more stringent Title V permit, which would increase the amount of oversight and air-pollution regulations the company has to follow.

Those requirements include emissions limits and increased monitoring, record keeping and reporting. It would also require KOG to report its compliance with permit conditions to IDEM.

The EPA has turned a critical eye towards art glass manufacturers all across the country after an investigation last year revealed a glass factory in Oregon was allegedly releasing dangerous amounts of toxic metals.

In that case, the U.S. Forest Service found moss collected from trees around art glass manufacturers in the Portland, Oregon, area had much higher concentrations of heavy metals than other areas in the city.

The findings prompted the Oregon Department of Environmental Quality (ODEQ) to set up an air monitoring system near the Bullseye Glass art-glass manufacturing facility to collect 24-hour air samples every few days over a 30-day period in October.

In February, the tests revealed high levels of cadmium and arsenic in the air, which prompted the ODEQ to begin investigating potential sources of the pollution.

According to the EPA, preliminary work suggested the metals found in the monitoring were coming in large part from Bullseye Glass. Elevated cadmium levels were also found in proximity to another Portland glass manufacturer called Uroboros Glass.

The investigation prompted the EPA to identify 14 other art-glass manufacturers, including KOG, that use similar processes as the factories in Oregon.

In February, the EPA Office of Air and Radiation sent a memo to its regional directors asking for assistance in determining whether there were emissions concerns at any art glass factory in their area.

That led to the EPA’s inspection of KOG’s manufacturing facilities located at 1310 S. Market St. on March 7. A month later, the agency issued its findings of violation to the company.

But KOG President Richard Elliott Tuesday adamantly denied the EPA’s allegations that the company’s manufacturing techniques have resulted in elevated emissions of hazardous pollutants.

“We’re probably the cleanest decorative art glass manufacturer on the planet,” he said. “I think Kokomo Opalescent Glass has been an incredibly responsible corporate citizen in this community for nearly 130 years.”

More from the story:
Elliott said the company now plans to fight the EPA’s findings during a conference to be held later this month in Chicago.

The biggest challenge is to the agency’s claim that KOG employs a continuously operated furnace, which would require the factory to receive a more stringent permit.

Elliott said the company does have a furnace on 24 hours a day, but they don’t continually produce glass. Instead, they use a “batch” process, in which the glass is inserted into the furnace and then removed until the next batch is put in.

“The definition of continually operated furnaces is subject to interpretation,” he said. “I’ve never described our furnaces as continuous.”

Elliott said the company also uses potentially toxic metals like cadmium, chromium and magnesium to color the glass, but those materials don’t emit pollution from the factory’s stacks because of the melting process they use.

“We are a decorative glass manufacturer and we need those pigments, but we use them responsibly,” he said. “We’re incredibly responsible with the ways that we use these pigments.”

Elliott said now he hopes he can convince EPA officials to see his side of the story. He said he plans to attend the conference later this month with the company’s furnace expert, environmental consultant and a lawyer to help make his case.

“I’m not going to roll over and play dead,” he said. “I’m going to show them why they’re wrong.”

Kokomo Glass made glass for Louis Tiffany (" In 1893 Louis Tiffany purchased over 10,000 pound of glass from Opalescent Glass Works"). I've watched glass sheets being made at the Kokomo Opalescent Glass plant. It is done entirely by hand, in small batches. You can watch the process online. Each sheet is mixed from globs of molten glass taken from an oven and handrolled on a special table. See the video.

In the middle of the 20th century, interest in stained glass declined to a point where original Tiffany lamps were occasionally found in flea markets. Most manufacture of stained glass stopped, but Kokomo continued. Interest started picking up again in the late 1960s, so much so that Kokomo stopped accepting new customers. With demand for stained glass increasing, a number of new plants began operating in the NorthWest. Most of them, I believe, used electrical-fired, rather than gas-fired, kilns.

One of the first of these new companies, Spectrum Glass, was in the news May 12th, in this story (among others) headlined "Washington's Spectrum Glass To Close Citing Financial Issues, EPA Scrutiny." Some quotes:

One of the leading makers of art glass in the Pacific Northwest has announced it will close its doors.

Spectrum Glass, based in Woodinville, Washington, is one of three top art glass producers in the region.

It’s a competitor with Portland’s Bullseye Glass, and a sometime collaborator with another Portland firm, Uroboros.

In a written statement, the company said a combination of weak post-recession sales and new EPA scrutiny on air emissions have made it financially infeasible to continue operations.

A long April 12th story from OPB News in Portland Oregon is headed: "Bullseye Glass Resumes Using Cadmium With Pollution Controls." It begins:
Bullseye Glass has announced it plans to resume using cadmium in its glassmaking operation now that the company has installed a pollution control device to reduce harmful emissions.

The company voluntarily suspended its use of cadmium and arsenic in February after a U.S. Forest Service study and follow-up air testing revealed heavy metal hot spots near the Southeast Portland facility. In March, Bullseye announced plans to install a pollution control device.

Last week, the company sent a letter to the Oregon Department of Environmental Quality notifying the agency that the pollution filtration equipment was installed and in use. The agency shared the company’s letter in a Tweet Monday night.

“We will be resuming the usage of raw materials containing cadmium in the controlled furnace,” company controller Eric Durrin wrote.

DEQ spokeswoman Jennifer Flynt said her agency has inspected the device.

In a news release Tuesday, Bullseye said the installation of the pollution device, called a baghouse, was “a first step in updating our equipment” in response to air monitoring results.

“Now that the filtration system (the baghouse) is installed, Bullseye is able to use raw materials containing cadmium to make glass again, in limited quantities in the controlled furnace,” the company said Tuesday. “This is good news for our neighbors who wanted Bullseye to install filtration systems, for artists both local and international, whose work depends on having red, orange and yellow compatible glass, and for our 150 employees, whose work also depends on these colors.”

The company says it plans to add more emission control systems in the future that will cover all of its furnaces.

Posted by Marcia Oddi on May 31, 2016 09:47 AM
Posted to Environment | General Law Related

Courts - "Indiana ready to try out commercial courts"

Indiana's new commercial courts project goes into operation tomorrow, June 1. Today the Fort Wayne Journal Gazette has this story by Sherry Slater. Here are some quotes:

A group of judges and lawyers from large and small firms statewide met regularly, reviewing other states’ commercial courts’ guidelines and crafting rules for Indiana.

“We’re learning from others,” said Michael Michmerhuizen, a partner with Barrett McNagny.

“We did not reinvent the wheel on this,” Bobay said of interim rules that define, among other things, the kinds of cases the court will accept. The committee borrowed heavily from Ohio and Michigan rules.

Bobay and Michmerhuizen led a three-hour continuing education session this month at the Allen County Bar Association’s office. They were joined by Karen Moses, a partner with Faegre Baker Daniels, and Shane Mulholland, a partner with Burt, Blee, Dixon, Sutton & Bloom. About 25 attorneys attended.

Attorneys are being encouraged to share feedback – good and bad – after they gain experience with commercial court. The working group plans to revise the rules along the way.

Presenters outlined the kinds of cases commercial court can handle: lawsuits involving trade secrets, contracts, noncompete agreements, sales transactions, antitrust law and franchise relationships.

What doesn’t qualify? Personal injury claims, eminent domain cases, routine debt collection, lemon law cases, federal law- or state law-based discrimination cases, most environmental cases and most employment law cases.

Indiana’s rules relied heavily on Michigan’s business court, which launched in October 2012, Bobay said. John Nevin, the Michigan Supreme Court’s spokesman, said the state has 16 business courts.

One was established in every circuit with three or more judges.

“It’s going really well,” he said, referring to 940 [Michigan] opinions that have already been rendered and posted online. * * *

Bobay sees some distinct advantages to going the commercial court route – for qualifying cases filed Wednesday or later.

Some cases are incredibly complex, he said. By designating a half dozen judges statewide to handle them, the court system is allowing those judges to develop a greater expertise in the intricacies of business, patent law and various relatively arcane rules.

Well-informed judges, presumably, would render predictable decisions when deciding similar cases.

Nevin said that advantage seems to be playing out in Michigan, where business court judges are developing expertise in business matters.

Commercial courts push lawyers to be prepared, work with opposing counsel when feasible and alert the court when a technicality might delay the process. Typical civil cases can take years to settle – 10 years or more. With this approach, lawyers agree not to request more time or use other delay tactics. * * *

Although some people have expressed concern that fast-tracking some commercial cases will shove other civil cases into the slow lane, Bobay doesn’t expect that to happen.

Taking complex cases away from judges who don’t want to deal with them will make the system work more efficiently, he said.

Commercial court is also designed to encourage opposing parties to settle disputes without going to trial in the first place.

See all the ILB's posts on the new commercial courts here.

Posted by Marcia Oddi on May 31, 2016 08:38 AM
Posted to Ind. Commercial Courts

Ind. Decisions - "Email access a clear black and white case to journalists"

The $$ Bloomington Herald-Times ran a signed editorial Sunday, written by Bob Zaltsberg, editor of The Herald-Times. Some quotes:

A career in journalism has taught me that people can see many shades of the same thing.

But an April ruling by the Indiana Supreme Court ... it’s really difficult for me to understand how something so clear blue to me can be red or green to the court. * * *

In April, the Indiana Supreme Court decided they could not force state legislators to release email correspondence, though it agreed that the Indiana Access to Public Records Act does apply to legislators. At the same time, four of the five justices said they would not address one key dispute that allows email correspondence to stay private. They said acting would violate the state’s constitutional separation of power.

If they can’t resolve a dispute over what records our legislative branch must release to the public it presumably serves, who can?

With all due respect to the justices, don’t you see that Hoosiers need your help? Without it, legislators are essentially free to do as they please without being concerned about judicial intervention. * * *

Indiana state government, as well as local governments in the state, are “of the people.” They get their power from the people, their money to spend from the people, and their actions are taken on behalf of the people. What they do should be available for public inspection, as spelled out in the Indiana Access to Public Records Act.

It seems logical that the judicial branch would provide the checks and balances on a legislative branch or an executive branch when it comes to matters of law.

That’s the only shade I see on this one.

Posted by Marcia Oddi on May 31, 2016 08:29 AM
Posted to GA and APRA

Ind. Decisions - Upcoming oral arguments this week and next

This week's oral arguments before the Supreme Court (week of 5/30/16):

Thursday, June 2

  • 9:00 AM - D.A. v. State of Indiana (48S02-1604-MI-00183) The Madison Circuit Court granted D.A.’s petition to expunge the records of his two felony convictions, but denied his petition to expunge records of a civil forfeiture arising from the same set of circumstances underlying the felony charges. A divided Court of Appeals reversed and remanded, holding that the trial court erred by not expunging records of a civil forfeiture when the factual basis for an expunged criminal conviction and civil forfeiture are the same. D.A. v. State, --- N.E.3d ---, 2015 WL 9589761 (Ind. Ct. App. Dec. 31, 2015). The Supreme Court has granted a petition to transfer the case and has assumed jurisdiction over the appeal.

    ILB: This was a Dec. 31, 2015, 2-1 COA opinion, see the ILB summary here (last summarized case) involving a matter of first impression re expungement in a civil forfeiture case. See the docket here.

  • 9:45 AM - State Farm Mutual Automobile Insurance Co. v. Carol Jakubowicz (45S05-1605-CT-253) When Jakubowicz filed a claim for underinsured motorist benefits, State Farm moved for summary judgment, arguing that its policy barred the claim as untimely because it was not filed within three years after the accident, but the Lake Circuit Court denied that motion. The Court of Appeals reversed, holding that the policy unambiguously bars the claim as untimely and so State Farm is entitled to summary judgment. State Farm Mut. Auto. Ins. Co. v. Jakubowicz, 45 N.E.3d 500 (Ind. Ct. App. 2015), vacated. The Supreme Court has granted a petition to transfer the case and has assumed jurisdiction over the appeal.

    ILB: This was an Oct. 29, 2015 COA opinion reversing the trial court:

    Even if we were to construe Jakubowicz’ notification to State Farm on December 10, 2009 that a claim was “likely” to be instituted, Jakubowicz would still not be in compliance with the provisions of the policy as these require both the notification of the claim and the lawsuit to be filed within the three-year contractual limitation period.

Next week's oral arguments before the Supreme Court (week of 6/6/16):

  • 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 5/30/16):

Thursday, June 2

  • 2:00 PM - Faulkner & Associates v. The Restoration Church (41A01-1506-PL-00706) In October of 2009, Randy Faulkner & Associates, Inc. (“RFA”) agreed to lease real property in Greenwood to The Restoration Church, Inc. (“the Church”). At the time, Randall W. Faulkner (“Faulkner”), the owner of RFA, attended the Church, and prior to the execution of the lease agreement several members of the Church and the Church itself invested about $450,000 to restore the property. Although RFA believed the monthly fair market rental value of the restored property to be about $14,000, RFA agreed to rent the property to the Church for one year at $100 per month. The lease agreement provided the Church with six one-year options to renew, but it is not disputed that the Church did not give the notice required to exercise its option to renew the lease. In late July of 2012, RFA gave the Church written notice to vacate the premises within thirty days. After vacating the premises, the Church filed suit against RFA and Faulkner for breach of contract. RFA and Faulkner countersued for breach of contract, tortious interference with a business relationship, and various theories of defamation. After a bench trial, the court found that RFA had breached its contract with the Church, relying on waiver and estoppel. The court then ordered RFA to pay the Church about $322,000 in damages, which the court calculated in part by using the Church’s actual monthly rent payments, a pro-rated amount of the Church’s and its members’ initial restoration costs, and the Church’s remaining option terms. The court also found for Faulkner on his intentional tort claims but concluded that Faulkner had not met his burden of proof to show damages on those claims. This appeal and cross-appeal ensued. The Scheduled Panel Members are: Judges Najam, Riley and Robb. [Where: French Lick Resort, French Lick, IN]
Friday, June 3
  • 10:00 AM - Schuchman/Samberg Investments Inc. v. Hoosier Penn Oil Co., et al (49A02-1508-MI-1051) In this certified interlocutory appeal, Schuchman/Samberg Investments (SSI) appeals the trial court's order granting summary judgment in favor of defendants Hoosier Penn Oil Company, Union Oil Company of California, and BP Corporation North America on SSI's claims under Indiana's Environmental Legal Actions Statute (ELAS) and Petroleum Releases Statute (PRS). With respect to its ELAS claim, SSI argues that the trial court erred in applying the six-year statute of limitations applicable to property damage claims rather than the 10-year statute of limitations applicable to contribution claims. SSI argues further that the trial court erred in determining the date on which its ELAS claim accrued. SSI also argues that the trial court erred in concluding that the PRS does not provide for a private cause of action under the circumstances of this case. The Scheduled Panel Members are: Judges Robb, Barnes and Altice. [Where: Court of Appeals Courtroom (WEBCAST)]

Next week's oral arguments before the Court of Appeals (week of 6/6/16):

  • No oral arguments currently scheduled.
ONLY those Court of Appeals oral arguments presented in the Supreme or Court of Appeals Courtrooms generally will be accessible via videocast.

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


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

Posted by Marcia Oddi on May 31, 2016 08:18 AM
Posted to Upcoming Oral Arguments

Friday, May 27, 2016

Ind. Gov't. - "Appeals court ruling brings an end to big box stores ripping off local communities’ tax dollars"

Don't get too excited. That is the headline to a story from Eclectablog (a respected Michigan political blog) - big h/t to Dan Carden of the NWI Times for spotting it. Some quotes from the blog piece, authored by Chris Savage,owner and publisher of Eclectablog:

Back in 2013, I penned a piece titled “Multibillion dollar Meijer, Inc. finds another way to screw Michigan cities and kids” that went somewhat viral, getting over 60,000 hits. The gist of the piece is that Meijer, along with other so-called “big box” stores in Michigan, have used something called “dark store” valuation when determining the value of their store. This method of valuation – which ultimately determines the store’s tax bill – compares the store to other buildings in the area. Often the comparison building is either sitting vacant and therefore has a much lower value than it would if it were open for business or the site has a deed restriction that prohibits a retail store from reopening on the site. These sorts of deed restrictions are often placed on buildings that have been sold by a corporation so that they can build a bigger one nearby. The deed restriction helps protect them against competitors moving into the area.
After describing the big box/dark box issue, which the ILB has covered in Indiana in a number of posts, the Michigan blog continues:
A Michigan Court of Appeals ruling this week brings an end to this disgusting practice:
The big, owner-occupied stores are never sold as going concerns, and the owners argue the best way of assessing their value for tax purposes is by comparing sales of similar big box stores that have closed and are sitting vacant.

But in a published opinion released Thursday, a three-judge panel of the Michigan Court of Appeals ruled in favor of the City of Escanaba and against Menard Inc. in just such a dispute.

The court said the comparable sales submitted by Menards were not a good basis for determining taxable value because, like many former big box stores that close and become vacant, they had deed restrictions that limited how a new owner could use the properties.

You can read the ruling HERE.

On top of this, a bill was introduced in the State House last month with bipartisan support – House Bill 5578 – that will essentially write the court’s ruling into law.

As I was writing the above, I got a note from another ILB reader, pointing to a just-published Detroit Free Press story, headed "Ruling could bring local governments more money from 'big box' stores." Some quotes:
LANSING -- In what is seen as a significant victory for local governments, the Michigan Court of Appeals has rejected a controversial method of assessing the value of “big box” stores that has cost Michigan local governments millions of dollars in property tax revenue. * * *

But in a published opinion released Thursday, a three-judge panel of the Michigan Court of Appeals ruled in favor of the City of Escanaba and against Menard Inc. in just such a dispute.

The court said the comparable sales submitted by Menards were not a good basis for determining taxable value because, like many former big box stores that close and become vacant, they had deed restrictions that limited how a new owner could use the properties.

The Free Press reported that when big box stores close one location, often to open a larger big box store nearby, they often put deed restrictions on the former property to keep away competitors.

In the Escanaba case, Appeals Court Judges Michael Talbot, Joel Hoekstra and Douglas Shapiro sent the case back to the Michigan Tax Tribunal, instructing the tribunal to "take additional evidence with regard to the market effect of the deed restrictions."

If that won't work, the tribunal should consider using another assessment method, which was favored by the city, based on the cost of constructing the building, less depreciation, the panel said.

ILB: In Indiana, the Tax Court has now heard two oral arguments in big box/dark box appeals, but there have been no rulings. See ILB posts from Jan. 4, 2016 and May 16, 2016.

Posted by Marcia Oddi on May 27, 2016 02:41 PM
Posted to Indiana Government

Ind. Gov't. - "State audits of local government few and far between"

Keith Roysdon of the Muncie Star-Press reported yesterday in a long story that begins:

MUNCIE — State audits of local government, historically an important means of discovering costly financial mistakes or wrongdoing by officials, have been dramatically cut back in Indiana.

The State Board of Accounts formerly audited cities and counties each year and school corporations every two years, but now, thanks to a change in state law, SBOA conducts audits only every four years — or earlier if certain red flags go up.

"Now it's based on risk," Todd Caldwell, director of audit services for the SBOA, told The Star Press.

The FBI is conducting an investigation of potential wrongdoing in city government, but the kind of oversight provided over the decades by the SBOA is a thing of the past: The city of Muncie and Delaware County government have not been audited for three years, local officials confirmed this week.

"The statute on frequency of audits changed last year from annual or biannual to a risk-based approach," Caldwell said. "The longest length of time between (examiners) being somewhere is four years."

Posted by Marcia Oddi on May 27, 2016 01:51 PM
Posted to Indiana Government

Ind. Decisions - "Anderson attorney placed on indefinite suspension"

In the Matter of: Stephen W. Schuyler is a "Published Order Converting Suspension for Noncooperation with the Disciplinary Process to Indefinite Suspension," filed May 26th.

Ken de la Bastide of the Anderson Herald Bulletin has a story today.

Posted by Marcia Oddi on May 27, 2016 01:43 PM
Posted to Ind. Sup.Ct. Decisions

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

For publication opinions today (1):

In J.B. v. State of Indiana , a 6-page opinion, Judge May writes:

The trial court ordered J.B., a juvenile, to pay restitution in two cases. It reduced the restitution orders to civil judgments and added civil judgment fees. J.B. appealed the civil judgment order and corresponding fees. The State concedes there was error and remand is appropriate. During the pendency of this appeal, the trial court rescinded the challenged order, making moot the issue J.B. raised on appeal. Because the issue is likely to recur and is of public importance, we address whether the trial court had authority to impose a civil judgment as part of a restitution order. It did not. * * *

After J.B filed this appeal, the trial court rescinded the August 17 Order that is the subject of this appeal. Thus, the issue J.B. raises is moot. A case should be dismissed as moot when no effective relief can be rendered to the parties before the court. W.R.S. v. State, 759 N.E.2d 1121, 1122-23 (Ind. Ct. App. 2001). However, a public interest exception to the mootness doctrine allows us to review issues of great public importance. Id. at 1123. The public interest exception is usually recognized in cases that involve issues likely to recur. Id. Whether a juvenile court may reduce a restitution order to a civil judgment has not been addressed in any published Indiana opinion. We accordingly address that issue. * * *

There is no judgment lien provision in the juvenile statute, and we decline to read into the juvenile code a provision not explicitly stated. * * * The trial court therefore did not have authority to order J.B. to pay the restitution owed to his victims as a civil judgment.

Conclusion. A trial court may not order a juvenile to pay restitution as a civil judgment because Ind. Code § 31-37-19-5(b)(4) does not permit it to do so. However, since the trial court has rescinded the August 17 Order, we will not disturb the proceedings of the trial court. Remanded.

NFP civil decisions today (1):

In The Lewallen Revocable Trust, et al. v. Fifth Third Mortgage Company (mem. dec.), a 7-page opinion, Judge Najam writes:

Randall Lewallen1 (“Randall”) appeals the trial court’s “Post-Appeal In Rem Judgment Entry and Decree of Foreclosure” granting Fifth Third Mortgage Company (“Fifth Third”) a decree of foreclosure on Randall’s one-half interest in the Lewallen Revocable Trust (“Trust”) property. On appeal, Randall raises three issues, which we consolidate and restate as follows: whether the law of the case doctrine precludes the trial court’s post-appeal order. We reverse. * * *

Here, in the first appeal, we decided the issues raised in this case, and no additional facts or evidence were elicited after we issued our memorandum decision.

We (once again) reverse the trial court’s order granting Fifth Third a decree of foreclosure on Randall’s one-half interest in the Property, and we remand to the trial court with instructions to enter judgment in favor of Randall as to his one-half interest in the Property.

NFP criminal decisions today (4):

Starlon Lewis v. State of Indiana (mem. dec.)

Daniel Joseph Kriete v. State of Indiana (mem. dec.)

Michael Francis Corley v. State of Indiana (mem. dec.)

Philip P. Fletcher v. State of Indiana (mem. dec.)

Posted by Marcia Oddi on May 27, 2016 11:08 AM
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Vacated COA opinion now reinstated after oral argument and 2-2 vote by Supreme Court

On Thursday, May 26th, the Supreme Court heard oral argument in the case of A.W. v. R.W. You may watch the oral argument here.

However, later that afternoon, the currently 4-member Court split 2-2 on disposition of the case. Accordingly, it issued this order, filed late on May 26th:

On March 17, 2016, the Court issued an order granting transfer of jurisdiction over this appeal from the Court of Appeals. That order vacated the decision of the Court of Appeals under Appellate Rule 58(A). After oral argument and further review, the four members of the Court are evenly divided on the proper disposition of the case.

This rare circumstance is anticipated in our rules, which provide that when “the Supreme Court is evenly divided after transfer has been granted, the decision of the Court of Appeals shall be reinstated.” Appellate Rule 58(C).

The Court of Appeals decision, Wood v. D.W. ex rel. Wood, 47 N.E.3d 12 (Ind. Ct. App. 2015), is hereby reinstated, and the Clerk of Courts is directed to certify that decision.

This Court of Appeals opinion, Wood v. D.W. ex rel. Wood, as issued Nov. 30, 2015 by the Court of Appeals, has been reinstated.

ILB note: Although the Supreme Court order refers to the "The Court of Appeals decision," the revised Appellate Rule 65(a) distinguishes between COA "opinions" and "decisions" and reserves "decision" for those not to be "published" ...

Posted by Marcia Oddi on May 27, 2016 10:36 AM
Posted to Ind. App.Ct. Decisions | Ind. Sup.Ct. Decisions

Ind. Courts - Still more on "IU goes to court to oppose new fetal tissue law"

Updating this ILB post from yesterday, here is a long, important May 26th story by Rick Seltzer in Inside Higher Ed headed "Turning Research Into a Felony: Indiana U says important research on Alzheimer's disease is imperiled by new state abortion law." It begins:

Indiana University on Wednesday challenged a new state abortion law in federal court, arguing it restricts academic freedom by criminalizing the acquisition or transfer of fetal tissue used for research.

The move stands out because the university is challenging the actions of the state that supports it. The dispute also comes at a time when many state and federal legislators are proposing laws to curtail abortion. And it arrives as lawmakers scrutinize fetal tissue research in the wake of a series of controversial videos released in 2015 showing Planned Parenthood officials discussing the use of fetal tissue.

The Indiana law in question was approved as House Bill 1337 in March, and it goes into effect at the beginning of July. Its provisions include requiring miscarried and aborted fetuses to be buried or cremated. Other parts of the law prohibit individuals from acquiring, receiving, selling or transferring fetal tissue. It makes the transfer or collection of fetal tissue a felony punishable by up to six years in prison.

Supporters of the law have argued it is a moral move affirming the value of human life. But IU leaders claim it leaves the university in an untenable position. The university legally obtained fetal tissue for important research, they said. Yet the law would leave it trapped with that tissue and unable to transfer it, putting its researchers at legal risk.

The law would also prohibit any researchers from obtaining additional fetal tissue for future needs.

Indiana is arguing the law is unconstitutionally vague and burdensome. The university’s complaint also said the law violates the First Amendment academic freedom rights of Debomoy Lahiri, a professor of psychiatry and a primary investigator for its Stark Neurosciences Research Institute in Indianapolis. IU and Lahiri conduct Alzheimer’s disease research using mixed cell cultures and components like RNA and DNA derived from fetal tissue.

Their projects include research funded by the National Institutes of Health, which requires researchers to retain samples they use, IU said in its complaint. The NIH requires researchers to share those samples upon request so that their work can be verified. But that would mean transferring fetal material, making it impossible for IU to comply with both the new law and NIH regulations, the university said.

The story also provided a link to the IU May 25th complaint, which the ILB has made available here.

Posted by Marcia Oddi on May 27, 2016 08:54 AM
Posted to Indiana Courts

Thursday, May 26, 2016

Ind. Decisions - 7th Cir. decides Wis. case re arbitration clauses and NLRA

In Jacob Lewis v. Epic Systems Corporation (WD Wis.), a 22-page opinion, Chiuef Judge Wood writes:

Epic Systems, a health care software company, required certain groups of employees to agree to bring any wage-and-hour claims against the company only through individual arbitration. The agreement did not permit collective arbitration or collective action in any other forum. We conclude that this agreement violates the National Labor Relations Act (NLRA), 29 U.S.C. §§ 151, et seq., and is also un-enforceable under the Federal Arbitration Act (FAA), 9 U.S.C. §§ 1, et seq. We therefore affirm the district court’s denial of Epic’s motion to compel arbitration. * * * Because it precludes employees from seeking any class, collective, or representative remedies to wage-and-hour dis-putes, Epic’s arbitration provision violates Sections 7 and 8 of the NLRA. Nothing in the FAA saves the ban on collective ac-tion. The judgment of the district court is therefore AFFIRMED.

Posted by Marcia Oddi on May 26, 2016 01:57 PM
Posted to Ind. (7th Cir.) Decisions

Ind. Decisions - Court of Appeals issues 3 opinion(s) today (and 5 NFP memorandum decision(s))

For publication opinions today (3):

In John Doe #1, et al. v. Indiana Department of Child Services, a 2-1, 18-page opinion, Judge Altice writes:

John Doe #1 (Doe) and his family, wife – Jane Doe #1, two young adult sons – John Doe #2 and John Doe #3, and minor daughter – Jane Doe #2, filed a civil action against the Indiana Department of Child Services (DCS) alleging negligence in failing to protect Doe’s identity as the reporting source of suspected child neglect. Although acknowledging that the disclosure violated Ind. Code § 31-33-18-2, DCS filed a motion for summary judgment arguing that the statue did not provide for a private right of action. The trial court granted summary judgment in favor of DCS and dismissed the action with prejudice. On appeal, the Does argue that summary judgment was improperly granted because DCS owed Doe a duty to maintain confidentiality under both the statute and common law. We reverse and remand. * * *

The parties present us with an issue of first impression: whether I.C. § 31-33-18-2 confers a private right of action for a violation of DCS’s statutory duty to protect a reporter’s identity. * * *

Thus, the statute requires redaction of DCS reports before they are provided to certain individuals, like Ditton. DCS does not dispute this and acknowledges that its own policy manual and written code of conduct require confidentiality. While the disclosure of Doe’s identity clearly violated the statute, DCS argues that the statute does not confer a private right of action. * * *

A special relationship was clearly established when Doe made the call to the DCS hotline and, after making his report, indicated his reluctance to give identifying information. Justifiably relying on the DCS employee’s explicit assurance that such information would be kept confidential, Doe then provided the information. The reasonable foreseeability of harm to Doe and his family upon improper disclosure of this information was evident, as implicitly recognized by DCS’s own policies and I.C. § 31-33-18-2. Ultimately, the Does were left in a far worse position after Doe called the hotline and relied on DCS’s promise. * * *

Under the specific circumstances of this case, the Does have established the existence of a private duty owed to Doe by DCS. Accordingly, we reverse the entry of summary judgment and remand this action to the trial court for further proceedings. Judgment reversed and cause remanded.

Kirsch, J., concurs.
Vaidik, C.J., dissents with opinion. [that begins on p. 12] I respectfully dissent. Although the majority left “for another day” the issue of whether Indiana Code section 31-33-18-2 creates a private right of action when DCS fails to protect the identity of a person who reports child abuse or neglect, I believe that this issue must be addressed and that the legislature did not intend to create a private right of action. And because there is no private right of action under the statute, there is no special relationship between DCS and a person who reports child abuse or neglect when that DCS employee essentially reiterates the requirements of the statute to the reporter. Put differently, no special relationship was created when Doe called the DCS hotline and was told by the DCS employee that his information was confidential, because the DCS employee’s response was nothing more than a statement of what Section 31-38-18-2 requires. I would therefore affirm the trial court’s grant of summary judgment in favor of DCS. * * *

The purpose of the confidentiality requirement is to encourage reporting—not to protect against the harm that might occur when a reporter’s identity is revealed. Moreover, the statute contains no civil-enforcement provisions, and the legislature has provided that public employees or officials who disclose confidential information are subject to a Class A infraction. * * *

In addition, this Court has already determined that victims of child abuse or neglect do not have a private right of action against people who fail to report the child abuse or neglect. See Sprunger v. Egli, 44 N.E.3d 690, 693 (Ind. Ct. App. 2015); C.T. v. Gammon, 928 N.E.2d 847 (Ind. Ct. App. 2010). Accordingly, if victims of child abuse or neglect do not have a private right of action under this statutory scheme, then it logically follows that reporters of child abuse or neglect should not either. I therefore conclude that the legislature did not intend to create a private right of action when DCS violates Section 31-33-18-2’s confidentiality requirement.

Also, I disagree with the majority’s conclusion that “DCS owed Doe a private duty based on the common law.” * * * To allow a common-law claim in these circumstances would provide an end-run around the legislature’s intent that Section 31-38-18-2 does not create a private right of action when DCS fails to protect a reporter’s identity.

In In Re the Adoption of W.M. (Minor Child), D.M. and J.M. v. F.F., M.F., and The Indiana Department of Child Services, an 8-page opinion, Judge Baker writes:
J.M. (Grandfather) and D.M. (Grandmother) (collectively, Grandparents) appeal the order of the Greene Circuit Court transferring their adoption petition to the Monroe Circuit Court. Finding no error, we affirm. * * *

Grandparents have one argument on appeal: “[e]xclusive jurisdiction over the adoption proceeding pertaining to [Child] lies with the Greene Circuit Court.” Appellant’s Br. p. 3. They argue that, because they filed an adoption petition in Greene County before Aunt and Uncle filed an adoption petition in Monroe County, it was impermissible for the Greene Circuit Court to transfer the case to the Monroe Circuit Court. * * *

It is clear that Grandparents were allowed to file their adoption petition in Greene County, under Indiana Code section 31-19-2-2(a)(1), as that is their county of residence. But Aunt and Uncle were also allowed to file their adoption petition in Monroe County, under Indiana Code section 31-19-2-2(a)(2), as that is where Child’s wardship was located. Thus, both courts have “jurisdiction,” as either can hear adoption cases. The question becomes whether, as Grandparents contend, the Monroe Circuit Court was divested of jurisdiction when Grandparents filed their adoption petition in the Greene Circuit Court.

Grandparents’ argument that the Greene Circuit Court had “exclusive jurisdiction” is foreclosed by our decision in In re Adoption of Z.D., 878 N.E.2d 495 (Ind. Ct. App. 2007). * * *

Since the first adoption petition did not create “exclusive jurisdiction,” we went on to decide the case based on preferred venue: * * *

For precisely the same rationale, the Monroe Circuit Court was the preferred venue in this case. All of the following are pending in that court: (i) Child’s CHINS case; (ii) a termination of parental rights case; and (iii) Aunt and Uncle’s adoption petition. Moreover, Grandparents successfully intervened in the CHINS case before the Monroe Circuit Court. * * *

In essence, Grandparents are asking us to reverse the trial court for proactively and correctly solving the issue that arose in the Z.D. case. We decline to do so.

In Joseph Sidener v. State of Indiana , a 10-page opinion, Judge Baker writes:
Joseph Sidener appeals his conviction for Burglary, a Class C felony, as well as the finding that he is an habitual offender. Sidener argues that law enforcement’s use of a GPS tracking device to track the movements of a vehicle in which he was a passenger violated his rights under the Fourth Amendment to the United States Constitution and Article 1, Section 11 of the Indiana Constitution. We find that Sidener may not challenge the constitutionality of the search, as he lacked a reasonable expectation of privacy in the vehicle. We also find Sidener’s challenges to the sufficiency of the evidence and to the State’s amendment of the charging information to be unavailing. Accordingly, we affirm the judgment of the trial court. * * *

Sidener makes three arguments on appeal. He first argues that any evidence relating to the GPS monitoring of the vehicle should have been suppressed because the search exceeded the scope of the warrant. He also argues that the evidence presented was insufficient to support his conviction. Finally, he argues that the State should not have been allowed to amend the charging information with regard to the habitual offender allegation so close to the start of trial. * * *

[GPS Search] However, Sidener’s case does not raise these concerns because the government had no interest in Sidener’s movements, nor did it seek to invade his privacy. In fact, the officers did not even know that Sidener was a passenger until they stopped the vehicle. Accordingly, Sidener has not shown that his personal interests were affected by the GPS monitoring of Green’s vehicle and, therefore, he cannot challenge the search of the vehicle under the U.S. or Indiana constitution.

NFP civil decisions today (0):

NFP criminal decisions today (5):

Cortez Jones v. State of Indiana (mem. dec.)

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

Eric John Tulk v. State of Indiana (mem. dec.)

Loretta A. Manier v. State of Indiana (mem. dec.)

Nicholas G. Collins v. State of Indiana (mem. dec.)

Posted by Marcia Oddi on May 26, 2016 11:15 AM
Posted to Ind. App.Ct. Decisions

Ind. Gov't. - Legislative interim study committee list finalized

Inside Indiana Business has the entire list (an 8-page resolution), as part of a brief story by Alex Brown headed "Study Committee Topics Set." Most notably:

Among the topics are civil rights issues related to gender identity and sexual orientation, which stems from Senate Bill 344 that died in the previous legislative session.

Posted by Marcia Oddi on May 26, 2016 09:17 AM
Posted to Indiana Government

Ind. Courts - More on "IU goes to court to oppose new fetal tissue law"

Updating this ILB post from May 23rd, and this post from May 24th ("IU's motion to intervene has been denied"), IU yesterday:

As expected, Indiana University filed its own, separate lawsuit Wednesday challenging Indiana’s new abortion law that will take effect July 1.

The complaint was filed in the U.S. District Court for the Southern District of Indiana a day after that court denied IU’s request to join a lawsuit brought in April by Planned Parenthood of Indiana and Kentucky Inc. and the American Civil Liberties Union of Indiana in relation to House Enrolled Act 1337. The court denied IU’s request because its reasons for filling a lawsuit are different from those of Planned Parenthood and the Civil Liberties Union.

IU spokesman Mark Land said the details of the lawsuit IU filed Wednesday are essentially the same as the previous complaint.

Those quotes are from the start of a story today in the $$ Bloomington Herald-Times, reported by Michael Reschke.

Posted by Marcia Oddi on May 26, 2016 09:07 AM
Posted to Indiana Courts

Wednesday, May 25, 2016

Ind. Decisions - 7th Circuit "parking while black" 2-1 split, Hamilton dissents

The 16-page, 2-1 May 17th opinion, out of Wisconsin, is USA v. Randy Johnson. From Judge Easterbrook's opinion for the majority:

Police in Milwaukee saw a car stopped within 15 feet of a crosswalk, which is unlawful unless the car is “actually engaged in loading or unloading or in receiving or discharging passengers”. Wis. Stat. §346.53(5). One police car drew up parallel to the stopped car, and an other drew up behind. Shining lights through the car’s windows (it was after sunset), police saw a passenger in the back seat try to hide a firearm. Randy Johnson, the passenger, was prosecuted for possessing a weapon that, as a felon, he was forbidden to have. 18 U.S.C. §922(g)(1). After the district court denied his motion to suppress the gun, see 2014 U.S. Dist. LEXIS 135367 (E.D. Wis. Sep. 25, 2014), adopting 2014 U.S. Dist. LEXIS 135374 (E.D. Wis. Aug. 7, 2014), Johnson entered a conditional guilty plea and was sentenced to 46 months’ imprisonment. His sole argument on appeal is that the district judge should have granted the motion to suppress. * * *

HAMILTON, Circuit Judge, dissenting. The police violated the Fourth Amendment rights of defendant Johnson and the four other occupants of the car. What happened here was extraordinary. No other court has tolerated such tactics in such a case. Five officers in two police squad cars seized the passengers of a parked car. They swooped in on the car, parking close beside and behind it, with bright lights shining into it from both directions, opened the doors, pulled all passengers out, and handcuffed them. The passengers were seized before the officers had any sign that one passenger might have a firearm.

The sole basis offered to justify this highly intrusive, even terrifying, “investigatory stop” was a suspected parking violation! The phenomenon of police seizures for “driving while black” has long been recognized. See, e.g., David A. Harris, Driving While Black and all Other Traffic Offenses: The Supreme Court and Pretextual Traffic Stops, 87 J. Crim. L. & Criminology 544 (1997). In this case, we seem to be taking the further step of enabling police seizures for “parking while black.”

"7th Cir. Sides With Cops in ‘Parking While Black' Spat," is the heading of a Bloomberg BNA story by Lance J. Rogers, dated May 19th, that begins:
Five members of a special police task force didn't act unreasonably when they swooped down with two squad cars on a stationary vehicle in a high-crime area, yanked the occupants out and cuffed them while purportedly checking to see whether the car had been parked illegally, a divided U.S. Court of Appeals for the Seventh Circuit ruled May 17.

The decision is notable because a dissenting judge accused his colleagues of giving cops the green light to seize minorities for minor infractions in the hope that the detention “will lead to bigger and better things.”

[h/t to Howard Bashman, How Appealing]

Posted by Marcia Oddi on May 25, 2016 02:59 PM
Posted to Ind. (7th Cir.) Decisions

Ind. Decisions - Why is this NFP? Notes today from two readers

Brighthouse service is back up. While it was down I receievd notes from two different readers asking about two different Court of Appeals memorndum (NFP) decisions today:

  • The Estate of Diana K. Blake by Nicole Walker, Personal Representative v. Select Specialty Hospital-Fort Wayne, Inc. (mem. dec.) - A South Bend attorney-reader writes to ask: "Any idea why this case was NFP today?"

    In the 9-page opinion, Judge Kirsch writes:

    The Estate of Diana K. Blake (“Blake”) by Nicole Walker, Personal Representative (“the Estate”), appeals the trial court’s grant of summary judgment in favor of Select Specialty Hospital-Fort Wayne, Inc. (“the Hospital”) on the Estate’s medical malpractice claim. The Estate raises two issues of which we find the following dispositive: whether the trial court erred in granting summary judgment in favor of the Hospital because the Estate contends that the designated evidence established a genuine issue of material fact that the Hospital breached its standard of care to Blake. We reverse and remand.
    ILB: Of course there is no way to know why a COA panel designates a case as NFP. Many attorneys may agree with the ILB that any reversal should be "for publication."

  • D.S. II v. M.C. (mem. dec.) - An Indianapolis attorney comments: "I get that they didn't have a sufficient record, but I think this is the first case to say a DOC inmate can't get a protective order?"

    In the 5-page opinion, Judge Baker writes:

    D.S. appeals the judgment of the trial court denying his petition for a protective order against M.C. Finding no error, we affirm. * * *

    There is no indication from the record that D.S. attempted to engage this process [Offender Grievance Process (OGP)]. He does not claim to have filed a grievance and it does not appear that he has taken any action to bring his concerns to the attention of anyone at the prison. We decline to insert ourselves into a dispute between an inmate and an employee of a prison absent any indication that the administration of the prison has been given an opportunity to address the issue. We simply do not have an adequate record to review the issue and the administration has not been given an opportunity to correct any errors it may have made.

Posted by Marcia Oddi on May 25, 2016 01:41 PM
Posted to Ind. App.Ct. Decisions | Why is this NFP?

Ind. Decisions - Court of Appeals issues 1 opinion(s) today (and 14 NFP memorandum decision(s))

For publication opinions today (1):

In Kelly C. Mullen v. State of Indiana , a 16-page opinion, Judge Crone writes:

The State charged Kelly C. Mullen with level 4 felony possession of a firearm by a serious violent felon (“SVF”) and class A misdemeanor resisting law enforcement. Mullen now brings this interlocutory appeal challenging the trial court’s denial of his motion to suppress. He contends that the handgun recovered by police was seized in violation of the federal constitutional guarantees against unreasonable search and seizure. We conclude that the police had reasonable suspicion that criminal activity had occurred justifying an investigatory stop of Mullen and a reasonable belief that he was armed. Therefore, we conclude that the handgun was constitutionally seized and affirm the denial of Mullen’s motion to suppress. * * *

When Mullen told the police that he had a knife and reached toward his pockets as though he was going to draw it, the police were permitted under the Fourth Amendment to secure Mullen and do a patdown search. Accordingly, we affirm the denial of Mullen’s motion to suppress the fruits of that search.

NFP civil decisions today (5):

Robert J. Fiedler and Dianne C. Fiedler v. LaGrange County Regional Utility District (mem. dec.)

Kirk R. Jocham v. Discover Bank (mem . dec.)

Jodie Meyer v. Elizabeth Cochran (mem. dec.)

D.S. II v. M.C. (mem. dec.)

The Estate of Diana K. Blake by Nicole Walker, Personal Representative v. Select Specialty Hospital-Fort Wayne, Inc. (mem. dec.)

NFP criminal decisions today (9):

M.L.M. v. State of Indiana (mem. dec.)

Terry Criss v. State of Indiana (mem. dec.)

Jerome C. Lockhart v. State of Indiana (mem. dec.)

James A. Love v. State of Indiana (mem. dec.)

Marlon Coley v. State of Indiana (mem. dec.)

Mark Johnson a/k/a Garland P. Jeffers v. State of Indiana (mem. dec.)

William Alan Seydel v. State of Indiana (mem. dec.)

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

Jonathan J. Tipton v. State of Indiana (mem. dec.)

Posted by Marcia Oddi on May 25, 2016 11:31 AM
Posted to Ind. App.Ct. Decisions

Ind. Courts - 7th Circuit Indiana opinion yesterday re sentencing

In USA v. John Lewis (SD Ind., Magnus-Stinson), a 13-page opinion, Judge Hamilton writes:

A jury found appellant John A. Lewis guilty of five federal sex offenses. The district court sentenced Lewis, who is 66 years old and in poor health, to the statutory mandatory minimum sentence of 35 years in prison. Lewis has appealed, but he does not challenge either his convictions or the prison term. The district judge, while recognizing that the chances Lewis will survive his prison sentence are low, also included in his sentence a life term of supervised release. The only issues before us concern the supervised release portion of his sentence. (Lewis also raised a minor forfeiture issue, but that has been resolved by agreement; we do not address it.)

Lewis raised no objections in the district court to any aspect of the supervised release term and conditions. Represented by new counsel on appeal, however, Lewis argues that the court’s findings and explanations were not sufficient and that we must vacate the sentence and remand for resentencing, or at least for further consideration of supervised release. See generally, e.g., United States v. Kappes, 782 F.3d 828 (7th Cir. 2015); United States v. Thompson, 777 F.3d 368 (7th Cir. 2015); United States v. Siegel, 753 F.3d 705 (7th Cir. 2014).

We affirm the judgment of the district court. Sound application of principles of waiver and forfeiture convinces us there is no need to send this case back to the district court. The defense had ample advance notice of the terms of proposed release that were contemplated and ultimately imposed. Before sentence was actually imposed, the court expressly invited objections and requests for further findings or elaboration. The defense expressly declined the invitation. That was waiver. Even if it were deemed only forfeiture, there was no plain error requiring remand.

Posted by Marcia Oddi on May 25, 2016 10:21 AM
Posted to Ind. (7th Cir.) Decisions

Ind. Decisions - Still more on May 6, 2016 Trial Court Order in State v. IBM Case, including IBM's filings this morning

Background:

The ILB had two posts on the IBM case on May 9th. The first was headed "Statement on May 6, 2016 Trial Court Order in State v. IBM Case," and quoted a news release from Peter Rusthoven, Barnes & Thornburg LLP, who is representing the State of Indiana.

The second post quoted from a FWJG story by Niki Kelly, including:

A Marion County judge on Friday issued a bombshell ruling, refusing to give any damages to the state even though the Indiana Supreme Court found in March that IBM breached its $1.3 billion welfare contract with Indiana. The case was remanded to Marion County Judge David Dreyer to determine an appropriate amount of compensation. Indiana had claimed $175 million in damages. * * *

The newest ruling is the latest volley in a six-year dispute about whether IBM failed to deliver its part of a deal to privatize Indiana's welfare system.

[Peter] Rusthoven said Dreyer's new decision came before a 10-day period for the state to move for a mandatory judge change. That motion was filed Friday afternoon and Barnes & Thornburg LLP "will promptly take steps seeking to have the trial court’s ruling set aside," a statement said.

Clint Roswell, spokesman for IBM, said "it's unfortunate that the private attorneys representing the state in the case have decided to prolong this case, all at the great expense of Indiana taxpayers."

The State has paid Barnes & Thornburg more than $11.5 million in the legal battle with IBM.

Here are the:

What has Happened Since:

There have been filings with both the Marion County Superior Court, and with the Indiana Supreme Court, including the following.

  • State of Indiana filings in the Indiana Supreme Court [new State v. J.Dreyer docket]:
    • State of Indiana's Verified Petition for Writ in Aid of this Court's Appellate Jurisdiction (filed May 23, 2016)
    • State of Indiana's Verified Petition for Writ of Mandamus and Writ of Prohibition (filed May 23, 2016)
    • Brief in Support of State of Indiana's Verified Petition for Writ of Mandamus and Writ of Prohibition (filed May 23, 2016 - 155 pp)
    The Supreme Court ordered on May 24th: " Any briefs opposing issuance of the writ or any supplemental records must be filed with the Clerk of the Supreme Court, Court of Appeals, and Tax Court, on or before June 14, 2016."

    Dave Stafford of the Indiana Lawyer has a good walk-through of all the above in a story posted yesterday evening,

The ILB has this morning obtained a copy of the statement by IBM in response to the recent filings made by the State of Indiana. IBM is represented by Andrew W. Hull, of Hoover Hull Turner*:

I offer the following statement in response to the recent filings made by the State of Indiana:

The State of Indiana has filed two petitions with the Indiana Supreme Court.

First, the State filed a “Petition for Writ in Aid of Appellate Jurisdiction “ asking the Supreme Court to vacate the trial judge’s May 6, 2016 order denying the State damages. The State’s challenges to the validity of that 24-page order are factually incorrect.

  • The State’s damage claim was fully litigated during and following the six-week trial in which the State submitted all its evidence, made closing arguments, and expanded those arguments in post-trial briefs. Ultimately, the Supreme Court, on remand, instructed the trial court to make a “calculation” of the parties’ damages. The trial court did so correctly based on the trial record. It is wrong for the State to suggest that the “calculation” of damages was made without giving the State a sufficient opportunity to be heard.

  • The State is also wrong to claim that the trial court considered evidence the Supreme Court said it should not. The Supreme Court provided no instruction to the trial court regarding evidence to be considered in deciding the damages issue. In fact, the extensive evidence of benefits IBM provided the State under the contract is directly relevant to whether the State incurred any monetary damages as a result of any breach by IBM. The same is true of the evidence showing that IBM was not responsible for the costs that the State claims as damages. The trial judge’s damages order makes these points clear.

  • The trial court has been affirmed both by the Indiana Court of Appeals and subsequently, the Indiana Supreme Court that the State owes IBM at least $49,510,795, which consists of $40,000,000 in assignment fees and $9,510,795 in equipment fees.
Second, the State filed a “Petition for Writ of Mandamus and Writ of Prohibition” asking the Supreme Court to order that the trial court grant the State’s May 6, 2016 motion for a change of judge. The State is not entitled to a new judge because, among other things, no issue before the court requires either a hearing or new evidence, both of which are required for a change of judge motion.
ILB: In addition, IBM has filed three documents this morning in the Marion County Superior Court.
  • IBM filings with Marion Superior Court, Civil Division 10 [docket]: - This morning IBM has filed this following:
    • IBM Response to Motion for a Change of Judge (filed May 25)
    • IBM Response to Court Orders Upon Remand Regarding IBM Fees for Change Orders 119 and 133 (filed May 25)
    • IBM Motion for Post-Judgment Interest (filed May 25)
Quotes from this morning's IBM motion for post-judgment interest:
International Business Machines Corporation (“IBM”), by its counsel, respectfully requests that the Court assess post-judgment interest against the State of Indiana, acting on behalf of the Family & Social Services Administration (the “State”) on the $49,510,795 awarded to IBM in 2012, affirmed on appeal by both the Court of Appeals and the Supreme Court, and yet still unpaid by the State. * * *

5. As demonstrated in the table below, the amount of post-judgment interest accrued to date is $9,115,411 as of May 23, 2016. That amount increases by $8,138.76 with each passing day: [table omitted] * * *

WHEREFORE, IBM respectfully asks that the Court order the State to pay post-judgment interest in the amount of (1) $9,115,411 through May 23, 2016 plus (2) $8,138.76 per day until the judgment is satisfied.

___________
*Disclosure: Although Hoover Hull Turner sponsors the ILB, the ILB remains editorially independent.

Posted by Marcia Oddi on May 25, 2016 09:46 AM
Posted to Ind. Trial Ct. Decisions

Tuesday, May 24, 2016

Ind. Courts - More on: "IU goes to court to oppose new fetal tissue law"

Updating this ILB post from May 23rd, IU's motion to intervene has been denied. Access the 11-page ruling by federal magistrate Debra McVicker Lynch. A quote:

Finally, allowing IU to participate in this case would disrupt the orderly presentation of facts and law in this case and in IU’s case.

All that said—and to repeat—denial of IU’s motion to intervene does not foreclose IU from filing its own case or seeking an expedited schedule for discovery and resolution of its preliminary injunction motion before July 1.

Posted by Marcia Oddi on May 24, 2016 04:50 PM
Posted to Ind Fed D.Ct. Decisions

Ind. Courts - Report of the Tax Court Task Force is now available

As the ILB has mentioned several times, including most recently at the end of this April 27, 2016 post:

The order creating the Tax Court Task Force was issued May 15, 2015, and concludes:

The Task Force shall provide a written report to this Court not later than May 1, 2016, and provide copies of its report to the Indiana Judicial Center and Indiana Legislative Council.

The ILB has been inquiring about the availability of this public document. Today the document was posted on a "Reports" page of the General Assembly's website, along with other, earlier reports to the General Assembly from the Supreme Court.

The ILB has extracted pp. 3-35 of the report, which are the 7-page "Findings and Recommendations of the Ad Hoc Advisory Task Force to Study Resources and Caseload of the Indiana Tax Court" plus the 24-page "Final Report of the National Center for State Courts" to the task force (completed in Dec. of 2015) - you may access the combined document here.

ILB readers may recall that on Sept. 14, 2014, the ILB had a lengthy post on the Tax Court backlog, headed "Ind. Courts - A look at the Indiana Tax Court." An update followed on Nov. 18, 2014.

[More]
Your attention is directed to the observations and recommendations of the NCSC, beginning at p. 27 of the document the ILB has posted.

Posted by Marcia Oddi on May 24, 2016 04:05 PM
Posted to Ind. Tax Ct. Decisions | Indiana Courts | Indiana Government

Ind. Courts - "Purvi Patel appeals in feticide, neglect case"

Here is Jill Disis' lengthy Indianapolis Star story on yesterday's oral argument before the Indiana Court of Appeals in the Purvi Patel case.

For related links to the briefs and the video of the oral argument, see this ILB post from yesterday.

Posted by Marcia Oddi on May 24, 2016 01:38 PM
Posted to Indiana Courts

Ind. Courts - "Defense lawyer can't reach ex-attorney"

The ILB has had a number of stories referencing former Indiana law blogger E. Thomas Kemp, Richmond, both from before and after his legal troubles.

As I wrote in 2014: Kemp, Doug Masson, and I all started blogging at about the same time, over ten years ago. A link to Kemp's blog, KEMPlog, used to appear in the right-hand column of the ILB, as an Indiana resource, but I removed it a number of years ago because it appeared to be moribund. (The ILB still links to Masson's blog.) Here is an ILB reference to Kemp's blog, from 2006.

Today Jason Truitt reports in a long story the Richmond Palladium-Item that begins:

With his trial just about a month away, a former Wayne County attorney has stopped responding to his defense lawyer, leading to a court order that he appear for a meeting Wednesday in Superior Court II.

E. Thomas Kemp, 49, of Greens Fork, has a trial scheduled for 8:30 a.m. on June 20 in front of Judge J. Steven Cox of Franklin County Circuit Court No. 1. Cox was appointed as a special judge in the case after Judge Gregory Horn recused himself because of Kemp's former work as a Wayne County public defender.

The Wayne County Prosecutor's Office filed 10 Class D felony theft charges against Kemp on Aug. 14. He is accused of mishandling money in a trust fund in one count and of accepting money without performing any legal services in the nine other counts.

Last week, the prosecutor's office added nine misdemeanor counts of criminal conversion to the list of charges. The dates and listed victims for those nine counts match nine of the 10 theft charges Kemp already faced.

Also last week, Chief Deputy Prosecutor William Hoelscher filed a request for a status conference. Hoelscher's motion said he had been in negotiations with Kemp's defense attorney, Nathaniel Connor, "in an attempt to resolve the pending charges against the Defendant and/or determine if the Defendant in this matter wishes to proceed to trial."

The hangup with those discussions was the fact that Connor had been unable to contact Kemp by telephone despite repeated attempts since May 3, according to Hoelscher's motion.

Posted by Marcia Oddi on May 24, 2016 01:25 PM
Posted to Indiana Courts

Ind. Decisions - Court of Appeals issues 2 opinion(s) today (and 19 NFP memorandum decision(s))

For publication opinions today (2):

In Kaitlyn Schneider v. Paragon Realty, LLC , a 12-page opinion, Judge Najam writes:

Kaitlyn Schneider appeals the trial court’s entry of summary judgment in favor of Paragon Realty, LLC (“Paragon”) on Schneider’s complaint alleging that, as a result of the negligence of Paragon and other defendants, Schneider sustained personal injuries. Schneider presents a single issue for our review, namely, whether there exists a genuine issue of material fact precluding summary judgment in favor of Paragon. * * *

Considering the designated evidence on summary judgment, none of Schneider’s contentions support a claim against Paragon. As Heartland’s property manager, Paragon was responsible for physical maintenance and administrative duties, such as collecting rents. While Schneider was Paragon’s invitee with respect to the physical integrity of the common areas outside of Bubbaz, there was no contractual or other relationship between the parties with respect to the allegations against Paragon set out in her complaint. Neither as a matter of law nor as a matter of fact did Paragon exercise control over, or have any responsibility for, the manner in which Heartland’s tenants conducted their businesses. The trial court properly entered summary judgment in favor of Paragon. Affirmed.

In Tresa Megenity v. David Dunn , a 16-page, 2-1 opinion, Judge Najam writes:
Tresa Megenity appeals the trial court’s entry of summary judgment in favor of David Dunn on Megenity’s complaint, in which she alleged that Dunn was negligent and reckless and proximately caused her serious bodily injury during a karate practice session. Megenity presents a single issue for our review, namely, whether there exists a genuine issue of material fact precluding summary judgment in favor of Dunn. * * *

We hold that the “general nature of the conduct reasonable and appropriate for a participant” in a karate practice drill is not “commonly understood and subject to ascertainment as a matter of law.” See Pfenning, 947 N.E.2d at 403-04. And Megenity has designated evidence to establish a genuine issue of material fact whether Dunn’s kick was a jump kick and, if so, whether such a kick was outside the range of ordinary behavior for a karate student engaged in a kicking-the-bag practice drill. Accordingly, we cannot say that Dunn did not breach his duty of care to Megenity as a matter of law, and the trial court erred when it entered summary judgment in favor of Dunn. Reversed and remanded for further proceedings.

May, J., concurs.
Riley, J., dissents with separate opinion. [that begins, at p. 13] I respectfully dissent from the majority’s decision reversing the trial court’s summary judgment and holding that a genuine issue of material fact exists as to whether Dunn’s kick “was outside the range of ordinary behavior for a karate student engaged in a kicking-the-bag practice drill.”

NFP civil decisions today (4):

In the Termination of the Parent-Child Relationship of J.B. (Minor Child), A.C. v. Indiana Department of Child Services (mem. dec.)

In the Matter of: K.D., a Child in Need of Services, S.D. (Mother) and Ke.D. (Father) v. Ind. Dept. of Child Services (mem. dec.)

In the Termination of the Parent-Child Relationship of K.J. and J.J. (Minor Children), R.J. (Mother) and Jo.J. (Father) v. Indiana Department of Child Services (mem. dec.)

In the Term. of the Parent-Child Relationship of I.C., N.K., L.L., and L.L., III (Minor Children), E.B. (Mother) v. Ind. Dept. of Child Services (mem. dec.)

NFP criminal decisions today (15):

J.D.M. v. State of Indiana (mem. dec.)

Jason Richmond v. State of Indiana (mem. dec.)

Vincent James, a/k/a, Victor James v. State of Indiana (mem. dec.)

Ryan Sizemore v. State of Indiana (mem. dec.)

Juwan Jones v. State of Indiana (mem. dec.)

Brett Conover v. State of Indiana (mem. dec.)

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

Tyrone D. Miller v. State of Indiana (mem. dec.)

Gary A. Williams v. State of Indiana (mem. dec.)

William E. Gilliland v. State of Indiana (mem. dec.)

Matthew A. Cornell v. State of Indiana (mem. dec.)

Kyree Guajardo v. State of Indiana (mem. dec.)

Tony Edelen v. State of Indiana (mem. dec.)

Mark Allen Smith v. State of Indiana (mem. dec.)

Basil C. Halkides v. State of Indiana (mem. dec.)

Posted by Marcia Oddi on May 24, 2016 11:22 AM
Posted to Ind. App.Ct. Decisions

Ind. Courts - "Proposed Factory Farm Threatens Popular Youth Camp" [Updated]

House of Prayer Ministries Inc., according to a news release issued yesterday:

has filed suit in Rush County asking the court to reverse the Rush County Board of Zoning Appeals’ recent decision to grant a Special Exception to Milco Dairy Farm, LLC., allowing construction of a concentrated animal feeding operation (“CAFO”) within a half mile and upwind from Harvest Christian Camp. The proposed factory farm will have 1,400 dairy cows along with three outdoor waste lagoons for collecting about 20 million gallons of feces, urine, food waste, contaminated storm water, and wastewater. The collected waste will be emptied from the lagoons and spread on properties in Rush and Henry Counties that surround the factory farm and Harvest Christian Camp.

Harvest Christian Camp, legally represented by the Hoosier Environmental Council (HEC), filed the lawsuit on Monday contending that the waste and pollution from the factory farm will jeopardize the health, safety and well-being of the many children entrusted to the Camp’s care. Children ages 4 to 17 attend the Camp’s daily and overnight summer camp programs as well as special programs and community events throughout the year. Due to the number of young children, camp staff, teachers, and volunteers present at the Camp facility, the lawsuit maintains that the Rush County BZA should have afforded the youth camp the same one-mile setback protection from a CAFO that the county ordinance requires for a school. The suit also claims that the Special Exception violates Harvest Christian Camp’s constitutionally protected rights to free exercise of religion, equal protection and due process.

“Over the years, thousands of parents have sent their children to our church camp because it offers a safe and healthy rural setting for children to be educated, to grow in faith and enrich their relationship with God, and to be enhanced by the outdoors,” said the camp’s pastor, David Todd. “This factory farm will destroy the outdoor experiences for children that are central to Harvest Christian Camp’s 30-year mission and threatens our very existence.”

“This confined livestock facility will produce about 8 times as much feces and urine as the entire population of people in nearby Rushville,” said Dr. Indra Frank, a physician and public health expert with HEC. “The difference is that Rushville isn’t allowed to store human waste in massive open-air lagoons. The air pollutants released from manure -- including ammonia, hydrogen sulfide, endotoxin and volatile organic compounds -- can seriously impact the health of people downwind. Harvest Camp is just a half mile downwind, and I am most concerned for children at the camp who have asthma because most of the pollutants from CAFOs aggravate asthma. I am also concerned the CAFO could expose children to disease-causing bacteria like E.coli and Salmonella, which can run off with manure into Shankatank Creek -- a creek which runs right through Harvest Christian Camp.”

The lawsuit against the Rush County BZA, filed by HEC Senior Staff Attorney Kim Ferraro, is the second legal action HEC has taken to protect the youth camp. In December of 2015, HEC filed an administrative appeal on the Camp’s behalf, challenging the Indiana Department of Environmental Management’s issuance of a permit to Milco for construction and operation of the proposed CAFO. The administrative appeal is based on claims about the nature and extent of its troublesome environmental record in violation of Indiana’s “bad character” disclosure requirements for Confined Feeding Operations permit applicants, among other allegations.

Here is the case docket. Here is the Verified Petition for Judicial Review, filed May 19th.

This is somewhat reminiscent of the YMCA Camp Tecumseh hog farm lawsuit, about which the ILB had a number of entries in 2013-15, the most recent from Feb. 18, 2015.

[Updated 5/28/16] The AP now has this story, posted late yesterday, May 27.

Posted by Marcia Oddi on May 24, 2016 10:54 AM
Posted to Environment | Indiana Courts

Environment - "High water causing headaches on Lake Michigan"

Joseph Dits had this long story in Monday's South Bend Tribune. Some quotes:

Since it hit a record low in January 2013, Lake Michigan has risen 4 feet, the Chicago Tribune reported last week. The lake is expected to keep rising by more than 10 inches over the next six months, which would put it 1 foot shy of the record high hit set in 1986, according to data from the National Oceanic and Atmospheric Administration.

Beyond that, scientists say, it’s difficult to predict.

While this winter was relatively mild, the region is still recovering from the severity of the two prior winters, plus more rainfall than usual, said Keith Kompoltowicz, chief of watershed hydrology for the Army Corps of Engineers in Detroit.

"To simply put it,” he told the Chicago Tribune, “the problem is more water is coming into the lakes than leaving."

Lake levels never declined in the fall, as they typically do, Drew Gronewold, a NOAA hydrologist who has studied more than 100 years' worth of data on the Great Lakes' water levels, told the Chicago Tribune.

“We just came out of one of the longest low-level periods in history,” he said. “Water levels were below average for more than 16 years. During that time, people have gotten used to lower water levels and have put in infrastructures and have adapted.” * * *

The Indiana Dunes National Lakeshore closed its Central Avenue Beach, just west of Mount Baldy and Michigan City, last summer. It remains closed because of erosion from both rising waters and a harbor structure that has limited the natural flow of sand, said spokesman Bruce Rowe.

But most of the park’s other 15 miles of beach remain open, he said, “so people who are willing to walk a bit from the access points will still find plenty of space.”

The beaches are narrower because of lake levels. The U.S. Army Corps of Engineers has replenished sand in years past, but now the money is lacking to do that, he said.

“We are working with other agencies and local communities to explore ways to accomplish beach nourishment projects for the park's hardest hit beaches,” Rowe said.

Posted by Marcia Oddi on May 24, 2016 10:45 AM
Posted to Environment

Ind. Gov't. - Legislative Council meeting tomorrow, May 25

It will convene at 10 AM in Rm. 404 of the Statehouse. Here is the agenda. Item #3 is:

  • Proposed Resolution 16-01 (Interim Study Committee Topic Assignments)
You may watch it live here.

Posted by Marcia Oddi on May 24, 2016 10:35 AM
Posted to Indiana Government

Ind. Courts - 7th Circuit yesterday on whether an attorney misconduct sanction lacking a monetary component is appealable

In Mary E. McClellan v. Elaine E. Bucklo (ND Ill.), a 13-page opinion, Judge Posner writes:

The principal question presented by this appeal is whether an order by a district court imposing a sanction on a lawyer for misconduct in a case before the court can ever be appealed if the sanction lacks a monetary component.

As part of a lawsuit charging the City of Chicago and others with malicious prosecution and other torts, the plaintiffs sought by subpoena to discover documents lodged in the Cook County State’s Attorney’s Office. The lawyers rep-resenting the Office, who included Mary McClellan, the appellant, told the plaintiffs’ lawyers that the files they were looking for no longer existed. A year later, however, when Judge Grady, the presiding judge, ordered the Office to al-low the plaintiffs’ lawyers to inspect 181 boxes of documents stored in a warehouse, the lawyers quickly found the documents they’d asked for—and moved the district court to sanction McClellan and her colleagues for obstructing the plaintiffs’ discovery by insisting that the documents the plaintiffs needed no longer existed. * * *

McClellan appealed to us, but before the appeal was heard the entire $35,522.94 in money sanctions was paid by the Cook County State’s Attorney’s Office, leaving McClel-lan owing nothing. She didn’t drop her appeal, however, doubtless because if Judge Grady’s sanctions order stands it will have a number of adverse consequences for her professionally, such as requiring her—should she ever move for admission to the bar of another court—to acknowledge having been censured in a judicial order and ordered to contribute to the monetary sanctions that the judge imposed. See, e.g., U.S. District Court for the Northern District of Illinois, Petition for Admission to the General Bar (Jan. 2016). Or, should she be asked by judges, potential clients, or potential employers whether her professional conduct had ever been the subject of an investigation, she would have to answer (unless she lied, which could get her into worse trouble) that she had indeed been investigated for professional misconduct—for Judge Grady’s order triggered an investigation of her by the Attorney Registration and Disciplinary Commission of the Illinois Supreme Court, though as far as we know no disciplinary action has been taken against her by the ARDC. * * *

As a result of the Cook County State’s Attorney’s Office having paid the entire sanctions judgment, McClellan has no standing to challenge the monetary sanction. But the sanctions order contains detailed findings of professional misconduct by her, findings likely to inflict a significant reputational injury having adverse financial consequences for her. Such an injury, inflicted in a formal judicial order, can be serious enough to make the order appealable. Were the order false, it would be akin to a defamatory accusation. * * *

In sum, we deny the plaintiffs’ motion to dismiss the appeal for lack of jurisdiction, and likewise McClellan’s petition for a writ of mandamus, which seeks the same relief as her appeal, just under a different rubric; and we affirm the orders issued by the two judges. But because of the tension between, on the one hand, our analysis and the decisions on which it rests (decisions from eight circuits, as noted in the Second Circuit’s decision in Keach, cited earlier), and on the other hand our decision in the Clark case—which we hereby overrule to the extent that it deems a formal, but non-monetary, sanction not appealable—we have circulated our opinion in advance of publication to all the judges of the court in regular active service, pursuant to Seventh Circuit Rule 40(e), for a determination of whether a majority of the judges want to rehear the case en banc. None of the judges voted to hear it en banc. The judgment is AFFIRMED.

Posted by Marcia Oddi on May 24, 2016 08:28 AM
Posted to Ind. (7th Cir.) Decisions

Monday, May 23, 2016

Ind. Decisions - Court of Appeals issues 4 opinion(s) today (and 8 NFP memorandum decision(s))

For publication opinions today (4):

In Douglas Costello and Profit Search, Inc. v. Gersh Zavodnik, a 13-page opinion, Chief Judge Vaidik writes:

When Massachusetts resident Douglas Costello posted a used printer on Craigslist in 2009, he could not have predicted that he would spend much of the next seven years locked in a legal battle in Indiana. But he sold the printer—for less than $75—to Gersh Zavodnik, who has a penchant for suing after entering into online transactions. Zavodnik, claiming the printer was defective, sued Costello in small-claims court. He asked for the small-claims maximum of $6000, but Costello defended the case and prevailed, based on the fact that Zavodnik had prematurely disposed of the printer. Unfazed, Zavodnik appealed the matter to superior court, where he was allowed to conduct discovery. Zavodnik sent Costello requests for discovery pursuant to Indiana Trial Rule 36(A), asking Costello to admit, among other things, that he is liable for $30,044.07. Costello, who remained unrepresented following his victory in small-claims court, failed to respond (he later said he never received the requests). When Costello learned that his failure to respond rendered the matters admitted under Rule 36(A), he hired an attorney and moved to withdraw the admissions under subsection (B) of the rule. The trial court, believing itself constrained by our Supreme Court’s interpretation of Rule 36, denied Costello’s motion and awarded Zavodnik a judgment of $30,044.07. In light of Zavodnik’s abuse of Rule 36, we conclude that the trial court should have granted Costello’s motion. * * *

The trial court abused its discretion by partially denying Costello’s motion to withdraw admissions; it should have granted the motion in full. Because the trial court granted summary judgment in favor of Zavodnik based on the unwithdrawn admissions, we reverse the judgment and remand this matter to the trial court. Before conducting any further proceedings, the trial court shall hold a hearing for purposes of determining whether this case should be dismissed pursuant to Trial Rule 41(E), based on Zavodnik’s repeated, flagrant, and continuing failure to comply with Indiana’s rules of procedure.

In Michael Ryan v. TCI Architects/Engineers/Contractors, Inc. and BMH Enterprises, Inc., d/b/a Craft Mechanical , a 15-page, 2-1 opinion, Judge May writes:
Michael Ryan was injured while working on a construction project. Ryan worked for Romines, a subcontractor to Craft, who was a subcontractor to the general contractor, TCI. Ryan sued Craft and TCI, claiming they had a duty to provide him a safe workplace and their breach caused his injury. Ryan moved for partial summary judgment, claiming both defendants had a non-delegable contractual duty toward him. TCI moved for summary judgment on duty, breach, and proximate cause. As TCI had no duty toward Ryan, we affirm. * * *

The TCI contract is more like those in Helms and Shawnee, and it does not impose a duty of care toward the employees of TCI’s subcontractors because the contract terms do not “go beyond requiring that [TCI] merely supervise the work of its employees and subcontractors” as they did in Capitol. Rather, as noted above, TCI “recognizes the importance of” safety, and its Safety Representative is obliged to “supervise the implementation and monitoring” of safety matters. (App. at 71.) We accordingly affirm summary judgment for TCI. Affirmed.

Najam, J., concurs.
Riley, J., dissents with separate opinion. [that begins, on p. 13] I respectfully dissent from the majority’s conclusion that “the TCI contract does not impose a duty of care toward the employees of TCI’s subcontractors because the contract terms do not ‘go beyond requiring that [TCI] merely supervise the work of its employees and subcontractors[.]’” Slip op. p. 12. The majority’s decision is based on an analysis of the contractual language and its close resemblance to Helms, which, in turn, distinguishes it from Stumpf, Capitol, Perryman, and Harris.

By analogizing to Helms and distinguishing from Stumpf, the majority elevates form over substance in its interpretation of the contractual provisions regarding safety.

In Consumer Attorney Services, P.A., et al. v. State of Indiana , a 27-page opinion, Judge Barnes writes:
Consumer Attorney Services, P.A. (“CAS”), The McCann Law Group, LLP (“MLG”), and Brenda McCann (“McCann”) (collectively “the Defendants”) appeal the trial court’s denial of summary judgment against the Attorney General of Indiana (“Attorney General”). We affirm in part and reverse in part.

The issues before us are:
I. whether MLG, CAS, and McCann are exempt from liability under the Credit Services Organization Act under that Act’s exemption for attorneys;
II. whether MLG, CAS, and McCann are exempt from liability under the Mortgage Rescue Protection Fraud Act under that Act’s exemption for attorneys;
III. whether MLG, CAS, and McCann are exempt from liability under the Home Loan Practices Act; and
IV. whether MLG, CAS, and McCann are exempt from liability under the Deceptive Consumer Sales Act. * * *

MLG/CAS is entitled to summary judgment on the Attorney General’s claims against it under the CSOA, the MRPFA, and the HLPA, and as to the claim under the DCSA based upon violations of the CSOA. We reverse the denial of summary judgment with respect to those claims and direct that summary judgment be entered in MLG/CAS’s favor. MLG/CAS is not entitled to summary judgment on the independent DCSA claim for deceptive representations, and we affirm the denial of summary judgment as to MLG/CAS to that extent. McCann personally is not entitled to summary judgment on any of the Attorney General’s claims, and we affirm the denial of summary judgment as to her in its entirety. In conclusion, we presume the Indiana Supreme Court Disciplinary Commission is well aware of MLG/CAS’s and McCann’s activities in this state, given its punishment of Jackson for his association with MLG/CAS.

In James E. Saylor v. State of Indiana, a 23-page opinion, Chief Judge Vaidik writes:
James E. Saylor was convicted of molesting his stepdaughter, pled guilty to being a habitual offender, and was sentenced to 138 years. We affirmed on direct appeal. Saylor then sought post-conviction relief raising numerous issues, including that his trial counsel was ineffective for conceding his guilt to two counts of Class A felony child molesting during closing argument and that his guilty plea to the habitual-offender charge was not knowing, voluntary, and intelligent because he did not personally waive his right to a jury trial.

As for Saylor’s ineffective-assistance claim, Saylor’s defense at trial was that he did not commit the crimes, and defense counsel consistently argued this during closing argument. Nevertheless, in making a point about the State’s medical evidence, defense counsel inadvertently said that Saylor “was not the only person that was having sex with” the victim. Given Saylor’s consistent defense and the fact that the State did not capitalize on this statement during its rebuttal argument, we find that defense counsel’s inadvertent statement, although a mistake, was not a judicial admission to two counts of Class A felony child molesting. And in light of the overwhelming evidence of Saylor’s guilt, we find that there is not a reasonable probability that, but for defense counsel’s mistake, the result of the proceeding would have been different.

As for Saylor’s argument that he did not personally waive his right to a jury trial on the habitual-offender charge, the Indiana Supreme Court recently reaffirmed the personal-waiver requirement when a defendant proceeds to a bench trial in Horton v. State, No. 79S02-1510-CR-628 (Ind. Apr. 21, 2016). Although this case involves a guilty plea—and not a bench trial like in Horton—and there is a different statute that governs guilty pleas, we find that the same rationale applies when a defendant waives his right to a jury trial when pleading guilty. Accordingly, because Saylor did not personally waive his right to a jury trial— rather, his attorney did—when he pled guilty to being a habitual offender, we vacate his habitual-offender adjudication and remand for a new trial on that charge. We affirm the post-conviction court on all other issues that Saylor raises.

NFP civil decisions today (3):

N.H. v. Indiana Department of Child Services (mem. dec.)

Boubacar Mbengue v. Karen M. Novak (mem. dec.)

In the Term. of the Parent-Child Relationship of: J.P. and C.P., Minor Children, and C.T., Mother v. Ind. Dept. of Child Services (mem. dec.)

NFP criminal decisions today (5):

Marvon Cole v. State of Indiana (mem. dec.)

Craylon D. Bell v. State of Indiana (mem. dec.)

Larry Fulbright v. State of Indiana (mem. dec.)

William L. Howard v. State of Indiana (mem. dec.)

Philip H. Chamberlain v. State of Indiana (mem. dec.)

Posted by Marcia Oddi on May 23, 2016 11:40 AM
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Transfer list for week ending May 20, 2016

Here is the Clerk's transfer list for the week ending Friday, May 20, 2016. It is one page (and 8 cases) long.

No transfers were granted last week.

Posted by Marcia Oddi on May 23, 2016 10:34 AM
Posted to Indiana Transfer Lists

Ind. Courts - Is it time for the 7th Circuit to move to videocasts of its oral arguments, kindof like Indiana has been doing for years?

As reported in this May 20th story by Kristine Guerra in the Indianapolis Star, sub-headed "Jared Fogle, the former Subway pitchman, is asking a federal appeals court to shorten his nearly 16-year prison sentence":

[Fogle's attorney, Ron] Elberger and Assistant U.S. Attorney Steve DeBrota presented opposing arguments Friday in the 7th U.S. Circuit Court of Appeals in Chicago. The hearing, which lasted less than 30 minutes with almost no questions from the appellate judges, came about six months after Pratt sentenced Fogle in November. * * *

The appellate judges will issue a ruling on Fogle's request at a later date

The long story never identifies the judges on the 7th Circuit panel.

ILB: A reader who was listening to the oral argument sent me a note Friday:

Listening now. Fogle's lawyer went 7 minutes and sat down. Not a single question. Judge then welcomes the government lawyer to the bench using the wrong name (using the guy's name who just sat down).
Yes, you can listen to the 7th Circuit oral arguments, live and archived, via the Court's official website. It is pretty bare bones. Here is the link to the oral argument May 20th in USA v. Jared S. Fogle, click the link and the argument begins instantly, on a black page. No indication of who is on the panel, or who are the lawyers. And of course, no video.

It is possible to find out this information by using PACER, as I did in the instance:

  • Case heard and taken under advisement by panel: Joel M. Flaum, Circuit Judge; Daniel A. Manion, Circuit Judge and Jorge L. Alonso, District Court Judge.
  • Case argued by Ronald Edward Elberger for Appellant Jared S. Fogle and Steven D. DeBrota for Appellee USA.
But that still doesn't help to tell who is saying what, unless you already are familiar with the voices of the various speakers.

When the 7th Circuit first began making its oral arguments available via MP3s, it was ahead of its time, insofar as the federal circuits were concerned. But now, maybe it is time for the 7th Circuit to move into the 21st Century.

Posted by Marcia Oddi on May 23, 2016 10:03 AM
Posted to Ind. (7th Cir.) Decisions

Ind. Courts - "IU goes to court to oppose new fetal tissue law"

Rod Spaw reported May 21 in the $$ Bloomington Herald-Times - some quotes:

Indiana University fears it could lose hundreds of millions of dollars in grant funding and suffer "catastrophic" setbacks to important medical research from a state law that places new restrictions on abortion and prohibits the use or transfer of fetal tissue, effective July 1.

IU has filed a lawsuit in U.S. District Court for the Southern District of Indiana challenging provisions of House Enrolled Act 1337, which the university argues could potentially subject its researchers to criminal prosecution simply by complying with conditions of research grants. The law also potentially delays research that could lead to "breakthroughs in treatments and cures" for people with a variety of neurological disorders, including Alzheimer's disease and autism spectrum disorders, according to documents filed with the court.

The university filed a motion last Monday with the district court to intervene, or join, a lawsuit brought in April by Planned Parenthood of Indiana and Kentucky Inc. and the American Civil Liberties Union of Indiana that challenges the constitutionality of the new law. Among other provisions, the bill passed this year by the Indiana General Assembly bans abortions sought solely because of genetic abnormalities and mandates than an aborted fetus be buried or cremated.

Then, on Friday, IU's lawyers filed a motion asking the court to bar the state from enforcing the new law until a court rules on the merits of its claims, which concern provisions not addressed in the Planned Parenthood lawsuit. * * *

The problematic language, according to IU's lawsuit, is a section that makes it a level 5 felony — punishable by one to six years in prison and a fine up to $10,000 — to internationally acquire, receive, sell or transfer fetal tissue, which that section further defines as the "tissue, organs or any other part of an aborted fetus."

IU does not conduct research using whole fetuses at any stage of viability, but it does acquire fetal tissue to create cell cultures used in research on Alzheimer's disease and other neurological disorders. According to court documents, the tissue has been obtained for several years from a laboratory at the University of Washington, which acquires it both from elective abortions and miscarriages. * * *

The university's request to intervene in the lawsuit was opposed Friday by motion filed by the office of Indiana Attorney General Greg Zoeller on behalf of defendants in the Planned Parenthood lawsuit. Among its objections was the issues raised by IU were different than those in the original lawsuit and would be better handled in a separate lawsuit. As it stands, Planned Parenthood's motion for a preliminary injunction is scheduled for a hearing before the court on June 14.

The Indianapolis Star reported May 21st, in a story by Michael Anthony Adams - some quotes:
In their motion, IU's attorneys argue that the new abortion law "criminalizes millions of dollars of ongoing, federally funded IU research regarding Alzheimer’s disease."

But Indiana's attorney general's office said the state does not have a right to meddle in the suit, saying the school's argument and the lawsuit are "distinct legal issues" that shouldn't be heard in the same case. It asks the court to deny IU's request.

Bryan Corbin, a spokesman for Indiana's attorney general, said the school "can and should raise their legal claims by filing a separate lawsuit rather than joining an existing one."

“These two separate disputes do not sufficiently overlap to justify litigating them together; IU is not making the same legal argument as Planned Parenthood or even challenging the same statute as Planned Parenthood,” Indiana Attorney General Greg Zoeller said in a statement Friday, after the state filed its objection. * * *

IU claims in its motion, filed Monday, that the law’s criminalization of acquiring, receiving, selling or transferring fetal tissue is unconstitutionally vague. IU's motion also cites the First Amendment, saying that the law would infringe on university scientists' right to academic freedom.

Dr. Debomoy Lahiri, a member of IU's faculty who is party to the school's motion, conducts research on the biochemical differences between autism and Alzheimer’s disease, and uses fetal tissue in his research. The new law, set to go into effect July 1, would block IU scientists, such as Lahiri, from conducting ongoing research and prevent them from acquiring the materials they need to continue that research, the school's motion states.

IU seeks to add as parties to the lawsuit the school’s trustees, its vice president of research and two IU researchers. That includesLahiri, a professor of psychiatry and a primary investigator for IU’s Stark Neurosciences Research Institute.

The motion states that when researchers join or leave IU, “they transfer their laboratory materials with them.”

“Therefore, even were Dr. Lahiri to stop doing his research in the state of Indiana as a result of the Enrolled Act, he runs the risk that the mere act of transferring his research to another institution would constitute a felony,” IU’s motion states.

"(The law) jeopardizes the personal liberty of IU research scientists who are unable to conform their conduct to the fetal tissue statute’s restrictions," the motion reads. "(It) exposes IU to tremendous losses of federal (National Institutes of Health) funding, of which IU receives nearly $200 million annually ... (and) impairs IU’s standing as a pre-eminent research institution and discourages prominent researchers from choosing to conduct their research at IU."

ILB: Here is AG Zoeller's May 20 news release.

Posted by Marcia Oddi on May 23, 2016 09:49 AM
Posted to Indiana Courts

Ind. Courts - "Indiana appeals court to hear Granger woman's feticide case"

This afternoon at 2 PM, a panel of the Court of Appeals (Chief Judge Nancy H. Vaidik, Judge L. Mark Bailey and Judge Terry A. Crone), convening in the Supreme Court Chambers, will hear oral argument in the case of Purvi Patel v. State.

You may watch the oral argument live here.

The ILB has had a number of posts relating to the Purvi Patel appeal of her feticide and child neglect conviction. Here is the appellant's brief in Patel v. State, filed Oct. 2, 2015, and here is the brief of the appellee, the State of Indiana, filed Dec. 9th. Access the docket here, at least 29 organizations and individuals are listed as "Friend of the Court."

The South Bend Tribune on Sunday published this AP story.

Posted by Marcia Oddi on May 23, 2016 09:33 AM
Posted to Upcoming Oral Arguments

Ind. Decisions - Upcoming oral arguments this week and next

This week's oral arguments before the Supreme Court (week of 5/23/16):

Thursday, May 26

  • 9:00 AM - A.W. v. R.W. (29S02-1603-PO-135) The Hamilton Superior Court conducted an evidentiary hearing and extended a protective order previously issued. The Court of Appeals reversed, holding that the trial court erred by admitting certain evidence at the hearing. A.W. v. R.W. (Ind. Ct. App. 2015), vacated. The Supreme Court has granted a petition to transfer the case and has assumed jurisdiction over the appeal.

    ILB: In this opinion, as issued Nov. 30, 2015 by the Court of Appeals, and now vacated, the COA reversed and remanded with instructions to vacate the protective order against AW.

Next week's oral arguments before the Supreme Court (week of 5/30/16):

Thursday, June 2

  • 9:00 AM - D.A. v. State of Indiana (48S02-1604-MI-00183) The Madison Circuit Court granted D.A.’s petition to expunge the records of his two felony convictions, but denied his petition to expunge records of a civil forfeiture arising from the same set of circumstances underlying the felony charges. A divided Court of Appeals reversed and remanded, holding that the trial court erred by not expunging records of a civil forfeiture when the factual basis for an expunged criminal conviction and civil forfeiture are the same. D.A. v. State, --- N.E.3d ---, 2015 WL 9589761 (Ind. Ct. App. Dec. 31, 2015). The Supreme Court has granted a petition to transfer the case and has assumed jurisdiction over the appeal.

    ILB: This was a Dec. 31, 2015, 2-1 COA opinion, see the ILB summary here (last summarized case) involving a matter of first impression re expungement in a civil forfeiture case. See the docket here.

  • 9:45 AM - State Farm Mutual Automobile Insurance Co. v. Carol Jakubowicz (45S05-1605-CT-253) When Jakubowicz filed a claim for underinsured motorist benefits, State Farm moved for summary judgment, arguing that its policy barred the claim as untimely because it was not filed within three years after the accident, but the Lake Circuit Court denied that motion. The Court of Appeals reversed, holding that the policy unambiguously bars the claim as untimely and so State Farm is entitled to summary judgment. State Farm Mut. Auto. Ins. Co. v. Jakubowicz, 45 N.E.3d 500 (Ind. Ct. App. 2015), vacated. The Supreme Court has granted a petition to transfer the case and has assumed jurisdiction over the appeal.

    ILB: This was an Oct. 29, 2015 COA opinion reversing the trial court:

    Even if we were to construe Jakubowicz’ notification to State Farm on December 10, 2009 that a claim was “likely” to be instituted, Jakubowicz would still not be in compliance with the provisions of the policy as these require both the notification of the claim and the lawsuit to be filed within the three-year contractual limitation period.

Webcasts of Supreme Court oral arguments are available here.


This week's oral arguments before the Court of Appeals (week of 5/23/16):

Monday, May 23
  • 1:00 PM - Arion v. State (08A02-1508-CR-01278) On 9/6/13, the Carroll Circuit Court issued a warrant instructing the Sheriff of Carroll County to arrest Ricky Arion on charges of burglary, sexual battery, and criminal confinement. Arion was incarcerated in Miami County on unrelated charges at the time. On 9/10/13, a law enforcement agent of the DOC served the warrant on Arion and gave him a copy. Arion filed a motion for speedy trial under Criminal Rule 4(B) in the Carroll Circuit Court on 9/13/13. On 12/16/13, Arion filed a motion to dismiss the charges against him, as he had not been brought to trial within 70 days. The trial court denied the motion, holding that because the Sheriff had not returned the warrant to the court as served, Arion had not been arrested under the new charges, and Criminal Rule 4 did not apply. Arion filed a motion to reconsider, including a copy of the warrant that was served on him, but the trial court denied this motion as well. The trial court held an initial hearing in the case on 5/22/15, setting it for trial on 10/5/15. Arion objected as this date fell more than 2 years after he had been charged. Arion filed a motion for discharge on 7/10/15. The trial court acknowledged that Arion had been arrested on 9/10/13, when he was read the warrant, and that he had made this known to the trial court by attaching a copy of the warrant to his motion to reconsider. However, the trial court denied Arion's motion, holding that, because it had not seen the copy of the warrant attached to Arion's motion, it had continued to operate under the belief that the warrant had not been served, and was not made actually aware that Arion had been arrested until 3/26/15. As the trial court held this date to be the date that Arion had been arrested for Criminal Rule 4 purposes, it found no Rule 4 violation. The trial court also found that Arion's Sixth Amendment right to a speedy trial had not been violated. The trial court certified this judgment for interlocutory appeal and this Court accepted jurisdiction. The Scheduled Panel Members are: Judges Baker, May and Brown. [Where: Court of Appeals Courtroom (WEBCAST)]

  • 2:00 PM - Purvi Patel v. State (71A04-1504-CR-166) Purvi Patel purchased misoprostol and mifepristone from a Hong Kong pharmacy online and used those drugs to terminate her pregnancy at home. She delivered a live baby of approximately 25 weeks' gestation who died shortly after birth. She did not seek medical care until after the baby died. Patel was charged with and convicted of neglect of a dependent as a Class A felony and feticide, a Class B felony. On appeal, Patel argues that her neglect of a dependent conviction should be reversed because it is not supported by sufficient evidence. She also argues that her feticide conviction should be reversed because the feticide statute is either inapplicable or unconstitutional in this situation. The Scheduled Panel Members are: Chief Judge Vaidik, Judges Bailey and Crone. [Where: Supreme Court Courtroom (WEBCAST)]
ILB Note: The ILB has had a number of posts relating to the Purvi Patel appeal of her feticide and child neglect conviction. Here is the appellant's brief in Patel v. State, filed Oct. 2, 2015, and here is the brief of the appellee, the State of Indiana, filed Dec. 9th. Access the docket here, at least 29 organizations and individuals are listed as "Friend of the Court."

Next week's oral arguments before the Court of Appeals (week of 5/30/16):

Thursday, June 2

  • 2:00 PM - Faulkner & Associates v. The Restoration Church (41A01-1506-PL-00706) In October of 2009, Randy Faulkner & Associates, Inc. (“RFA”) agreed to lease real property in Greenwood to The Restoration Church, Inc. (“the Church”). At the time, Randall W. Faulkner (“Faulkner”), the owner of RFA, attended the Church, and prior to the execution of the lease agreement several members of the Church and the Church itself invested about $450,000 to restore the property. Although RFA believed the monthly fair market rental value of the restored property to be about $14,000, RFA agreed to rent the property to the Church for one year at $100 per month. The lease agreement provided the Church with six one-year options to renew, but it is not disputed that the Church did not give the notice required to exercise its option to renew the lease. In late July of 2012, RFA gave the Church written notice to vacate the premises within thirty days. After vacating the premises, the Church filed suit against RFA and Faulkner for breach of contract. RFA and Faulkner countersued for breach of contract, tortious interference with a business relationship, and various theories of defamation. After a bench trial, the court found that RFA had breached its contract with the Church, relying on waiver and estoppel. The court then ordered RFA to pay the Church about $322,000 in damages, which the court calculated in part by using the Church’s actual monthly rent payments, a pro-rated amount of the Church’s and its members’ initial restoration costs, and the Church’s remaining option terms. The court also found for Faulkner on his intentional tort claims but concluded that Faulkner had not met his burden of proof to show damages on those claims. This appeal and cross-appeal ensued. The Scheduled Panel Members are: Judges Najam, Riley and Robb. [Where: French Lick Resort, French Lick, IN]
Friday, June 3
  • 10:00 AM - Schuchman/Samberg Investments Inc. v. Hoosier Penn Oil Co., et al (49A02-1508-MI-1051) In this certified interlocutory appeal, Schuchman/Samberg Investments (SSI) appeals the trial court's order granting summary judgment in favor of defendants Hoosier Penn Oil Company, Union Oil Company of California, and BP Corporation North America on SSI's claims under Indiana's Environmental Legal Actions Statute (ELAS) and Petroleum Releases Statute (PRS). With respect to its ELAS claim, SSI argues that the trial court erred in applying the six-year statute of limitations applicable to property damage claims rather than the 10-year statute of limitations applicable to contribution claims. SSI argues further that the trial court erred in determining the date on which its ELAS claim accrued. SSI also argues that the trial court erred in concluding that the PRS does not provide for a private cause of action under the circumstances of this case. The Scheduled Panel Members are: Judges Robb, Barnes and Altice. [Where: Court of Appeals Courtroom (WEBCAST)]

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

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


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

Posted by Marcia Oddi on May 23, 2016 08:52 AM
Posted to Upcoming Oral Arguments

Friday, May 20, 2016

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

For background see this Oct. 13, 2015 ILB post, "Marion County sign ordinance challenged in federal court." In their Oct. 2015 complaint, GEFT OUTDOOR, LLC argued that "the sign ordinance, the digital ban, and the highway digital ban violate the free speech clauses of the 1st amendment of the US Const., and Art. I, Sec. 9 of the Indiana Constitution, as well as the equal protection clause of the 14th amendment and Art. I, sec. 23 of the Indiana constitution." The argument relied on last term's SCOTUS opinion, Reed v. Town of Gilbert. Since the suit's filing, Indianapolis has adopted a new sign ordinance.

Today Judge Sara Evans Barker has issued a 35-page opinion, GEFT Outdoor LLC v. Consolidated City of Indianapolis et al. Some quotes:

This matter is before the Court for decision on the First Amendment issues arising from Plaintiff’s challenge to the constitutionality of Chapter 734 of the Indianapolis City-County Code – both the original version in effect at the time this lawsuit was filed (“the Sign Ordinance”) and the recently amended version of that ordinance (“the Amended Sign Ordinance”). Plaintiff GEFT Outdoor LLC (“GEFT”) seeks to enjoin Defendants Consolidated City of Indianapolis and County of Marion, Indiana; Department of Metropolitan Development; and Department of Code Enforcement (collectively, “the City”) from enforcing either version of the sign ordinance on the grounds that both favor commercial speech over noncommercial speech and contain content-based restrictions on speech in violation of the First Amendment as applicable to the states under the Fourteenth Amendment, both facially and as applied to GEFT.

GEFT filed its Complaint in this action on October 5, 2015, alleging that the Sign Ordinance was violative of the free speech clause of the First Amendment because it contained content-based speech regulations similar to those found unconstitutional by the United States Supreme Court in Reed v. Town of Gilbert, Arizona, 135 S. Ct. 2218 (2015). Plaintiff’s Complaint also alleges that the Sign Ordinance violated the equal protection clause of the Fourteenth Amendment, Indiana’s ascertainable standards rule, and various provisions of the Indiana Constitution. * * *

[II. The Constitutionality of the Sign Ordinance] Because there was no provision in the Sign Ordinance which provided that noncommercial speech was permitted wherever commercial speech was permitted nor was it clear that the on-premises and off-premises definitions applied only to commercial speech, striking the noncommercial exemption does not resolve all of the ordinance’s constitutional infirmities. Without the noncommercial exemption, the Sign Ordinance is completely silent as to noncommercial opinion speech. Such speech rarely involves a locational component; thus, presumably it would come within the off-premises definition, which means that, while on-premises sign owners previously could display such speech based on the noncommercial exemption as a freestanding sign that met certain size dimensions, when that provision is no longer applicable, on-premises sign owners no longer have a clear means by which they can display noncommercial opinion speech. Distinguishing between different categories of noncommercial speech as well as favoring commercial speech over noncommercial speech violates First Amendment guarantees, and simply striking the noncommercial exemption from the Sign Ordinance will not rescue the remaining portions of the ordinance.

The nonseverable Sign Ordinance violates the First Amendment, as we have said. The City thus is liable to GEFT for whatever monetary damages GEFT is able to prove that resulted from the impact the ordinance had on it. That is the extent of GEFT’s entitlements under the challenged ordinance. * * *

[III. Constitutionality of the Amended Sign Ordinance] [W]e find that the City’s on/off-premises regulations are constitutionally permissible given that they directly advance the City’s interests in aesthetics and traffic safety.

We reach the same conclusion with respect to the Amended Sign Ordinance’s digital regulations. The Amended Sign Ordinance does not permit any sign to be one hundred percent digital. Instead, the ordinance restricts to no more than forty percent of an on-premises sign the utilization of digital components. It imposes additional restrictions on on-premises signs with digital components, including limiting the frequency with which the message changes and requiring that the sign go dark in the event of a malfunction. We do not construe this narrow exception to the digital ban to swallow the rule or to undermine the City’s overarching goals of traffic safety and aesthetics. Even the inclusion of an exception for on-premises signs does not defeat or overcome the regulation’s advancement of the City’s interests. * * *

[W]e hold that the City’s ban on off-premises digital signs is not broader than necessary and therefore satisfies the narrowly tailored requirement.

For these reasons, we hold that the Amended Sign Ordinance passes intermediate scrutiny, and that the revised ordinance is therefore facially valid. GEFT also presents no persuasive evidence in support of its as-applied challenge to the on/off-premises regulations, including the digital ban on off-premises signs.

IV. Conclusion

For all of the reasons explicated above, the Court declares that: (1) GEFT’s claims related to the original Sign Ordinance seeking declaratory and injunctive relief are denied as moot based on the passage of the Amended Sign Ordinance, but its damages claims survive; (2) the original Sign Ordinance in its entirety violates the First Amendment making the City liable to GEFT for any resultant monetary damages it can establish; and (3) the Amended Sign Ordinance is constitutional under the First Amendment, thereby binding GEFT to its requirements. GEFT’s First Amendment money damages claims and the remaining substantive claims alleged in its Second Amended Complaint will proceed accordingly.

Posted by Marcia Oddi on May 20, 2016 06:16 PM
Posted to Ind Fed D.Ct. Decisions

Ind. Courts - Purvi Patel v. State oral argument at 2PM Monday

As noted at the end of this "Upcoming Oral Arguments" post from last Monday, the argument before the Indiana Court of Appeals in Purvi Patel v. State is this coming Monday, May 23rd at 2:00 PM.

You will be able to watch the oral argument via this link.

Posted by Marcia Oddi on May 20, 2016 03:12 PM
Posted to Upcoming Oral Arguments

Ind. Gov't. - "Oregon Ban on Commercial Water Bottling Could Leave Industry High and Dry"

That is the headline to a lengthy $$ story today in the Wall Street Journal, reported by Jim Carlton, that begins:

The bottled water industry, thirsty for new sources as demand grows, is coming up dry in some places as communities around the country push back against bottling plants, citing drought concerns and environmental impacts.

This week, voters in Hood River County, Ore., approved the nation’s first ban on commercial water bottling in a measure that passed overwhelmingly Tuesday. The vote could scuttle an eight-year effort by a division of Swiss giant Nestlé SA to open a bottled water plant in the county town of Cascade Locks about 40 miles east of Portland.

The ILB has been following this topic since 2007, when the Indianapolis Star reported:
Kentland doesn't have an Ice River, but it's near a natural spring that will help produce jobs in northwest Indiana.

The Indiana Economic Development Corp. announced today that Canadian water bottler Ice River Springs will build a 273,000 square-foot production and distribution center in the town’s industrial park.

That quote is found in this Oct. 22, 2007 ILB post, which concludes with the ILB observation:
No talk here of water management policies. The day may soon be past, and perhaps it should be already, when a community will so eagerly, and with the help of the state administration, sell off the rights to draw down its aquifer for the promise of 100 jobs.
Also of interest are these related ILB posts:
Environment - California water bottling company to build Plainfield plant

Bruce C. Smith reports today in the Indianapolis Star:The largest private label bottler of water in the country will build a plant in Plainfield. Niagara Bottling Co., a family-owned operation based in southern California, plans to invest at least $35...
Posted in The Indiana Law Blog on September 16, 2009 09:05 AM

Environment - "The variety of threats Lake Michigan faces"

Heather Augustyn of the NWI Times reports:VALPARAISO | Members of the League of Women Voters listened to a guest speaker on a freezing Saturday morning talk about the variety of threats Lake Michigan faces. Jeanette Neagu, co-president of the Lake...
Posted in The Indiana Law Blog on January 20, 2008 01:21 PM

Environment - More on "States eye lakes water management"

Following up on yesterday's ILB entry, Tim Jones of the Chicago Tribune has a lengthy story headed: "Great Lakes key front in water wars: Western, Southern states covet Midwest resource." It begins:While the West burns and the Southeast bakes, there...
Posted in The Indiana Law Blog on October 28, 2007 05:35 PM

Also worth reading is this story this week (May 18) by Don Behm of the Milwaukee Journal Sentinel, headed "Great Lakes group backs Waukesha lake water diversion." Some quotes:
The City of Waukesha would receive Lake Michigan water, and turn off its deep wells drawing radium-contaminated water from a sandstone aquifer, under a recommendation approved Wednesday by representatives of Great Lakes states and provinces.

The group on a 9-0 vote affirmed that the city's application for a Lake Michigan water supply would comply with terms of a Great Lakes protection compact if numerous conditions the representatives recommended were imposed on the plan. * * *

Governors of the eight states, or their designated representatives, will meet in Chicago in late June to consider the regional group's conditional approval and vote on the city's request.

Posted by Marcia Oddi on May 20, 2016 02:17 PM
Posted to Environment | Indiana Government

Ind. Courts - "Ex-bankruptcy attorney avoids jail time on 8 theft charges"

Updating this brief Aug. 9, 2013 ILB post, headed "Former Richmond attorney arrested on 26 counts of theft," Mike Emery of the Richmond Pal-Item reports today in a long story that begins:

A former Richmond bankruptcy attorney avoided jail time Thursday on eight felony theft charges for taking fees and prepaid Visa cards from clients but never filing their bankruptcy petitions.

Charles R. Hyde Jr., 61, received six years of probation from Special Judge Marianne Vorhees of Delaware County Circuit Court. Vorhees divided the eight Class D felony convictions into three groups — two that included three counts each and one that included two counts. She sentenced Hyde to two years of incarceration with all time suspended to probation for each of the eight counts.

Sentences on the counts within each group will be served concurrently, but the sentences for the three groups will be served consecutively. That created the six years of probation agreed upon in a plea agreement reached by Hyde and the Wayne County Prosecutor's Office.

"I don't think it's appropriate for incarceration," said Vorhees, adding Hyde can better spend the time earning money for the $54,669 in restitution he's agreed to pay.

More from the long story:
Wayne County Prosecutor Mike Shipman had seven victims and five former employees of Hyde's legal practice testify during Thursday's hearing. After about an hour and a half, defense attorney James Williams agreed that other victims would testify in a similar fashion, removing the need for all of the victims among the 50 or so people in attendance to testify. [ILB emphasis]

Victims detailed how they paid Hyde to help them file for bankruptcy, and he required all of their payment up front before he would begin the process. Those who testified said he would reassure them their cases were progressing, even as he became harder to reach in his office or by phone. After their cases dragged for months or Hyde had closed his office without warning in 2012, they found other attorneys who filed their bankruptcy petitions promptly.

They also explained how creditors called them asking for a bankruptcy case number that they never had received. They talked about the stress they endured and how they experienced health and financial problems.

Employees spoke about the deterioration of the office environment, with up to 100 bankruptcy cases waiting for Hyde's approval and signature before they could be submitted and about how delays required new information be gathered from clients and caused clients to have to retake credit counseling classes for additional fees.

Posted by Marcia Oddi on May 20, 2016 01:57 PM
Posted to Ind. Trial Ct. Decisions

Ind. Decisions - Court of Appeals issues 3 opinion(s) today (and 12 NFP memorandum decision(s))

For publication opinions today (3):

In Nikki Jones, as Personal Representative of the Estate of Phillip Matthew Jones v. Hancock County Board of Commissioners, a 20-page opinion, Judge Brown writes:

Nikki Jones as Personal Representative of the Estate of Phillip Matthew Jones (the “Estate”) appeals from the order of the trial court entering summary judgment in favor of the Hancock County Board of Commissioners (the “Board” or the “County”). The Estate raises one issue which we revise and restate as whether the court erred in entering summary judgment in favor of the Board. We affirm in part, reverse in part, and remand. * * *

The Estate contends that the Board was not entitled to legislative immunity because the alleged negligence did not arise from a failure to pass or enforce an ordinance, but rather arose from a failure to monitor and maintain the county’s roadways in a reasonably safe condition, a duty that is not subject to legislative decision-making. The Estate’s argument is that the Board failed to exercise reasonable care in installing proper traffic control devices, that such devices include non-regulatory signs such as warning signs, and that monitoring traffic accident frequency, conducting engineering studies of dangerous intersections, and erecting or modifying non-regulatory signs do not require ordinances or other legislative action in order to be commenced. It also argues that the entry of summary judgment is an incentive for counties to neglect their duty to follow the Manual, and that the Board chose to remain ignorant of the peril posed by the intersection.

The Board maintains that, irrespective of how the Estate attempts to characterize its claim, tort liability is predicated upon whether or not the intersection was reasonably safe due to the two-way and not four-way stop, and that the Estate’s claim is barred under Ind. Code § 34-13-3-3(8). It contends that any failure to monitor the number of traffic accidents at the intersection relates to whether the intersection should have been converted to a four-way stop prior to the accident and is not an independent basis for tort liability. The Board further maintains that stop signs and other regulatory signs may be installed by the adoption of an ordinance, and that whether it complied with the Manual is irrelevant where legislative immunity defeats the Estate’s claim as a threshold determination. * * *

Based upon the designated evidence, we conclude that the Board is immune under Ind. Code § 34-13-3-3(8) from liability for any loss resulting from the adoption of Hancock County Ordinance 1992-12F or any failure to adopt an ordinance, in response to the frequency of traffic accidents discovered by monitoring or for any other reason, or take other legislative action related to the intersection of CR 400W or CR 200N. * * *

Having found that the Board is immune from liability for any loss resulting from the adoption of Hancock County Ordinance 1992-12F or for its failure to adopt any traffic control ordinance with respect to the intersection of CR 400W or CR 200N, we turn to whether the County was entitled to summary judgment with respect to its alleged failure to monitor the frequency of accidents at the intersection and to erect appropriate warning signs. * * *

Based upon the summary judgment materials and Lowe, we reverse the entry of summary judgment as to the claim the County failed to erect warning signs, affirm the entry of judgment in all other respects, and remand for further proceedings.

In David L. Kimbrough v. Ramona F. Anderson , a 27-page opinion, Judge Mathias writes:
David Kimbrough (“Kimbrough”) filed a complaint in Monroe Circuit Court against Ramona Anderson (“Anderson”), alleging that Anderson was liable for damages when Kimbrough’s basement flooded on numerous occasions between 2008 and 2011 after Anderson excessively watered her yard. A jury found in favor of Anderson, and Kimbrough now appeals, raising eight issues, which we consolidate and restate as:
1. Whether the trial court abused its discretion in precluding testimony from Anderson’s insurance company regarding instructions given to Kimbrough;
2. Whether the trial court abused its discretion in admitting Kimbrough’s prior home insurance claim file into evidence;
3. Whether the trial court abused its discretion in admitting a hydrogeologist’s expert report into evidence;
4. Whether the trial court abused its discretion in denying Kimbrough’s motion for judgment on the evidence on two of Anderson’s affirmative defenses; and
5. Whether the trial court abused its discretion in instructing the jury on final instruction numbers 8 and 9, concerning Anderson’s affirmative defenses. We affirm. * * *

Conclusion. For all of these reasons, we conclude that the trial court did not abuse its discretion in precluding testimony from Anderson’s insurance company regarding instructions given to Kimbrough, in admitting Kimbrough’s prior home insurance claim file, and in admitting one of Anderson’s expert reports into evidence. Further, the trial court did not abuse its discretion in denying Kimbrough’s motion for judgment on the evidence on two of Anderson’s affirmative defenses or in instructing the jury with final instructions number 8 and number 9.

In Derek Scisney v. State of Indiana , an 8-page opinion, Judge Mathias writes:
Derek Scisney (“Scisney”) was convicted in Marion Superior Court of unlawful possession of a firearm by a serious violent felon (“SVF”) and resisting law enforcement. Scisney appeals his conviction for unlawful possession of a firearm by an SVF and argues that the trial court abused its discretion when it admitted the firearm into evidence. Specifically, he argues that his encounter with the law enforcement officer was not consensual and the officer lacked reasonable suspicion to conduct a Terry stop and the accompanying pat down search. We affirm.
NFP civil decisions today (8):

Jason L. McDonough, as Personal Representative of the Estate of Donna L. Allen, Deceased v. Kentucky Avenue Land Company (mem. dec.)

Ana Milomira Stanisic v. Steven Massa (mem. dec.)

In the Matter of the Term. of the Parent-Child Relationship of C.B., Mother, B.G., Father, and N.W., S.G. and R.B., Minor Children, C.B. and B.G. v. Ind. Dept. of Child Services (mem. dec.)

Carla S. Love v. Mauricio Bellido (mem. dec.)

Victoria H. Rybicki v. U.S. Bank National Assoc., Successor Trustee to BoA, N.A., as Successor to LaSalle Bank, N.A., et al. (mem. dec.)

James H. Calkins and Walnut Hills Development, LLC v. James Leto and Colony Bay Apartments, LLC (mem. dec.)

Olabisi Nard v. Mark Sevier (mem. dec.)

Kirsten L. Nolan v. Matthew A. Huff (mem. dec.)

NFP criminal decisions today (4):

Kurt Hinkle v. State of Indiana (mem. dec.)

Jonathan Wallace v. State of Indiana (mem. dec.)

Bruce McIntyre v. State of Indiana (mem. dec.)

Larisha Lee v. State of Indiana (mem. dec.)

Posted by Marcia Oddi on May 20, 2016 11:59 AM
Posted to Ind. App.Ct. Decisions

Ind. Decisions - More on: Appellants file for rehearing in House email/public records case

Updating yesterday's ILB post, here are several stories on the filing.

From the AP, here via the Chicago Tribune: "Court asked to reconsider ruling that shields Indiana lawmakers from records request." The long story ends:

Indiana's Public Records Act declares "it is the public policy of the state that all persons are entitled to full and complete information regarding the affairs of government and the official acts of those who represent them as public officials and employees."

In practice, however, lawmakers have long acted in a manner that goes against the stated intent off the law. Their actions were taken to court last year when consumer advocates sued the House Republican Caucus to obtain emails that House energy committee Chairman Eric Koch may have exchanged with Duke Energy and Indianapolis Power and Light.

The Bedford Republican, who has reported an economic interest in dozens of oil, gas and energy companies, sponsored an unsuccessful bill last year that would have cut how much utilities must pay for excess electricity generated by home solar power systems. Opponents of the bill said would eliminate the incentive to buy them.

First, a Marion County judge ruled that he could not interfere in the operation of the legislative branch. That decision was upheld when state Supreme Court justices issued their 4-1 ruling in April. The court found lawmakers were bound by the state's public records law, but they also ruled that the state constitution's separation of powers between the legislative and judicial branches of government prevented them from ordering the release of Koch's emails.

Advocates argue in a court filing that the court's decision was vague, overly broad and could allow the Legislature to "hide from the public the very existence of correspondence with lobbyists."

But their request faces long odds. Last year, 13 similar requests were made with all but two denied, said Indiana University law professor Joel Schumm. He added that usually when the court agrees to a rehearing, "it's on a pretty narrow legal issue."

"It's extremely rare that a rehearing will be granted to change the outcome of the case," Schumm said.

From the Fort Wayne Journal Gazette, some quotes from this story by Niki Kelly:
The court ruled in April that the state open records law does apply to the legislature but found it is up to the General Assembly to determine what constitutes its own work product.

Essentially the decision means the executive and legislative branch can claim certain exemptions from the public records law and no third party can review and determine if those are being applied appropriately. * * *

Gov. Mike Pence – about a week after the ruling in the House case – used the same argument in a separate lawsuit over a records request to his office.

“Unless the Court agrees to reconsider its April 19 ruling, Hoosiers’ right to be fully informed of the activities of those who serve them in state government will have been damaged beyond repair,” said William Groth, the lead attorney for the groups.

Groth is also the person who sought records in the Pence case. * * *

Another interesting facet is that attorney Geoffrey Slaughter argued the case on behalf of the General Assembly before the Indiana Supreme Court, and just last week was named by Pence as the next Indiana Supreme Court justice.

It is unclear when he will take the oath and if he is still representing the House in the case. [ILB: Slaughter's request to withdraw from the case was granted by the Supreme Court on May 18th, as noted in this ILB post yesterday.] * * *

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

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

Posted by Marcia Oddi on May 20, 2016 09:08 AM
Posted to GA and APRA | Ind. Sup.Ct. Decisions | Indiana Government

Ind. Courts - More on "Disciplinary Commision recommends discipline for former Marion Co. prosecutor Carl Brizzi"

Updating yesterday's ILB post, Rafael Sanchez of WRTV6 had an interesting report last evening, headed "Former Marion Co. prosecutor Carl Brizzi believed complaints were dismissed: Brizzi releases letters as proof." SoThe story begins:

INDIANAPOLIS -- Carl Brizzi believed accusations about a real estate deal and his involvement in handling a drug case plea deal were a thing of the past.

Brizzi released to Call 6 Investigates two letters from the State Disciplinary Commission dated March 2, 2015. Both letters say, “The Commission considered a grievance against you” on February 13. Both letters also say, “The Commission dismissed the grievance on the grounds that there is not reasonable cause to believe that you are guilty of misconduct which would warrant disciplinary conduct.”

The commission opened its review of the plea deal on October 16, and the real estate deal on October 23. Despite months of discussions and extensions in the fall of 2014 and winter of 2015, RTV6 has learned that Brizzi’s legal team at the law firm of Lewis & Wagner believed the issues were resolved when they received the letters from the Commission.

“It’s eight years old, and notwithstanding the fact that it’s the same stuff investigated by the FBI," Brizzi said.

Later in the story:
Spokesperson [for the Supreme Court] Kathyrn Dolan told RTV6, “The charges are only allegations and the attorney has a right to respond in writing. Ultimately, only the Supreme Court can determine what (if any) misconduct has occurred."

In 2015, the Indiana Supreme Court weighed in on 32 disciplinary complaints, though the Commission received 1,422 complaints about attorneys statewide.

Possible punishments range from a private reprimand to disbarment.

ILB: For those unaware of how the lawyer disciplinary process proceeds, the formal misconduct complaint of the Disciplinary Commission is only the start of the public process. Next, the Supreme Court appoints a hearing officer:
A hearing officer is appointed by the Supreme Court to hear the evidence. The Disciplinary Commission must prove its charges by a higher burden than in a civil case. The hearing officer's responsibilities are like those of a trial court judge, except that the hearing officer cannot make a final decision in the case. The hearing officer makes a report on the case to the Supreme Court, which makes a final decision.
Or the parties may propose a settlement agreement to the Supreme Court:
If the Disciplinary Commission and the lawyer can agree to the facts of the case and an appropriate disciplinary sanction, the agreement is submitted to the Supreme Court for approval. If the Court accepts the agreement, the agreed sanction is imposed by the Supreme Court and the case is over. If not, there is a hearing.
Source: Indiana Courts: Discipline

ILB: How long?

Likely, many months or even years may pass until the Brizzi process concludes. For example, a disciplinary complaint was filed in March of 2015 against Floyd County Prosecutor Keith Henderson. The hearings concluded in late October, 2015. So far as the ILB can determine, no report has yet been issued by the hearing officer in the case. Here is the docket in the case.

Posted by Marcia Oddi on May 20, 2016 08:35 AM
Posted to Indiana Courts

Thursday, May 19, 2016

Ind. Decisions - Tax Court decides one today

In Miller Pipeline Corporation v. Indiana Department of State Revenue, a 24-page opinion, Sr. Judge Fisher writes:

Miller Pipeline Corporation has appealed from the Indiana Department of State Revenue’s denial of its claim for refund of sales/use taxes remitted for the 2006 and 2007 tax years (the years at issue). The issue before the Court is whether the Department erred in denying that refund claim. * * *

Miller Pipeline has rebutted the presumption of validity afforded to the Department’s Proposed Assessments as they relate to the treatment of the transactions discussed in Issues I, II, III, IV, VII, and XI of this opinion. Accordingly, the Department’s audit findings with respect to these transactions are REVERSED.

Miller Pipeline has not, however, rebutted the presumption of validity afforded to the Department’s Proposed Assessments as they relate to treatment of the transactions discussed in Issues V, VI, VIII, IX, and X of this opinion. Accordingly, the Department’s audit findings with respect to these transactions are AFFIRMED.

The Court REMANDS this matter to the Department with instructions to make the adjustments to its statistical sample consistent with this opinion. Once the Department has made those adjustments, it shall reconcile Miller Pipeline’s overall tax liability/refund opportunity in accordance with the recomputed statistical sample, reducing that amount by the credits already received and discussed in Issue VII.

Posted by Marcia Oddi on May 19, 2016 04:46 PM
Posted to Ind. Tax Ct. Decisions

Ind. Decisions - Supreme Court posts order imposing reciprocal discipline

In In the Matter of: Jeannette M. Conrad, the Court writes:

On September 21, 2015, the Supreme Court of Illinois found Respondent’s conduct violated that jurisdiction’s rules of professional conduct. For this misconduct, the Supreme Court of Illinois suspended Respondent for six months and until further order of that Court. * * *

Being duly advised, the Court orders Respondent suspended indefinitely from the practice of law in this state as of the date of this order. Respondent is already under suspension for noncompliance with this state’s continuing legal education (“CLE”) requirements.* * *

If Respondent is granted reinstatement in Illinois, Respondent may file a “Motion for Reinstatement” pursuant to and in full compliance with Admission and Discipline Rule 23(28)(e), provided there is no other suspension order in effect at the time, including Respondent’s current CLE noncompliance suspension order.

Posted by Marcia Oddi on May 19, 2016 01:04 PM
Posted to Ind. Sup.Ct. Decisions

Ind. Decisions - Court authorizes bulk release of data excluded from public access re certain juvenile cases

In the Matter of the Request by the University of Cincinnati Corrections Institute for Release of Bulk Data or Compiled Information Excluded from Public Access is a 5-page, May 17th order of the Supreme Court authorizing the release of specified data from two thousand juvenile cases, equally divided between 2014 and 2015 for specific research purposes, with conditions.

Posted by Marcia Oddi on May 19, 2016 12:55 PM
Posted to Ind. Sup.Ct. Decisions

Ind. Decisions - Court of Appeals issues 3 opinion(s) today (and 5 NFP memorandum decision(s))

For publication opinions today (3):

In In re the Matter of: R.H. (Minor Child) and T.H. (Mother) v. The Ind. Dept. of Child Services, a 15-page opinion, Judge Robb writes:

R.H. was adjudicated a child in need of services (“CHINS”) shortly after her birth. During the CHINS proceedings, the Marion County Department of Child Services (“DCS”) filed a motion seeking an order that reasonable efforts to reunify R.H. and T.H. (“Mother”) were not required. The juvenile court issued such an order on August 17, 2015, and thereafter held a permanency hearing on September 15, 2015, and changed the permanency plan for R.H. from reunification to adoption. Mother appeals the no reasonable efforts order, raising one issue for our review: whether the juvenile court’s order finding that reasonable efforts to reunify the family are not required violated her rights under Title II of the Americans with Disabilities Act (“ADA”) and Section 504 of the Rehabilitation Act (“RA Section 504”). Concluding the juvenile court did not violate Mother’s rights in finding DCS was not required to make reasonable reunification efforts, we affirm.
In Steven M. Bush v. Robinson Engineering & Oil, Co., Inc., a 16-page opinion appealing an order issued by the full Indiana Worker’s Compensation Board, Judge Kirsch concludes:
Here, there was a “presence of evidence adverse to [Bush’s] contentions” and, ultimately, we agree with Robinson that “the Board was free to reject Dr. Sasso’s reports as not credible or rely on the other evidence in the record that contradicted Bush’s claim of cervical injury” as having occurred on, or been exacerbated by, the August 13, 2010 incident. Smith, 754 N.E.2d at 23; Appellee’s Br. at 6. Accordingly, we affirm the decision of the Board concluding that Bush did not suffer a compensable cervical injury in the August 2010 incident and denying Bush’s claim for additional evaluation of and treatment to his cervical spine. Affirmed.
In Mitchell Carroll v. State of Indiana , a 12-page opinion, Judge Bailey writes:
Mitchell Carroll (“Carroll”) was charged with a number of offenses in the Grant Superior Court. In response to Carroll’s behavior during hearings conducted both by video conference and with Carroll physically present in the courtroom, the trial court found Carroll to be in direct contempt of court and, as a result, ordered Carroll incarcerated for ninety days. Carroll appeals. We affirm.

Carroll raises two issues for our review. We restate these as:
I. Whether, because Carroll’s conduct occurred while he was not physically present in the courtroom, a contempt citation is barred under Indiana law; and
II. Whether the trial court erred when it concluded that Carroll’s conduct on two occasions was contumacious. * * *

That Carroll’s conduct occurred while Carroll was in the Grant County Jail, across the street from the courthouse in which the trial court was located, does not preclude applicability of the direct contempt statute, so long as his conduct created a disturbance in a court of record. This is so whether or not Carroll himself was physically present in the courtroom at the time. Holding otherwise would read the statute too narrowly, and would compromise the ability of trial courts to ensure their ability to conduct business and dispense justice. * * *

That Carroll’s conduct occurred during a video hearing, and not in a courtroom, did not preclude application of the contempt statute. The trial court did not abuse its discretion in twice finding that Carroll was in contempt of court.

NFP civil decisions today (2):

Courtney Allen v. Jeffrey Shelburne (mem. dec.)

Richard A. Vagedes v. Betty Jo Vagedes (mem. dec.)

NFP criminal decisions today (3):

Michael S. Collins v. State of Indiana (mem. dec.)

Sherease Holmes v. State of Indiana (mem. dec.)

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

Posted by Marcia Oddi on May 19, 2016 12:35 PM
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Appellants file for rehearing in House email/public records case

The Appellants in Citizens Action Coalition of Indiana, et al v. Eric Koch, and Indiana House Republican Caucus (CAC v. Koch) have today filed with the Supreme Court a petition for rehearing:

... arguing that the Court’s April 19 ruling is inconsistent with the narrow doctrine of separation of powers non-justiciability and that it effectively renders APRA impotent in both the legislative and executive branches as a tool to enable the people to know what their state government is up to, and second, asking the Court to remand to the trial court for a determination of Appellants’ fees since they prevailed with respect to important public issues in the case, namely the applicability of APRA to the General Assembly, its members and political party caucuses.
The Appellants add:
We will be supported on the merits by an extremely well-written amicus brief filed by Graydon Head & Ritchey LLP, representing the Indiana Society of Professional Journalists.
Here is the docket in the case. A notable docket item, dated May 18th, is the Court's order granting Attorney Geoffrey G. Slaughter’s motion requesting withdrawal of his appearance as counsel for the Appellees. Mr. Slaughter was appointed to the Supreme Court by Gov. Pence on May 9th.

Posted by Marcia Oddi on May 19, 2016 11:53 AM
Posted to GA and APRA | Ind. Sup.Ct. Decisions | Indiana Government

Ind. Courts - "Disciplinary Commision recommends discipline for former Marion Co. prosecutor Carl Brizzi" [Updated Twice]

So reported Jordan Fischer of WRTV6 late last evening. A disclaimer at the top of the story notes: "Carl Brizzi has served as an on-air legal analyst for RTV6 in the past, but has no ongoing affiliation with the station." A snippet from the story itself:

INDIANAPOLIS -- The Indiana Supreme Court's Disciplinary Commission recommended disciplinary action Monday against former Marion County prosecutor Carl Brizzi.

A verified complaint for disciplinary action filed this week claims Brizzi committed three violations of the Rules of Professional Conduct for Attorneys at Law related to a real estate deal in Elkhart, Indiana, and a plea deal given in a criminal case in Marion County – both connected to his friend and then-business partner Paul Page.

[Updated at 9:00 AM] Vic Ryckaert, Indianapolis Star, has posted this story, headed "Commission recommends discipline for ex-Prosecutor Carl Brizzi." The story begins:
The Indiana Supreme Court's Disciplinary Commission recommended sanctions after finding former Marion County Prosecutor Carl Brizzi engaged in a "pattern of misconduct."

In an eight-page verified complaint filed Monday, the commission slammed Brizzi for lying, failing to disclose a shady real estate deal and intervening in a criminal case as a favor to a business partner.

"The current matter involves the use of public office to benefit the client of a friend and business partner and is in violation of the public trust," the complaint states.

The commission said Brizzi showed a "pattern of misconduct in his official capacity as the elected prosecutor."

Brizzi, a Republican who served two terms as prosecutor from 2003-2010, could not immediately be reached for comment. * * *

The recommendation is now before the Indiana Supreme Court, which makes the final decision on disciplinary action .

[Updated at 5:15 PM] Kristine Guerra of IndyStar has posted a long retrospective headed "Carl Brizzi's past was not a quiet one. Here's a snapshot." The story begins:
Carl Brizzi has avoided controversy over the past couple of years. But this week, the embattled former Marion County prosecutor — once mired in two malpractice lawsuits, he also had ties to swindler Tim Durham — found himself back in the spotlight.

The Indiana Supreme Court's disciplinary arm is accusing Brizzi, a Republican who served two terms as prosecutor from 2003 to 2010, of a "pattern of misconduct." More specifically, the disciplinary commission claims he intervened in a plea deal that resulted in a lenient sentence for a client of Paul Page, a former defense attorney and developer who is also Brizzi's friend and business partner.

Posted by Marcia Oddi on May 19, 2016 08:16 AM
Posted to Indiana Courts