Friday, December 02, 2016

Ind. Courts - "Workplace Bias Against Gays Could Be Illegal, 7th Cir. Judges Hint"

A long, excellent story by Michael J. Bologna of Bloomberg BNA, about the en banc oral argument November 30th in Kimberly Hively v. Ivy Tech Community College, begins:

Discrimination based on sexual orientation might be prohibited by federal law, several Seventh Circuit judges suggested, raising hopes among gay rights advocates that the court is poised to fill a gap in the nation’s anti-bias laws.

Six of the 11 judges of the U.S. Court of Appeals for the Seventh Circuit questioned an Indiana employer’s assertion that Title VII of the 1964 Civil Rights Act offers no protection to a lesbian employee who said she was discriminated against because of her sexual orientation.

The judges, hearing oral arguments Nov. 30, expressed frustration with the employer’s strict interpretation of the plain language of the statute.

A critical question before the court is whether Title VII’s prohibition against discrimination on the basis of sex includes discrimination based on sexual orientation.

Title VII says nothing about protections for individuals based on sexual orientation, and Congress has declined to add sexual orientation as a protected class under the statute, John Maley, the attorney for the employer, Ivy Tech Community College, told the court.

But the panel peppered Maley with questions and viewpoints asserting a more expansive understanding of sex in the context of employment discrimination. The judges also pointed to the court’s authority to broaden the statute to adapt to changing social conditions.

“Constantly, judges are reinterpreting statutes in ways that are not consistent with the actual thinking of the people who enacted the statute,” Judge Richard Posner said. “Why isn’t this a perfect case for that?”

Posted by Marcia Oddi on December 2, 2016 06:15 PM
Posted to Ind. (7th Cir.) Decisions

Ind. Courts - Yet more on "Special judge appointed to Hammond City Court "

Updating this ILB post from Nov. 23rd, which quoted reports that Hammond Mayor Tom McDermott Jr. was unhappy with Gov. Pence's appointment to fill the Hammond City Court judge vacancy, the NWI Gazette has a post today from Ken Davidson that begins:

In his weekly radio show [today, Dec. 2], Hammond Mayor Thomas McDermott, Jr. announced that he has asked the Hammond City Council to begin “systematically and slowly closing down our city court over time.” McDermott stated that closing down the Court would be a three step process that would take up to three years. The first step would be accomplished as soon as January 1, 2017 according to the Mayor. “I will order the Hammond Police Department to stop filing all criminal cases in Hammond City Court effective January 1, 2017” Mayor McDermott announced. Attorney Kevin Smith explained that Hammond City Courts hear primarily three types of cases “the city and town courts around Lake County hear usually ordinance violations, which are like if you don’t cut your grass, don’t have your dog tags, then they have infractions which are like your speeding tickets, traffic tickets, and then they hear criminal misdemeanor cases which carry up to one year in jail that is like theft, DUI . . . ” McDermott explained that Hammond residents who are charged with a crime “may be inconvenienced.” “If you are charged with a crime, you may have to go to Crown Point. I don’t care, don’t get charged with a crime” the Mayor stated.

In 2019 we are predicting that all cases will be out of Hammond City Court by that time and Judge Jurgensen will get paid for nothing. McDermott stated that he hoped all Court and Clerk employees who live in Hammond and may be displaced by the plan would be absorbed into other City jobs.

The Mayor stated that the plan has been in the works for 8 years. “The court continuously loses money” the Mayor stated. “Clerk Golec and I have been talking about this and he has already downsized his staff” the Mayor explained.

Some of the cases, particularly ordinance violations and civil cases, could be absorbed by the Lake Superior Court in Hammond. The Lake Superior Court is located at 232 Russell Street, just steps from the proposed new City Hall and the Hammond Police Station. One area of concern that was not mentioned by the Mayor or Kevin Smith is evictions. The Hammond City Court handles a large number of eviction cases for Hammond residents as well as for tenants in neighboring communities. Many of those cases will now be pushed off to Lake Superior Court in Hammond or Crown Point.

Posted by Marcia Oddi on December 2, 2016 04:57 PM
Posted to Indiana Courts | Indiana Government

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

In USA v. Juan Briseno (ND Ind., Simon). a 17-page opinion, Judge Williams writes:

Juan Briseno was convicted of multiple racketeering crimes relating to his participation in a street gang. On appeal he seeks a new trial, arguing that dur ing closing arguments, the government improperly referenced evidence pertaining to a prior acquittal, impermissibly shifted the burden of proof to him, and vouched for gov ernment witnesses in an inappropriate fashion.  

But Briseno failed to object at trial to any of these state‐ ments, and none was so egregious that the trial judge should have intervened. Although earlier in the trial the govern ment highlighted evidence relating to an attempted murder for which Briseno had been acquitted, that evidence was also relevant to several other distinct charges that were submit ted to the jury. And while the government did erroneously shift the burden of proof by suggesting that Briseno could be acquitted only if the jury concluded that the government’s witnesses had testified falsely, that error was made harmless by multiple curative instructions from the judge and by the significant evidence weighing in the government’s favor. Fi nally, the statements that Briseno argues constitute improper vouching are better viewed as permissible appeals to the ju rors’ common sense.

In addition, Briseno complains that the jury instruction on the RICO conspiracy charge was internally inconsistent and confusing, since it required the government to prove an agreement as to the commission of “at least two acts of rack eteering” but not “two or more specific acts.” We find no er ror in this instruction, as it mirrors our pattern jury instruc tion on the topic and comports with our case law. So we af‐ firm Briseno’s conviction. * * *

In addition, Briseno has failed to demonstrate cumulative error, since he has failed to identify any error that individu ally or in combination with others deprived him of a fair tri al. See United States v. Powell, 652 F.3d 702, 706 (7th Cir. 2011) (Cumulative error requires proof “(1) that multiple errors occurred at trial; and (2) those errors, in the context of the entire trial, were so severe as to have rendered his trial fun‐ damentally unfair.”); Alvarez v. Boyd, 225 F.3d 820, 825 (7th Cir. 2000) (“[C]ourts must be careful not to magnify the sig nificance of errors which had little importance in the trial setting.”). So Briseno has failed to show that he is entitled to a new trial.

Posted by Marcia Oddi on December 2, 2016 03:47 PM
Posted to Ind. (7th Cir.) Decisions

Ind. Decisions - Rare written dissent filed in transfer denial of termination of parental rights case involving ADA

The Court of Appeals decided In the Termination of the Parent-Child Relationship of N.C. (Minor Child) and A.C. (Father) v. The Indiana Department of Child Services on June 21, 2016. Here is the ILB summary. The opinion concluded:

... Father waived the issue of whether the ADA applies in a termination of parental rights proceeding. Waiver notwithstanding, Father’s discrimination claim cannot serve as a basis to attack the trial court’s termination order.
Last yesterday afternoon the Supreme Court filed an order in In the Termination of the Parent-Child Relationship of N.C. and A.C. v. IDCS, which it has just posted, stating that the Court denies a petition for transfer. The vote was 3-2. The order includes a rare, 3-page written dissent from denial of transfer:
Rush, C.J., and Massa and Slaughter, JJ., concur.
David, J., dissents with separate opinion in which Rucker, J., concurs.

I respectfully dissent from the denial of transfer in this case as I believe this Court should grant transfer and address the Americans with Disabilities Act (ADA) issue to provide further guidance and to expressly overrule part of the holding in Stone v. Daviess Cnty. Div. of Children and Family Srvs., 656 N.E.2d 824 (Ind. Ct. App. 1995). * * *

I would grant transfer and hold that a disabled parent may use non-compliance with the ADA as a defense to the termination of his or
her parental rights where DCS has provided discretionary services, but failed to provide reasonable accommodations to a disabled parent.

Posted by Marcia Oddi on December 2, 2016 03:29 PM
Posted to Ind. App.Ct. Decisions | Indiana Transfer Lists

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

For publication opinions today (1):

In First American Title Insurance v. Stephen W. Robertson, Insurance Commissioner of the State of Indiana, in his official capacity, on behalf of the Indiana Department of Insurance, a 17-page opinion, Judge Barnes writes:

First American Title Insurance Company (“FATIC”) appeals the trial court’s dismissal of its complaint against Stephen Robertson, Insurance Commissioner of the State of Indiana (“Commissioner”), in his official capacity, on behalf of the Indiana Department of Insurance (“IDOI”). We affirm.

FATIC raises two issues, which we consolidate and restate as whether the trial court properly dismissed FATIC’s Writ of Prohibition and Action for Mandate, Request for Declaratory Relief, and Verified Amended Petition for Judicial Review against IDOI. * * *

There is no claim here that IDOI lacks jurisdiction or general authority to investigate claims like those presented here. Rather, the issue is whether the Commissioner’s order was timely. As in Johnson, this type of fact-sensitive issue should be resolved in the first instance by the administrative agency, not through a declaratory judgment action or action for prohibition and mandate. Further, we note that neither Twin Eagle nor Johnson addressed the specific issue presented here—whether res judicata prevented FATIC from filing a declaratory judgment action and action for prohibition and mandate after having received an unfavorable result through the first appeal process. FATIC had an administrative remedy here and was required to pursue that remedy. Outboard Boating Club of Evansville, Inc. v. Indiana State Dep’t of Health, 952 N.E.2d 340, 343 (Ind. Ct. App. 2011) (“[W]here an administrative remedy is available, filing a declaratory judgment action is not a suitable alternative.”). Although its remedy failed due to its failure to file the complete agency record, res judicata prevents FATIC from taking a second bite at the apple by filing the instant action. We conclude that the trial court properly granted IDOI’s motion to dismiss.

NFP civil decisions today (1):

In the Termination of the Parent-Child Relationship of: I.C. and Z.S., minor children, and C.S., Mother v. The Indiana Department of Child Services (mem. dec.)

NFP criminal decisions today (4):

Beth Montgomery v. State of Indiana (mem. dec.)

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

Stephani Merrell v. State of Indiana (mem. dec.)

Gary Chavez v. State of Indiana (mem. dec.)

Posted by Marcia Oddi on December 2, 2016 11:15 AM
Posted to Ind. App.Ct. Decisions

Ind. Decisions - ND Ind. rules on application of sex offender ordinance in Hartford City

In Valenti v. Hartford City Indiana, a 32-page ND Ind. opinion by Judge Springmann, the issue is a Hartford City sex offender ordinance. From the opinion:

The Plaintiff moved to Hartford City in 2014 with his wife and minor child. In 1993, the Plaintiff was convicted in California of a sex offense involving a child under the age of 14, and is therefore required to register as a sex offender under Indiana law. Shortly after he moved to Hartford City, a member of the police department informed the Plaintiff about the Ordinance.

The Plaintiff alleges that the Ordinance has caused him to significantly curtail his activities in Hartford City, including going to the library with his child, entering his child’s school, going to Hartford City parks, bowling with his family, attending church where there are separate youth services, joining the YMCA, having his child participate in YMCA activities, and voting at his designated polling place. The Plaintiff maintains that when he lived in California, he would frequently go to his child’s school to work with staff there because his child has learning disabilities, but that he is now unable to do so and his child has suffered because of this. Referring to the original definition, the Plaintiff asserts that he does not know what loiter means, nor does he know all the locations where it would be impermissible for him to loiter. He alleges that the restriction is burdensome, as he cannot wait in the parking lot of places where his child may go bowling or participate in or attend sporting events. In fact, the Plaintiff received a citation from the Hartford Police Department when he was a passenger in his brother’s car, which was parked at his brother’s house across the street from a school. He was waiting to be taken to pick up his own child from another school.

The Plaintiff asserts that the revised definition of loiter remains unclear and causes him uncertainty. He questions whether driving by a park three or four times in the course of running errands would be considered “circulating around a place.” He also complains that the definition does not depend on what he is doing, but on how others might perceive it. * * *

Having weighed the punitive and non-punitive nature of the seven factors as they apply to the Plaintiff and his circumstances, the Court finds that the effects of the Ordinance “are so punitive in nature as to constitute a criminal penalty.” Gonzalez, 980 N.E.2d at 317 (citing Wallace, 905 N.E.2d at 378). The Ordinance imposes substantial affirmative restraints that are historically considered punishment and triggered by a past criminal conviction, and does so in a manner that is excessive in relation to the Ordinance’s stated purpose. It violates the Indiana Constitution’s prohibition on ex post facto laws because it imposes burdens that have the effect of inflicting greater punishment on the Plaintiff than what could have been imposed in 1988 when he committed the crime. The Plaintiff is entitled to a judgment that applying the Ordinance to him violates Indiana’s ex post facto laws. * * *

In his Motion for Partial Summary Judgment, the Plaintiff requests that the Court “[p]ermanently enjoin Ordinance 2008-01.” (Mot. 2, ECF No. 34.) The specifics of that request are not clear. If the Plaintiff is asking that the Defendant be enjoined from enforcing the Ordinance against him because it would be an ex post facto punishment, the Court agrees. If the Plaintiff is asking that the Ordinance be permanently enjoined as to all individuals or all class members, the Court does not find a basis for that request. It is only the inclusion of the loitering prohibition that creates a due process violation. The remainder of the Ordinance has not been challenged, and remains intact and enforceable. Thus, to the extent the Plaintiff seeks to permanently enjoin all enforcement of the Ordinance against the class members, that request is denied.

For the reasons stated above, the Court GRANTS IN PART AND DENIES IN PART the Plaintiff’s Motion for Partial Summary Judgment [ECF No. 34], and DENIES the Defendant’s Cross-Motion for Summary Judgment [ECF No. 37]. Because Hartford City Ordinance 2008-01 violates Indiana Constitution Art. 1, § 24, as applied to the Plaintiff, the Defendant is enjoined from enforcing it against the Plaintiff. The Pre-Amendment Ordinance definition of loiter violated due process. By separate order, the Court will set a telephone status conference to set a trial to determine the Plaintiff’s individual damages. The amended definition of loiter also violates the Fourteenth Amendment, and the Defendant is enjoined from imposing fines for any violation of the loitering prohibition contained in Ordinance 2008-1.

The Court will enter a final judgment outlining the appropriate relief after resolution of the entire case.

Posted by Marcia Oddi on December 2, 2016 10:09 AM
Posted to Ind Fed D.Ct. Decisions

Courts - "New court software is so awful it’s getting people wrongly arrested: Problematic Odyssey Case Manager software package is used nationwide"

That is the headline to a story today by Cyrus Farivar of ArsTechnica. The lengthy story begins:

OAKLAND, Calif.—Most pieces of software don’t have the power to get someone arrested—but Tyler Technologies’ Odyssey Case Manager does. This is the case management software that runs on the computers of hundreds and perhaps even thousands of court clerks and judges in county courthouses across the US. (Federal courts use an entirely different system.)

Typically, when a judge makes a ruling—for example, issuing or rescinding a warrant—those words said by a judge in court are entered into Odyssey. That information is then relied upon by law enforcement officers to coordinate arrests and releases and to issue court summons. (Most other courts, even if they don’t use Odyssey, use a similar software system from another vendor.)

But, just across the bay from San Francisco, Alameda County's deputy public defender, Jeff Chorney, says that since the county switched from a decades-old computer system to Odyssey in August, dozens of defendants have been wrongly arrested or jailed. Others have even been forced to register as sex offenders unnecessarily. “I understand that with every piece of technology, bugs have to be worked out,” he said, practically exasperated. “But we're not talking about whether people are getting their paychecks on time. We're talking about people being locked in cages, that's what jail is. It's taking a person and locking them in a cage.”

Odyssey is used not only in Alameda County and additionally in 25 of California’s 58 county courts, but also in counties nationwide, from Miami-Dade County, Florida, to Kane County, Illinois. Lawyers in at least three counties in as many states have reported problems nearly identical to Alameda's and have begun formal legal proceedings as a result. Earlier this month, an activist group in Shelby County, Tennessee, alleged similar issues in a recently filed federal civil rights lawsuit. According to the Memphis Daily News, Shelby County Commissioners discussed on Wednesday possible legal action against Tyler Technologies.

Due to the same glitches, inmates in Marion County, Indiana, sued the county sheriff nearly two years ago in federal court over a related issue—that case is still ongoing.

ILB: But there is no mention of a software issue in the Marion County, Indiana complaint, only of a two-day delay in a jail release in December, 2014.

Were the Marion County criminal courts even using Odyssey in 2014? This ILB post from June 17, 2014, is headed "Marion County joins Odyssey Case Management System for criminal cases."

Posted by Marcia Oddi on December 2, 2016 09:40 AM
Posted to Courts in general | Indiana Courts

Thursday, December 01, 2016

Ind. Gov't. - "Protest of privatized, politicized pavilion draws 200 to hearing on alcohol in Dunes State Park"

Kevin Nevers' lengthy story in the Chesterton Tribune Wed. began:

Upwards of 200 people appeared at a public hearing on Tuesday to express, in the strongest possible terms, their opposition to alcohol service at a remodeled Pavilion and proposed banquet center at Indiana Dunes State Park.

Over the course of the three-hour hearing 39 actually spoke, every one of them against alcohol service.

The hearing, held at Woodland Park in Portage, was convened by the Indiana Natural Resources Commission (NRC) specifically in connection with a proposed rule change in the Indiana Administrative Code (IAC). That change, as NRC representative Sandra Jensen explained it, would bring the rule currently governing alcohol service at Dunes State Park into compliance with the legislation enacted earlier this year which, on the one hand, authorizes the Department of Natural Resources (DNR) to apply to the Indiana Alcohol and Tobacco Commission (IATC) for three-way permits on behalf of its state parks; and, on the other, requires IATC to grant such permits.

Yet, as Jensen suggested bluntly--after six folks had already remonstrated--the very narrowness of the NRC’s interest in the matter rendered many, if not most, of people’s comments irrelevant to the issue.

Because, Jensen said, the current IAC rule already permits alcohol service “on the licensed premises of a pavilion” at Dunes State Park, pursuant to earlier legislation enacted in 2015. The proposed rule change, accordingly, would simply reflect the new statute, under which not Pavilion Partners LLC would be the three-way licensee but the DNR itself.

“We’re not here to talk about the permit but about the rule proposal,” Jensen said. So “what do we about” the new statute? someone asked from the audience. “I can’t answer that question,” Jensen replied. “It’s beyond me.”

So “what are we commenting on? What are the parameters of the meeting?” someone else asked. “I can’t offer anything with regard to that,” Jensen responded. “I understand and empathize. But I have absolutely nothing to offer in that respect.”

The upshot, however, as Jensen continued, is that the history of alcohol consumption at Dunes State Park, the potential dangers of alcohol near or on the beach, the events which prompted the enactment of the new legislation and the process by which it was enacted, and the politics and business ventures of Pavilion Partners principal Chuck Williams simply aren’t relevant to the decision to be made by the NRC: whether or not to adopt the proposed rule change.

"Hearing on alcohol in park turns contentious" is the heading to Joyce Russell's story in the NWI Times. A sample:
Not only did the residents speak loud and clear about what a mistake they believed it would be to allow alcohol at the park, the hearing officers also got an earful from residents alleging improprieties between developers Pavilion Partners and state legislators.

"Pavilion Partners went down to Indianapolis and got this omnibus piece of crap," said Paul Mache, of Chesterton, referring to legislation passed this year allowing the Department of Natural Resources to apply for liquor licenses for nine state parks, including Indiana Dunes. The DNR applied for and received alcohol permits in August.

Residents pointed out that twice the local alcohol commission denied the partners, who are remodeling the pavilion and hope to construct a beachside banquet center with a liquor permit. When that decision was upheld at the state level, Julie Rosler, of Union Mills, said "a powerful local Republican" went to Indianapolis and used his influence to get the legislation passed.

"Everything about this project has been done behind the curtain," said Duane Davidson, adding residents have been fighting the proposed changes at the state park for 18 months, but seem not to be heard.

And in the Gary Post-Tribune, Amy Lavalley has a long story (here via the Ind.Econ.Digest) headed "Residents frustrated about alcohol at Indiana Dunes State Park pavilion." A quote:
Both the plans for serving liquor at the pavilion and the banquet center have generated a wide swath of opposition from the grassroots group Dunes Action and others since the plans became public more than a year and a half ago.

The change in state law, which allowed the DNR to apply for liquor permits to the Indiana Alcohol and Tobacco Commission for its state parks without public comment, came after both the county and state liquor boards denied a permit for Pavilion Partners' plans at the pavilion.

"You are privatizing profit to Pavilion Partners and socializing risk to Indiana taxpayers," said Julia Roesler of Union Mills, adding that under the terms of the lease, "if Pavilion Partners can't sell alcohol, taxpayers have to pay them back for what they invested."

The process that handed a liquor license to the state park took away local control, said State Rep. Chuck Moseley, D-Portage, adding that even if he filed a bill "to make this go away," the bill would die because of the Republican supermajority in the legislature.

ILB: The ILB has many earlier posts on this topic.

Posted by Marcia Oddi on December 1, 2016 01:19 PM
Posted to Indiana Government

Courts - Many in limbo because a federal district judge in Texas ruled last week to halt an overtime rule that was supposed to take effect Dec. 1

The ILB had a post last Friday quoting a NYT story headed "Overtime Rule Is but the Latest Obama Initiative to End in Texas Court."

The ILB has seen little about the blocking of the overtime rule, and was pleased to see a long story yesterday by Suzanne Spencer, WSBT, headed "Delayed overtime rule puts 188,000 Michiana workers, businesses on hold." Some quotes from the good story:

Welch Packaging is one of dozens of companies around Indiana and Michigan attempting to navigate its way through a proposed overtime rule.

The rule would have impacted those who make less than $47,476, who are salaried and work more than 40 hours per week.

It also called for an “automatic update” every three years to ensure the wage level was consistent with Department of Labor standards.

A federal judge in Texas issued an injunction, halting the rule, 10 days before the rule was set to take effect.

“It’s something that as a leadership team, we spent time talking about,” said Welch Packaging Director of Human Resources Matt Davis. “There was a cost to it already in just the planning and administrative preparation that went into it.”

Davis said the rule would have impacted 1-2% of their workforce, mostly mid-level managers. While the company did not go as far as making financial changes, they were in the planning stage of staggering shifts to keep a closer-eye on employees to ensure 40-hour work weeks.

“We’ve taken a ‘wait and see’ approach where we’re planning for the change to take effect, but not making any drastic changes in case something like the injunction were to happen,” said Davis.

Other companies did make changes.

“Most employers I’ve talked to are going forward with it,” said St. Joseph County Chamber of Commerce President Jeff Rea. “The court decision hasn’t necessarily affected them one way or another because they’ve already had those conversations with employees.”

Going “backwards,” Rea said, may put a strain on the relationship between employer and employee; particularly, he said, as managers may keep a closer-eye over employees work habits, schedule, or flexibility.

The LA Times has a Q&A story today headed "A judge blocked Obama's expansion of overtime pay. What that means, and what comes next." A snippet:
Businesses nationwide had spent the last several months preparing for the new rule. But the judge’s decision has left them and their employees in limbo. The Labor Department said it’s reviewing its legal options.

(Hourly paid employees generally are eligible for overtime pay regardless of how much they earn per year.)

What happens next? We asked Jared Ashworth, assistant professor of economics at Pepperdine University, to explain.

And from Jonnelle Marte in today's Washington Post, a story headed "Millions of workers in limbo after rule expanding overtime pay eligibility is put on hold." A few quotes:
The Labor Department rule, which would have made overtime pay available to more than 4 million additional workers, was challenged in court by a number of business groups and a collection of states [ILB: 21 states, including the State of Indiana]. The judge ruled that the department exceeded its authority when it more than doubled the salary limit that determines which workers should be made eligible for overtime pay. * * *

The rule would have made overtime pay an option for full-time salaried employees earning up to $47,476 a year — substantially more than the current threshold of $23,660 a year. The rule hadn’t been updated in 12 years.

But business groups, states and other employers expressed concerns that the higher income threshold would hurt their bottom lines, disrupt their business models, or limit opportunities for employees. * * *

The Labor Department said it strongly disagreed with the court’s decision and is currently reviewing its legal options.

The timeline for when the court will reach a final decision depends on what the department does next, legal experts say. If the Labor Department challenges the injunction as expected, some consumer groups said they are worried that the rule advocated by President Obama may not survive under the next administration. One scenario is that the Labor Department under President-elect Donald Trump could decide to drop the case, putting an end to the rule, says Ross Eisenbrey, vice president for the Economic Policy Institute, a left-leaning think tank.

As a result, Eisenbrey said, the institute is researching options for becoming a party in the lawsuit so that it could continue the case even if the Labor Department drops out. “That shouldn’t be the end of the matter,” he said.

The last-minute delay of the rule, which was halted less than two weeks before it was supposed to go into effect, created confusion for some employers that have spent the past several months preparing for the regulation. Some companies offered raises to managers so that their salaries would be above the proposed threshold. Other workers were set to become eligible to be paid time-and-a-half on any time worked beyond 40 hours a week.

Posted by Marcia Oddi on December 1, 2016 12:47 PM
Posted to Courts in general

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

For publication opinions today (1):

In Corey Middleton v. State of Indiana , a 16-page opinion (including a separate "concur in result with opinion"), Judge Altice writes:

Corey Middleton appeals from the denial of his petition for post-conviction relief. He asserts that the post-conviction court erred in rejecting his claim of ineffective assistance of trial counsel. * * *

As noted previously, there was overwhelming evidence to support his convictions. Judgment affirmed.

Bradford, J., concurs.
Pyle, J., concurs in result with opinion. [that begins, on p. 14]

I concur with my colleagues holding, but I write separately because I believe Middleton’s counsel’s performance fell below current objective professional norms and also prejudiced Middleton. During voir dire, Middleton’s counsel properly explored the issue of race with prospective jurors. However, counsel referred to his absent client as a “Negro.” In a sterile environment, this word might not be any more offensive than the next. But, we do not live in a sterile environment. Words have power. Words convey explicit and implicit meanings they have acquired. While many dictionaries may still define the term “Negro” as “a person of black African origin or descent[,]” it is also cross referenced with the vile slur known euphemistically as “the N-word.” OXFORD ENGLISH DICTIONARY, http://www.oed.com (last visited November 21, 2016) [hereinafter OXFORD ENGLISH DICTIONARY]. * * *

Before evidence had even been introduced, potential jurors saw and heard Middleton’s attorney, the person who was supposed to be his advocate, refer to Middleton in a racially offensive manner. While there is no evidence that counsel intended harm to Middleton, the harm was nonetheless inflicted. Middleton was presented to potential jurors in a racially offensive manner. For these reasons, I believe counsel’s performance during voir dire was deficient and also prejudiced Middleton. Nonetheless, in order for us to reverse the trial courts denial of Middleton’s petition, we would have to believe that “but for counsel’s errors, the result of the proceeding would have been different.” Oberst v. State, 935 N.E.2d 1250, 1254 (Ind. Ct. App. 2010). In this case, the evidence against Middleton was considerable. As a result, I am not convinced that the result would have been different.

NFP civil decisions today (1):

Christopher Pete v. Ray Forrester (mem. dec.)

NFP criminal decisions today (1):

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

Posted by Marcia Oddi on December 1, 2016 11:05 AM
Posted to Ind. App.Ct. Decisions

Ind. Law - "State Legislative Drafting Manuals and Statutory Interpretation"

That is the title to an interesting 65-page article in The Yale Law Journal, authored by Grace E. Hart. The abstract:

Although legislation has become a central feature of our legal system, relatively little is known about how statutes are drafted, particularly at the state level. This Note addresses this gap by surveying drafting manuals used by bill drafters in state legislatures. These manuals describe state legislatures’ bill drafting offices and outline conventions for statutory formatting, grammar, and style. These documents are valuable tools in statutory interpretation as information about drafting offices provides context for analyzing legislative history, and drafting conventions can illuminate statutory meaning. This Note offers normative justifications for using drafting manuals in statutory interpretation as well as principles to guide state courts in considering drafting manuals in their jurisprudence.
The ILB has referred to Indiana's Bill Drafting Manuals in various posts over the years. For example:
  • This Dec. 29, 2004 post pointed to the "Effective Dates" discussion in the Indiana General Assembly's 1999 bill drafting manual.
  • This Feb. 6, 2006 ILB post discusses a court opinion that refers to the heading of a section of the Indiana Code; the ILB points to the LSA Bill Drafting Manual discussion of section headings.
  • This Sept. 28, 2011 ILB post is headed "Use of 'may' and 'shall' ... with repect to the issue of what 'may not' means," and refers to the Indiana General Assembly's bill drafting manual.
  • This Jan. 17, 2012 ILB post, headed "Are binding referendums constitutional in Indiana?," compares provisions in the then-current bill drating manual with the 1971 Draftsman's Manual (which I co-authored).

Posted by Marcia Oddi on December 1, 2016 09:31 AM
Posted to Indiana Law

Ind. Courts - 7th Circuit, sitting en banc, hears argument re whether "whether Title VII of the 1964 Civil Rights Act extends to sexual orientation"

Supplementing this ILB post from yesterday, Fatima Hussein of the Indianapolis Star reports in this morning's edition - some quotes:

The question for the 7th Circuit Court of Appeals [sitting en banc] in Chicago on Wednesday was whether Title VII of the 1964 Civil Rights Act extends to sexual orientation.

The court heard oral arguments from former Ivy Tech Community College adjunct professor Kimberly Hively's legal defense team from Lambda Legal, the Equal Employment Opportunity Commission and legal representatives from the college.

Hively, from South Bend, sued Ivy Tech in 2014, saying it passed her over for a permanent position and refused to renew her contract as an adjunct professor after school administrators learned she is a lesbian.

Ivy Tech has consistently denied that Hively was denied promotion because of her sexual orientation.

Wednesday morning, judges posed questions to both parties. Addressing Ivy Tech's defense attorney John Maley of Barnes & Thornburg, Chief Judge Diane Wood noted: "It is a little odd — you (Ivy Tech) said we deplore sexual orientation discrimination, but we're going to do it anyway." Maley rejected the notion.

One judge questioned Hively's lawyer: "Are we placing too much power in the judiciary to amend the word 'sex' to include sexual orientation when we know this was not the initial intent of Congress? Congress has no affinity for altering the definition of sex." * * *

The 11-judge panel on Wednesday repeatedly compared the case at hand to the landmark Supreme Court case 1967 case Loving v. Virginia, which invalidated laws prohibiting interracial marriage.

Posted by Marcia Oddi on December 1, 2016 08:50 AM
Posted to Ind. (7th Cir.) Decisions

Courts - "Trump's 21 potential court nominees are overwhelmingly white, male and from red states"

That is the headline and the lede to this long USA TODAY story this morning by Richard Wolf that contains brief looks at the potential nominees, including Diane Sykes of the 7th Circuit.

Posted by Marcia Oddi on December 1, 2016 08:37 AM
Posted to Courts in general

Wednesday, November 30, 2016

Ind. Courts - Still more on "7th Circuit can make civil rights history for gay and lesbian employees"

Here is the direct link to today's en banc oral argument in Kimberly Hively v. Ivy Tech Community College. It is 55 minutes long. (The ILB earlier was confused by the 22-minute audio of the 3-judge panel oral argument).

All 9 active judges on the 7th Circuit participated, along with (as the rules provide) the two senior status judges who were on the original panel. This leaves only Senior Judge Manion as a non-participant. So the lineup today was: Wood, Bauer, Posner, Flaum, Easterbrook, Ripple, Kanne, Rovner, Williams, Sykes, and Hamilton.

In trying to distinguish the voices, be aware that the judges who didn't ask questions were Judges Flaum, Ripple, and Bauer (the latter two have senior status and were on the original panel).

The female questioners are Chief Judge Wood, Judges Williams, Sykes and Rovner (Rovner BTW was on the original panel and asked all the questions at that time).

The male judges' voices are Easterbrook, Posner, and Hamilton. (Update: And Kanne, sorry)

Posted by Marcia Oddi on November 30, 2016 07:16 PM
Posted to Ind. (7th Cir.) Decisions

Ind. Decisions - Court of Appeals issues 4 opinion(s) today (and 13 NFP memorandum decision(s))

For publication opinions today (4):

In Mark Vinup v. Joe's Construction, LLC and Joe Getz and Property-Owners Insurance Company v. Joe's Construction, LLC and Joe Getz, a 19-page opinion, Judge Kirsch writes:

After Mark Vinup (“Vinup”) was injured on the job while working for Joe’s Construction, LLC and Joe Getz (together, “Joe’s Construction”), Vinup filed a lawsuit against Joe’s Construction seeking damages for his personal injuries. The commercial general liability insurer for Joe’s Construction, PropertyOwners Insurance Company (“Property-Owners”), filed a declaratory judgment action, seeking a declaration that, pursuant to a policy exclusion, it had no duty to defend and no duty to pay any judgment that might be rendered against Joe’s Construction or Joe Getz (“Getz”). The trial court consolidated the declaratory judgment action with Vinup’s action, and, thereafter, Property-Owners and Joe’s Construction each filed a motion for summary judgment. The trial court granted both motions, and Vinup now appeals, raising several issues that we consolidate and restate as: Whether the trial court erred when it determined as a matter of law that Vinup was an employee of Joe’s Construction at the time he was injured. We affirm. * * *

Property-Owners maintain that Vinup was not a “temporary worker” as that term is defined in the Policy. Property-Owners emphasizes that a “temporary worker,” as defined in the Policy is someone who is “furnished to the insured to substitute for a permanent employee or to meet seasonal or short-term workload conditions.” Id. at 112 (emphasis added). Vinup was neither “furnished” to Joe’s Construction by some other party nor was he substituting for a permanent employee. Therefore, Property-Owners asserts, Vinup did not qualify under the Policy’s definition of “temporary worker.” We agree. Vinup testified that Getz asked for his help with the Aberdeen Project, and Getz testified likewise, stating that he offered the work to Vinup. Id. at 154, 193. Under the plain language of the Policy, Vinup was not a “temporary worker,” and the trial court did not err when it granted Property-Owners’s motion for summary judgment.

In Judi Simek, and Scott Everett v. Christopher Nolan d/b/a Lakeside Farm, LLC, and William P. McCall, III, an 11-page opinion, Judge Crone writes:
Judi Simek brings an interlocutory appeal from the trial court’s denial of her motion to reconsider its previous denial of her motion to dismiss the claims filed against her by Christopher Nolan d/b/a Lakeside Farm, LLC, and William P. McCall, III (collectively “the Plaintiffs”). Specifically, Simek asserts that dismissal is warranted pursuant to Indiana Rule of Trial Procedure 12(B)(2) because the trial court lacks personal jurisdiction over her. We agree and therefore reverse and remand with instructions for the trial court to dismiss the Plaintiffs’ claims against Simek. * * *

Simek’s sole relationship with this litigation is the fact that she appears to have a current business arrangement with Everett regarding the ownership of Cinnamon Beach. There are no facts to indicate that she personally initiated, expected, or encouraged contacts with Indiana such that she could have reasonably foreseen being haled into court here. This case is a prime example of when a defendant cannot be haled into a jurisdiction solely as a result of the unilateral activity of another party and/or a third person. Simply put, Simek does not have a substantial connection to Indiana, and therefore she cannot be said to have purposely availed herself of the trial court’s jurisdiction.

In sum, Indiana lacks specific jurisdiction over Simek. Her alleged conduct, even when viewed in the light most favorable to the Plaintiffs, did not establish a substantial connection between herself and this State, and thus cannot support personal jurisdiction. Simek has established prima facie error in the trial court’s denial of her motion to reconsider her motion to dismiss for lack of personal jurisdiction. Consequently, we reverse and remand with instructions for the trial court to dismiss the Plaintiffs’ claims against Simek.

In Hannum Wagle & Cline Engineering, Inc. d/b/a HWC Engineering, Inc., Marlin A. Knowles, Jr., Jonathan A. Day, Tom Mobley, and David Lancet v. American Consulting, Inc., et al., a 41-page opinion (including a concurring opinion) involving "a lawsuit for, among other things, breach of contract" a non-compete agreement and a preliminary injunction. Judge Kirsch writes the majority opinion, affirming the trial court. Judge Baker's concurring opinion, which begins on p. 40:
I am compelled to concur fully with the majority opinion, but I write separately to voice my serious concerns about the extreme breadth of clause two of the relevant provision in the Knowles Agreement. Specifically, Knowles may not “solicit or communicate with any such customers for the purpose of selling, providing, attempting to sell or provide, or assisting any person or entity in the sale or provision of, any Competing Products/Services[.]” HWC Appellant’s App. p. 135-37 (emphasis added). To tell a person who works in sales that he may not even communicate with past or potential clients is to take away his proverbial bread and butter. He may no longer schmooze. That is far too draconian to sit comfortably with me. And in this case, it goes a step farther, because the past and potential clients are all government employees, which takes it even farther into an overly restrictive realm.

We have largely moved as a society from an economy of goods to an economy of services. The disfavor with which this State views restrictive covenants should be heightened, in my view, where the purported irreparable harm cannot be quantified—which is almost always the case when it is the provision of services that is at the heart of a restrictive covenant. Under these circumstances, I believe only the narrowest of restrictive covenants should be enforceable, and I do not believe that clause two of the Knowles Agreement qualifies. With the current state of caselaw, however, I am compelled to concur fully with the majority opinion.

In Sauntio Carter v. State of Indiana, an 18-page opinion (including a concurring opinion), Judge Riley writes:

Carter claims that there is insufficient evidence to uphold his battery conviction. * * *

It is well established that “[a] parent has a fundamental liberty interest in maintaining a familial relationship with his or her child.” Willis v. State, 888 N.E.2d 177, 180 (Ind. 2008). Included within this fundamental liberty interest is “the right of parents ‘to direct the upbringing and education of children,’ including the use of reasonable or moderate physical force to control behavior.” Id. (internal citation omitted) (quoting Pierce v. Soc’y of Sisters, 268 U.S. 510, 534- 35 (1925)). However, the State also “has a powerful interest in preventing and deterring the mistreatment of children[,]” and “the potential for child abuse cannot be taken lightly.” Id. Thus, prosecutors and courts are left with the difficult task of determining “when parental use of physical force in disciplining children turns an otherwise law-abiding citizen into a criminal.” * * *

In order to convict a parent for battery where parental privilege is asserted, “the State must prove that either: (1) the force the parent used was unreasonable or (2) the parent’s belief that such force was necessary to control [his or] her child and prevent misconduct was unreasonable.” Id. (citing Restatement of the Law (Second) Torts, § 147 (1965)). Here, the State does not contest the reasonableness of Carter’s belief that the use of force was necessary. Rather, the State maintains that Carter exerted unreasonable force in disciplining M.C., such that the parental privilege is negated.

While there “are no bright-line rules” as to what is considered “proper and reasonable parental discipline of children[,]” the Indiana Supreme Court has adopted the view that “[a] parent is privileged to apply such reasonable force or to impose such reasonable confinement upon his [or her] child as he [or she] reasonably believes to be necessary for [the child’s] proper control, training, or education.’” * * *

Ultimately, the trial court concluded that Carter’s use of force—i.e., at least fourteen strikes with a belt which resulted in significant bruising and lasting pain—exceeded reasonableness, and on appeal, we are mindful of the trial court’s role in weighing the evidence and assessing witness credibility to determine whether a parent’s actions were justified as reasonable parental discipline. See Smith, 34 N.E.3d at 255. Although we are troubled by the lack of clear guidance for parents to be able to distinguish between reasonable discipline and battery, it was the trial court’s duty to balance the Willis factors, and we decline to reweigh the evidence. Thus, we conclude that there is sufficient evidence to support Carter’s conviction for battery resulting in bodily injury. * * *

Robb, J. concurs
Crone, J. concurs with separate concurring opinion [that begins on p. 16]

As noted above, “prosecutors and courts are left with the difficult task of determining ‘when parental use of physical force in disciplining children turns an otherwise law-abiding citizen into a criminal.’” Slip op. at 6-7 (quoting Willis, 888 N.E.2d at 180). I write separately to suggest that our supreme court made that task much more difficult by importing the vague reasonableness standard of the Restatement of Torts into the criminal arena. * * *

That being said, courts must step in where legislatures decline to tread, so unless and until the General Assembly enacts clearer guidelines for parental discipline (or our supreme court adopts a more workable standard), trial judges and jurors must rely on their experience and judgment to determine when parents cross over the blurry line that separates lawful from unlawful conduct, and appellate courts must give those determinations significant deference. For that reason, I reluctantly concur in my colleagues’ affirmance of Carter’s battery conviction.

NFP civil decisions today (3):

In the Termination of the Parent-Child Relationship of J.P.: J.S. (Father) v. The Indiana Department of Child Services (mem. dec.)

Kenneth Slate v. The Health and Hospital Corporation of Marion County, Indiana, Public Health Division (mem. dec.)

In the Term. of the Parent-Child Relationship of: A.F. (Minor Child), and D.F. (Father) v. The Ind. Dept. of Child Services (mem. dec.)

NFP criminal decisions today (10):

Matthew C. Elzey, Jr. v. State of Indiana (mem. dec.)

Ronnie Bradfield v. State of Indiana (mem. dec.)

Jeremy Shrum v. State of Indiana (mem. dec.)

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

Brian K. Wynne v. State of Indiana (mem. dec.)

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

Sammie L. Binion v. State of Indiana (mem. dec.)

Corey Brown v. State of Indiana (mem. dec.)

Brent A. Clemons v. State of Indiana (mem. dec.)

Muhamed Dugonjic v. State of Indiana (mem. dec.)

Posted by Marcia Oddi on November 30, 2016 11:38 AM
Posted to Ind. App.Ct. Decisions

Ind. Courts - Update on the Commercial Courts project

On Sept. 27th of this year, the ILB reported:

MyCase.in.gov now has a separate option for "commercial courts." A search run this afternoon by the ILB disclosed that currently 34 cases have filed in the commercial courts around the state.

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

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

Today, two months later, the ILB has run another search. The results:
  • Currently 49 cases have filed in the commercial courts around the state.

  • Of the 49 cases, 39 have been filed in Marion Superior Court, Civil Division 1.

  • Of the remaining 10, 7 have been filed in Allen County, 2 in Elkhart County, and 1 in Vanderburgh County.

Posted by Marcia Oddi on November 30, 2016 11:16 AM
Posted to Ind. Commercial Courts

Ind. Decisions - Judge dismisses City of Fort Wayne v. SW Allen Co. Fire District and Auditor

James Duffy reported today in the Fort Wayne Journal Gazette - some quotes:

The city of Fort Wayne will have to find another way to claim lost taxes after a judge Monday dismissed a suit filed in May against the Southwest Allen County Fire Protection District, based in Aboite Township, and county Auditor Tera Klutz.

Allen County Superior Court Judge Craig J. Bobay dismissed the suit, saying his court does not have jurisdiction over the case.

The lawsuit covered 1987 to 2006 and claimed that property taxes collected by the Southwest Allen County Fire Protection District should have gone to the Fort Wayne Fire Department. The FWFD had taken over fire protection in an annexed area formerly served by the southwest fire district. * * *

The city’s suit alleged that Klutz had misread the applicable state statute. Klutz disputed the city’s contention that she incorrectly interpreted the law. The city claimed that annexation law was applicable, not tax law.

But Bobay said the city was required to initiate a required administrative appeal from which the state-based Department of Local Government Finance could make a final determination on the matter.

Then the city could seek a judicial review from the Indiana Tax Court.

Read the story for more. Here is the 15-page opinion, dated Nov. 28, 2016.

Posted by Marcia Oddi on November 30, 2016 10:53 AM
Posted to Ind. Trial Ct. Decisions

Ind. Decisions - "Jury finds for Elkhart hospital in malpractice case: Psychiatric patient sexually assaulted by another patient"

Virginia Black reports in the South Bend Tribune in a story that begins:

ELKHART — A lengthy medical malpractice trial ended with a jury deciding Elkhart General Hospital was not in the wrong after a patient on its psychiatric wing was sexually assaulted twice by a patient in the next room in 2008.

The trial, which began Nov. 15 and ended Wednesday, involved a young woman who was admitted to the psychiatric wing after being diagnosed as psychotic and suicidal. She had become convinced she was being left behind by the "rapture" of Christians being lifted to heaven.

Having seen another patient — a middle-aged man admitted for detox services — wrapped in a bedsheet, she believed he was Jesus, court documents say. She told hospital officials she wanted to wash the man's feet, and at one point she threw ice water on a doctor trying to treat the man.

The other patient left the hospital but was later readmitted. Although the wing was nearly empty, he was placed in the room next to the young woman's. This, South Bend attorney Rick Morgan said Monday, was despite the man having behaved inappropriately during readmission and even telling the staff, "I have problems with women."

The man twice lured the young woman into his room and, believing he was Jesus and she had to obey him, she submitted to sexual acts. The assaults were later confirmed by a physical exam after officials did not initially believe her.

The lawsuit was filed in 2009 as a negligence case. Hospital attorneys argued it should be treated as a medical malpractice case.

Judge Evan Roberts agreed the case could proceed as a simple civil lawsuit, but Indiana's appeals court reversed the order, citing the issue of the young woman's treatment as key. The state Supreme Court voted 3-2 against hearing the case. [Here is the appellate docket]

Medical malpractice lawsuits are notoriously difficult to win in Indiana, whose law requires a lengthy process involving the appointment of a three-person medical review panel. The findings of such a panel — composed of three other doctors in the same field — are not binding, but they carry a lot of weight with a jury.

The panel in this case had ruled in favor of the hospital.

Posted by Marcia Oddi on November 30, 2016 10:18 AM
Posted to Ind. Trial Ct. Decisions

Ind. Courts - "Filings, people representing themselves on the rise"

Annie Goeller, managing editor of the Johnson County Daily Journal, reports on the recently released Indiana trial court statistics for 2015. Some quotes [ILB emphasis]:

The number of cases filed in local courts went up slightly last year, which officials said is fueled by more police on the streets in local communities.

New case filings in Johnson County increased slightly in 2015, compared to 2014, according to a report from the Indiana Supreme Court.

In the last few years, the number of case filings in local courts has dropped, especially after improvements in the economy, including fewer foreclosures and lower unemployment rates.

That provided some relief to local courts’ caseloads, along with the addition of a new court, Superior Court 4, last year.

But in recent years, filings have started to increase slightly. In 2015, local courts had 28,171 new case filings, just under 1 percent more than the year before, but still significantly down from 2010 when nearly 36,000 new cases were filed, according to the state statistics.

The majority of that increase did not come from new criminal case filings, and instead were from more people being ticketed for traffic violations and local rule violations, Johnson County Deputy Prosecutor Alex Hamner said. In fact, criminal case filings actually went down from 2014 to 2015.

One big reason behind that increase could be due to local communities who have hired more police officers in recent years, he said.

And from 2014 to 2015, the number of new cases filed for ordinance violations, such as certain traffic or parking violations, increased by more than 2,600, he said.

That increase could also be one reason for another spike in the number of people representing themselves in their cases, which hit 7,410 in 2015, up more than 25 percent from 2014.

Often, people choose to represent themselves in those cases, rather than paying for an attorney, he said.

Posted by Marcia Oddi on November 30, 2016 09:43 AM
Posted to Indiana Courts

Ind. Decisions - "Indiana Supreme Court clarifies traffic stop rules"

Dan Carden of the NWI Times reports on the two Supreme Court decisions yesterday. The long story begins:

INDIANAPOLIS — The Indiana Supreme Court issued two rulings Tuesday clarifying when police can stop or enter a vehicle after receiving a third-party report of a motorist in danger.

Posted by Marcia Oddi on November 30, 2016 09:35 AM
Posted to Ind. Sup.Ct. Decisions

Ind. Courts - More on "7th Circuit can make civil rights history for gay and lesbian employees" [Updated]

Updating this ILB post from Nov. 29th, the en banc 7th Circuit oral argument in Hively v. Ivy Tech. is this morning. My best guess is it will begin at 10:30 EST, 9:30 Chicago time. The Court's daily calendar has not yet been updated for today, it states:

The calendar is posted on the court’s web page each morning by 9:00 a.m. [CST]
You will be able to listen to an audio of the oral argument here. It is numbered 15-1720. Expect some confusion because there may be as many as 11 different judges speaking [WOOD, BAUER, POSNER, FLAUM, EASTERBROOK, RIPPLE, KANNE, ROVNER, WILLIAMS, SYKES, HAMILTON], with no identification. (I'm not certain if you can listen in real time, or if the audio is posted later, if I remember correctly, it is the latter...)

Madeline Buckley of the Indianapolis Star has a long story today on the case, headed "LGBT worker's civil rights case could reach beyond state." A sample from the long story:

The full 7th U.S. Circuit Court of Appeals in Chicago will hear arguments in the case Wednesday in what could be a precedent-setting decision. Ivy Tech has consistently denied that Hively was not promoted because of her sexual orientation.

"Ivy Tech Community College values and embraces diversity," School spokesman Jeff Fanter said in a statement. "It is an equal opportunity employer that does not condone, and in fact explicitly prohibits, employment discrimination based upon a person’s sexual orientation."

If the court was to rule in favor of Hively — which would allow her to go forward with her lawsuit — the decision would implement workplace protections for gay and lesbian residents within the court's jurisdiction of Indiana, Illinois and Wisconsin. That would essentially render moot an ongoing battle in the Indiana General Assembly over legislation that would add a statewide anti-discrimination clause for LGBT Hoosiers.

But if the court rules against Hively, she could appeal her case to the U.S. Supreme Court, setting her case up to potentially have national impact.

The case is cheered by advocates who say it would offer essential protections for lesbian, gay, bisexual and transgender workers and close a gap left from the landmark U.S. Supreme Court decision, Obergefell v. Hodges, that legalized same-sex marriage, but fell short of implementing workplace protections based on sexual orientation and gender identity.

[Updated at 10:28] The great resource, Equality Case Files, has all the briefs here.

Posted by Marcia Oddi on November 30, 2016 09:01 AM
Posted to Ind. (7th Cir.) Decisions

Tuesday, November 29, 2016

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

Updating this ILB post from May 27th, Ken de la Bastide of the Anderson Herald Bulletin reports:

Madison Circuit Court Judge Angela Sims has approved a summary judgment against embattled local attorney Stephen Schuyler foreclosing on his Adams Township property.

Sims on Nov. 21 granted the motion for summary judgment filed by First Merchants Bank foreclosing on the mortgage in the amount owed by Schuyler and his girlfriend, Kim Golden, entering a judgment of $210,452. She ordered Schuyler to pay $30,612 in legal fees. * * *

Schuyler is scheduled to go on trial in Madison Circuit Court Division 3 on March 9 before Judge Thomas Newman Jr. A final pretrial conference is set for Feb. 6.

Schuyler is facing 15 felony counts of theft, check deception and corrupt business influence for allegedly misappropriating funds from six estates totaling more than $700,000.

Madison County Prosecutor Rodney Cummings said Monday the summary judgment has no impact on the pending criminal cases. He said the trial will probably take place in March. * * *

Schuyler’s legal problems started in January 2015 when a check he wrote to East Lynn Christian Church in the amount of $78,387.13 bounced. The church was named as a beneficiary in the estate of Sara Wilding.

In 2015, Criminal Magistrate Steve Clase removed Schuyler from more than 130 cases in which he had a fiduciary interest in estates and guardianships. The cases were assigned to other attorneys.

This year the Indiana Attorney Disciplinary Commission recommended that Schuyler’s license to practice law be suspended indefinitely for non-cooperation in the investigation of complaints filed against him. The Indiana Supreme Court accepted the recommendation.

Posted by Marcia Oddi on November 29, 2016 06:05 PM
Posted to Ind. Trial Ct. Decisions

Ind. Decisions - Supreme Court decides two today, re search & seizure

In Mary Osborne v. State of Indiana, an 8-page, 5-0 opinion, Justice Massa writes:

Mary Osborne filed this interlocutory appeal following the trial court’s denial of her motion to suppress, on the grounds that the traffic stop giving rise to the charges was not permissible under the Fourth Amendment to the United States Constitution or Article 1, Section 11 of the Indiana Constitution. Although we believe the officer’s actions in this case were prompted by a genuine desire to serve and protect, we hold that, under the circumstances, those actions constituted an improper intrusion upon Osborne’s constitutional privileges against unreasonable search and seizure. Accordingly, we reverse. * * *

a warrantless search or seizure is per se unreasonable, and the State bears the burden to show that one of the “well-delineated exceptions” to the warrant requirement applies. [cites omitted]

The United State Supreme Court has identified one such exception relevant to this matter: that the officer had “an objectively reasonable basis for believing that medical assistance was needed, or persons were in danger.” [cites omitted] * * *

Turning to the instant matter, Officer Arnold responded to a report that a woman was trapped under her car, which undoubtedly could give rise to a reasonable concern that emergency medical assistance was needed, prompting further investigation, as in both Bruce and Trotter. However, the actual facts he subsequently confronted did not objectively support that concern: Officer Arnold learned that Osborne had freed herself prior to his arrival at the gas station, Osborne operated her vehicle normally, and Officer Arnold witnessed no traffic infractions or criminal conduct.

In Eduardo Cruz-Salazar v. State of Indiana, a 4-page, 5-0 opinion, Justice Massa writes:
Eduardo Cruz-Salazar appeals his conviction for Class A misdemeanor possession of cocaine, claiming the warrantless search which led to the discovery of the drugs was improper under the Fourth Amendment to the United States Constitution and Article 1, Section 11 of the Indiana Constitution. In this companion decision, issued today with Osborne v. State, No. 29S02- 1608-CR-433, -- N.E.3d -- (Ind. Nov. 29. 2016), we find Cruz-Salazar’s search permissible, and affirm. * * *

In Osborne v. State, No. 29S02-1608-CR-433, -- N.E.3d -- (Ind. Nov. 29. 2016), also issued today, we described in detail the relevant Fourth Amendment and Article 1, Section 11 concerns, and thus we proceed directly to their application here. Police received a report of a stationary vehicle that had been running for 30 minutes, in the early hours of a cold December morning. This alone is sufficiently unusual to merit further investigation, as it could be an indicator of distress. Police arrived on scene to find the situation as reported, and indeed worse: Cruz-Salazar was at the wheel of the vehicle, and was not responsive when Officer Ayler both shined his flashlight through the windows or when he tapped on the window. At this point, the officer had an objectively reasonable basis to open the door and check on Cruz-Salazar’s well-being. See Michigan v. Fisher, 558 U.S. 45, 49 (2009) (holding the Fourth Amendment permits warrantless search and seizure if police had “an objectively reasonable basis for believing that medical assistance was needed, or persons were in danger.”) Accordingly, we find the warrantless entry into Cruz-Salazar’s vehicle permissible under the Fourth Amendment to the Federal Constitution and Article 1, Section 11 of the Indiana Constitution.

Posted by Marcia Oddi on November 29, 2016 01:37 PM
Posted to Ind. Sup.Ct. Decisions

Ind. Decisions - Court of Appeals issues 0 opinion(s) today (and 4 NFP memorandum decision(s))

For publication opinions today (0):

NFP civil decisions today (2):

Jeffery Allen Bell v. Leslie Ann Bell (mem. dec.)

In The Matter of J.H., A Child Alleged To Be Delinquent v. State of Indiana (mem. dec.)

NFP criminal decisions today (2):

Jennifer M. Wright v. State of Indiana (mem. dec.)

Buford G. Lee v. State of Indiana (mem. dec.)

Posted by Marcia Oddi on November 29, 2016 11:10 AM
Posted to Ind. App.Ct. Decisions

Ind. Gov't. - "Historic surgeon general's report on addiction"

Aprile Rickert of the News and Tribune reports in a lengthy story (here via the Ind. Econ. Digest):

SOUTHERN INDIANA — Local health leaders are hoping a first-of-its-kind report from the U.S. surgeon general on the growing problem of drug addiction is a groundbreaking moment in fighting substance abuse in Southern Indiana.

The 472-page report, "Facing Addiction in America: The Surgeon General's Report on Alcohol, Drugs and Health," details the scope of addiction in America — from physiological and psychological causes and effects on individuals, their families and communities, to prevention strategies and policy changes to properly address treatment.

It's the first time the surgeon general has issued a report on addiction, and the first of this size and scope since the Surgeon General's Report on Smoking and Health, released in 1964.

Perhaps most notable is Surgeon General Vivek Murthy's words defining addiction. Since it is largely stigmatized and often misunderstood, many do not get treatment they require to return to being healthy and whole members of the community.

“Addiction is not a character flaw,” Murthy states in the report. “It is a chronic illness that we must approach with the same skill and compassion that we approach heart disease, diabetes and cancer.

“Research reviewed in this report should eliminate many of the long-held, but incorrect stereotypes about substance misuse and substance abuse disorders, such as that alcohol and drug problems are the product of faulty character or willful rejection of social norms.”

These misconceptions have gone a long way to keep people from receiving treatment, either out of shame from the stigma or because the resources are not accessible.

Posted by Marcia Oddi on November 29, 2016 10:22 AM
Posted to Indiana Government

Ind. Courts - "7th Circuit can make civil rights history for gay and lesbian employees"

From Alison Frankel's Reuters' "On the Case" column Monday - some quotes:

Under federal law as it exists right now in the United States, gay men and lesbians can marry their partners over the weekend and can be fired the following Monday for doing so, without any recourse under the Civil Rights Act.

But that may be about to change.

On Wednesday, the en banc 7th U.S. Circuit Court of Appeals will hear arguments in Hively v. Ivy Tech Community College, in which former Ivy Tech adjunct professor Kimberly Hively claims the college refused to allow her to interview for a full-time job and ultimately did not renew her contract because she is a lesbian. The case gives the 7th Circuit a historic opportunity to fix what three of its own judges have called “a jumble of inconsistent precedents” and a “confused hodge-podge of cases.” If the full appellate court sides with Hively and her lawyers from the Lambda Legal Defense and Education Fund, gays and lesbians will finally receive protection under federal law from workplace discrimination.

Click the link and read on, this is a lengthy, excellent analysis.

See a long list of earlier ILB entries on the case here.

Posted by Marcia Oddi on November 29, 2016 07:40 AM
Posted to Ind. (7th Cir.) Decisions

Ind. Law - "'Planets are aligned' to get rid of handgun carry license"

Tony Cook reports in today's Indianapolis Star - some quotes from the long story:

Gun rights advocates see the upcoming legislative session as their best shot yet to get rid of an Indiana law that requires a license to carry handguns.

The controversial legislation failed to advance during the last session, but supporters think this time could be different after sweeping Republican victories on Election Day and with a new, gun-friendly lawmaker overseeing the committee that acts as a gatekeeper on such bills.

"I think the planets are aligned this year," said Rep. Jim Lucas, a Seymour Republican who plans to file the bill when lawmakers convene in January.

He and other advocates of so-called "constitutional carry" — including the powerful National Rifle Association — see licensing requirements and fees as unnecessary impediments to their constitutional right to keep and bear arms. They want Indiana to join at least 11 other states that allow people to carry concealed handguns on their person or in their vehicles without a permit.

"I want to decriminalize our constitutional right to bear arms," Lucas said. "Our right to self-defense shouldn’t be controversial."

Boosting his hopes is a new chairman of the Indiana House committee that handles firearms legislation: Rep. Ben Smaltz.

Smaltz, an Auburn Republican, was appointed chairman of the House Public Policy Committee last week to replace outgoing chairman Tom Dermody, who did not run for re-election. The public policy committee is often the first stop for legislation dealing with hot-button issues including guns, alcohol, gambling and abortion.

Smaltz has been a staunch advocate of gun rights. * * *

The state currently has more than 750,000 active handgun licenses. Nearly 4,900 applications were rejected last year, according to Indiana State Police.

Licenses, which have a one-time cost of $75, can be denied for various reasons including felony or domestic violence convictions, certain drug and alcohol convictions and being found mentally incompetent by a court.

The push in Indiana to get rid of handgun licensing requirements is part of a nationwide effort on the part of gun advocates. At least four states — West Virginia, Mississippi, Idaho and Missouri — have passed new laws within the past year to ditch their permitting requirements.

Another reason for optimism among supporters in Indiana is the election of Gov.-elect Eric Holcomb, whose campaign featured commercials of his wife, Janet, training women how to shoot handguns and pledging that her husband would defend gun rights.

Posted by Marcia Oddi on November 29, 2016 07:27 AM
Posted to Indiana Law

Monday, November 28, 2016

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

In USA v. Darryl Worthen (SD Ind., Barker), a 6-page opinion, Judge Kanne writes:

Worthen entered into a plea agreement with the government under which he agreed to plead guilty to these two charges and further agreed to waive his appeal rights. In exchange, the government agreed to drop the other charges and promised to not seek the death penalty.  * * *

Irrespective of the appeal waiver, Worthen now appeals his conviction, arguing that Hobbs Act robbery—the predi‐ cate offense for Worthen’s § 924(j) conviction—is not a “crime of violence” as the statute defines that term. Thus, Worthen contends that his § 924(j) conviction is invalid.

Before we can address this argument, Worthen must con‐ vince us that he has not waived his right to an appeal. Gener‐ ally speaking, appeal waivers are enforceable and preclude appellate review. United States v. Sines, 303 F.3d 793, 798 (7th Cir. 2002). Even so, we have recognized a few narrow excep‐ tions to this rule—one of which is that a defendant may al‐ ways contest a sentence that exceeds the statutory maximum for the crime committed. * * *

To be clear, the crux of Worthen’s argument is that the validity of his appeal waiver depends on the validity of his conviction. That argument is entirely circular. Indeed, to determine whether Worthen’s crime‐of‐violence conviction is invalid, we would have to take the appeal in the first place. Then, only if we agree with Worthen and conclude that his conviction is in fact invalid would we find that Worthen’s sentence exceeds the statutory maximum, which in turn would mean that Worthen did not waive his appeal rights. So the rule would be that an appeal waiver is enforceable unless the appellant would succeed on the merits of his appeal. That cannot be the law. * * *

Here, Worthen “expressly waive[d] his right to appeal [his] conviction and sentence … on any and all grounds.” (R. 45 at 4.) His waiver precludes an appeal. We accordingly DISMISS Worthen’s appeal without considering the merits.  

Posted by Marcia Oddi on November 28, 2016 01:54 PM
Posted to Ind. (7th Cir.) Decisions

Ind. Gov't. - "Industrial wind turbines will not be allowed in or near the Town of Hagerstown"

So reports Bob Hansen in this Nov. 23rd story in the New Castle Courier-Times. The story begins:

The Hagerstown Town Council plans to enact a zoning change that will effectively ban industrial-sized wind turbines in an area referred to as the two-mile fringe, council members told a room full of area residents Monday. The two-mile fringe is an area outside of town where town development and zoning standards apply.

About 15 people attended the meeting to ask the council for action against plans by an international utility company to put up wind turbines.

Even before the assembled group gave its information, council members presented a plan to keep wind turbines out of the area. The plan involves extending a flight path regulation covering the Hagerstown Airport to cover the entire two-mile fringe, said council member Brian Longbons. Most of the two-mile fringe is already in the flight path area, where structures cannot exceed 100 feet in height.

Industrial wind turbines are usually more than 150 feet tall.

Many of the same group of people had attended a town plan commission meeting Nov. 9 to encourage the town to act against a wind turbine proposal put forth by EDP Renewables. According to a map of the proposal, wind turbines are planned north and west of the town’s zoning area. Members of the group said they fear that if that current proposal is approved, it would be only the first step towards having hundreds of wind turbines surrounding the town.

Posted by Marcia Oddi on November 28, 2016 01:27 PM
Posted to Indiana Government

Ind. Decisions - Tax Court issues one today

In The University of Phoenix, Inc. v. Indiana Department of Revenue, a 6-page decision, Judge Wentworth denies the Indiana Department of State Revenue’s motion for a Protective Order, concluding:

“Given that the scope of discovery is broad and highly dependent on the facts of each case, the Court must exercise discretion in determining what discovery is necessary and what is vexatious.” Popovich , 7 N.E.3d at 413 (citations omitted). The Court do es not find UoPX’s request to depose Mr. Alley [Michael Alley, the former Commissioner of IDOR] vexatious . Accordingly , the Department’s Motion is DENIED. Consistent with the requirements of Indiana Trial Rule 37(A)(4), the Court will schedule a hearing regarding the propriety of an award of expenses b y separate cover.

Posted by Marcia Oddi on November 28, 2016 01:11 PM
Posted to Ind. Tax Ct. Decisions

Ind. Decisions - Court of Appeals issues 0 opinion(s) today (and 7 NFP memorandum decision(s))

For publication opinions today (0):

NFP civil decisions today (3):

In the Term. of the Parent-Child Relationship of: T.M., M.M., E.M., Jn.M., and Js.M. (Minor Children), T.M., Jr. (Father) v. Ind. Dept. of Child Services (mem. dec.)

In re: The Adoption of: K.A.M., J.A.M. v. P.E.U. (mem. dec.)

Elizabeth Marshall v. Sean Marshall II (mem. dec.)

NFP criminal decisions today (4):

Juan Hernandez v. State of Indiana (mem. dec.)

Edward Flynn v. State of Indiana (mem. dec.)

Venus G. Graves v. State of Indiana (mem. dec.)

Brandon D. Godsey v. State of Indiana (mem. dec.)

Posted by Marcia Oddi on November 28, 2016 01:05 PM
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Transfer list for week ending Nov. 25, 2016

Here is the Clerk's transfer list for the week ending Friday, November 25, 2016. It is two pages (and 28 cases) long.

Two transfers were granted last week (thereby vacating the COA opinions):

  • Thomas Pinner v. State of Indiana - this was a 2-1 Aug. 24, 2016 COA opinion (4th case), where the majority wrote:
    As the officers did not have reasonable suspicion to stop Pinner and this was not a consensual encounter, the trial court abused its discretion when it denied his motion to suppress. As such, we reverse.
  • Indiana Alcohol and Tobacco Commission v. Spirited Sales, LLC - 56A Transfer Granted - All Justices concur, except Massa, J., who is not participating.

    ILB: The Supreme Court has granted Emergency (56A)transfer of the trial court decision. For more information, see these Aug. 29th and a second Aug. 29th ILB posts, the latter of which includes the trial court ruling.

In addition, there was one case last week where transfer was denied by a 3-2 vote:
  • Adoption of S.Z.; R.W. v. C.G. - This was a NFP COA opinion from Feb. 3, 2016 where the panel reversed, ruling: "The trial court's finding that Mother's consent to Uncle's petition to adopt S.Z. was required is clearly erroneous." Transfer Denied - All Justices concur, except Rucker and David, JJ., who vote to grant the petition to transfer.

Posted by Marcia Oddi on November 28, 2016 10:21 AM
Posted to Indiana Transfer Lists

Ind. Gov't. - "Bureau of Indian Affairs blesses South Bend casino, tribal village"

Erin Blasko reported Nov. 24th in the South Bend Tribune in a long story that begins:

SOUTH BEND — The Bureau of Indian Affairs has approved plans by the Pokagon Band of Potawatomi Indians for a $400 million hotel and casino in South Bend.

A press conference on the decision featuring tribal Chairman John Warren, tribal council members, Mayor Pete Buttigieg and Common Council member Oliver Davis is set for 11 a.m. Tuesday at Four Winds Field.

According to a media alert, Warren and others will deliver “(r)emarks related to the decision by the Bureau of Indian Affairs to take into trust 166 acres of Pokagon Band land located between Prairie Avenue, U.S. 31 and Locust Road in the city of South Bend.”

See also this ILB post from May 14, 2015.

Posted by Marcia Oddi on November 28, 2016 09:46 AM
Posted to Indiana Government

Environment - "U.S. Steel to pay $2.2 million fine, clean up Gary pollution"

Joseph S. Pete reported Nov. 23rd in the NWI Times:

U.S. Steel will pay a fine of $2.2 million and clean up pollution in Gary, Michigan and Illinois as part of an agreement with the U.S. Justice Department.

The Justice Department and the states of Indiana, Illinois and Michigan sued the Pittsburgh-based steelmaker in 2012 over alleged Clean Air Act violations. U.S. Steel reached an agreement Tuesday to settle the lawsuit that was filed in federal district court in the Northern District of Indiana.

As part of the consent decree, U.S. Steel agreed to remove contaminated transformers at Gary Works and repair a large opening in a metal shell around a blast furnace to cut down on emissions at the steel mill on Lake Michigan. Such construction projects typically result in jobs for local union tradespeople.

“I applaud the united, collaborative effort by all parties who worked to resolve this matter and to hold accountable those responsible for polluting the environment,” Indiana Attorney General Greg Zoeller said. “No one should be subjected to living and working in a polluted environment.”

Posted by Marcia Oddi on November 28, 2016 09:35 AM
Posted to Indiana Government

Ind. Courts - Magnus-Stinson to be new SD Ind. Chief Judge

From a news release just issued:

INDIANAPOLIS, Indiana (November 28, 2016): On Wednesday, November 23, 2016, the United States District Court for the Southern District of Indiana came under the leadership of a new chief judge, the Honorable Jane E. Magnus-Stinson. She assumed this position upon the expiration of Judge Richard L. Young’s term as chief judge.

Chief Judge Magnus-Stinson received her commission as district judge for the Southern District of Indiana on June 9, 2010, filling a vacancy created by Judge Larry J. McKinney’s assumption of senior status on July 4, 2009. Before becoming a district judge, Chief Judge Magnus-Stinson served the Southern District of Indiana as a magistrate judge from 2007 until her elevation. Prior to that, from 1995-2007, she was a judge on the Marion County Superior Court. Chief Judge Magnus-Stinson is a graduate of Butler University and the Indiana University McKinney School of Law.

Chief Judge Magnus-Stinson currently serves on the Defender Services Committee of the Judicial Conference of the United States, the Seventh Circuit Criminal Pattern Jury Instructions Committee, the Seventh Circuit Advisory Committee on Rules, and the Seventh Circuit Committee on Supervised Release. She has served as Chair of the Facility/Court Security Committee for the Southern District of Indiana since 2010.

During Judge Young’s seven-year term as chief judge, the court welcomed two new district judges (Judge Magnus-Stinson and Judge Tanya Walton Pratt) and four new magistrate judges (Mark J. Dinsmore, Denise K. LaRue, Matthew P. Brookman, and Van T. Willis). During that same time, Judge Sarah Evans Barker assumed senior status, a vacancy that remains unfilled. Also during Judge Young’s time as chief judge, the court closed more than 24,500 civil and criminal cases, placing the Southern District of Indiana 6th in the nation by weighted caseload.

Judge Young provided the court with valuable leadership during his tenure. Under his direction, the court moved to a paperless filing system, except in miscellaneous cases; initiated a prisoner e-filing system that is now in use at eight different detention facilities; operated without interruption during a government shutdown and numerous continuing resolutions; instituted the ability for attorneys to file new cases electronically; and transitioned to a new financial management system. Additionally, for a significant portion of Judge Young’s term as chief judge, the Birch Bayh Federal Building and United States Courthouse was under renovation, necessitating courtroom sharing and multiple moves by the judges and court staff.

The position of chief judge is assigned based on length of service, and is given to the judge in regular active service who is senior in commission of those judges who are (1) 64 years of age or under; (2) have served for one year or more as a judge; and (3) have not previously served as chief judge. The chief judge serves for a term of seven years and handles administrative matters related to the operation of the clerk’s office and the courthouse that do not require the attention of all the judges. The chief judge carries a full caseload in addition to these administrative duties and does not receive any additional pay.

Posted by Marcia Oddi on November 28, 2016 09:28 AM
Posted to Ind Fed D.Ct. Decisions

Ind. Gov't. - "Coal's future remains cloudy"

That is the headline to a Terre Haute Trib-Star editorial from Nov. 22nd. A few quotes:

In rural areas of southwestern Indiana, including nearby Sullivan and Greene counties, it was not uncommon in the months before the recent presidential election to see signs that simply stated, “Trump Digs Coal.”
Such messages signified support for candidate Donald Trump, who promised during his campaign to revitalize the coal industry by peeling back environmental regulations and put miners back to work.

As is the case with campaign promises from any source, promises don’t always reflect reality. If coal miners who have seen good-paying jobs wither away in recent years are counting on a big resurgence of activity in the coal fields during Trump’s upcoming term, they may find themselves sorely disappointed.

Kery Murakami, CNHI’s Washington reporter, explained the situation in a story that appeared on the front page of Monday’s Tribune-Star [Here is the story in the EagleTribune]. He wrote that while tighter environmental regulations have squeezed the coal market and made the fossil fuel less competitive, other energy market forces also play a major role, and the friendlier policies of a Trump administration won’t necessarily turn coal into a boom industry.

Meanwhile, earlier this month (Nov. 13th) the WSJ had a long, worth reading, $$ story by Rebecca Smith headed "Cheap Gas Tests Trump’s Promise to Revive Coal: U.S. utilities already have retired hundreds of coal-burning power plants." A few quotes:
Donald Trump campaigned on a promise to resurrect the ailing U.S. coal industry and put miners back to work. Delivering on that vow could prove nearly impossible.

Electric utilities that buy more than 95% of the coal mined in America have already retired hundreds of their coal-burning power plants from Colorado to Connecticut—amounting to about a third of the total capacity—and have plans to mothball even more.

While in Appalachia earlier this year, Mr. Trump pledged to “bring the coal industry back, 100%” by rolling back environmental regulations. But coal’s biggest problem is that it is no longer the cheapest fossil fuel around. It is being displaced by natural gas.

American Electric Power Co. of Columbus, Ohio, one of the nation’s biggest utility companies, has sold or retired half its fleet of coal-burning power plants in recent years. No matter who occupies the White House, “it’s not coming back,” said Nick Akins, AEP’s chief executive. * * *

To understand what the coal industry is up against, consider one of the newest coal units in the U.S.: Duke Energy Corp.’s power plant in Mooresboro, N.C. Built in 2012, the plant already needs modernization it so it can compete amid rapidly changing market conditions. Duke is adding equipment so the plant can run on coal or gas, depending on which can produce electricity more cheaply at any given time.

The percentage of electricity Duke generates by burning coal has steadily dropped from 58% in 2005 to 35% in 2015, mirroring a nationwide trend. The company closed 40 coal plants in the last five years and expects its coal-fired power generation to keep dropping until it stabilizes at 23% in 2030.

Posted by Marcia Oddi on November 28, 2016 09:17 AM
Posted to Environment | Indiana Government | Indiana economic development

Ind. Courts - "Gary native on Indiana Supreme Court soon could step down"

That is the headline to Dan Carden's story this weekend in the NWI Times. The story begins:

The sole African-American justice serving on the Indiana Supreme Court is likely to step down early next year.

The Times has learned that Justice Robert Rucker, a Gary native, has informally been advising lawyers and judges in the Region and across the state to be prepared to apply if they’ve ever considered joining Indiana’s five-member high court.

Rucker, who turns 70 on Jan. 19, has not officially announced any plans to resign the Supreme Court seat he’s held since 1999, and declined to comment for this story.

However, Chief Justice Loretta Rush recently acknowledged that she anticipates Rucker will choose to end his court service in 2017.

Posted by Marcia Oddi on November 28, 2016 09:11 AM
Posted to Indiana Courts

Courts - "SCOTUS vacancy dominates talk at national lawyers convention"

Long, fascinating story this weekend by Robert Barnes of the Washington Post on the recent Federalist Society’s national lawyers convention. A few quotes:

“We could have been here in mourning, in sackcloths and ashes, wondering what might become of the republic,” Sen. Ted Cruz (R-Tex.) told a packed ballroom. Instead, the attendees found themselves with a “historic opportunity” and, as he noted, circulated through the Mayflower Hotel with “résumés in your pockets.”

“This gathering may well be the single largest collection of individuals who are likely to serve in the new administration,” continued Cruz, a Federalist Society favorite. “If you look down the aisle at your friends and neighbors and colleagues, I have great confidence that we are collectively looking at scores of federal judges,” as well as Justice Department lawyers and future officials of every federal agency.

But it was the opening on the Supreme Court that dominated the event. * * *

Cruz is not on the list of 21 people from which Trump has said — repeatedly — he will make his choice. “Only from that list I’m going to pick, only,” Trump said recently. “We’re not going outside that list.” * * *

Instead, the list is composed of federal judges and state supreme court justices from around the country. A solid number of them clerked for Scalia or another of the Supreme Court’s current conservatives, raising the possibility that a former clerk would for the first time sit with the justice for whom he or she once worked.

Who is on the shortlist? Who knows. But two names must be elevated, if for no other reason than Trump himself has mentioned them.

“We could have a Diane Sykes, or you could have a Bill Pryor, we have some fantastic people,” Trump said shortly after Scalia died, naming the kinds of judges a Republican president could nominate. * * *

Sykes is a judge on the U.S. Court of Appeals for the 7th Circuit and a former justice on the Wisconsin Supreme Court. She, too, is a Federalist Society favorite, chosen a couple of years ago to interview Thomas at the group’s gala dinner.

Sykes would bring something to the court missing since the departure of Justice Sandra Day O’Connor: She has run for elected office. And she has a solidly conservative voting record, with a requisite defense of gun rights.

One drawback is that she would be 59 at the time of her nomination, and conservatives generally like their nominees to be younger. On the other hand, Justice Ruth Bader Ginsburg was 60 when confirmed, and she has served 23 years and counting.

Posted by Marcia Oddi on November 28, 2016 09:02 AM
Posted to Courts in general | Ind. (7th Cir.) Decisions

Catch-up: What did you miss over the Thanksgiving weekend from the ILB?

From Friday, November 25, 2016:

Posted by Marcia Oddi on November 28, 2016 08:56 AM
Posted to Catch-up

Ind. Decisions - Upcoming oral arguments this week and next

This week's oral arguments before the Supreme Court (week of 11/28/16):

Thursday, December 1

  • 9:00 AM - Keyaunna Hurley v. State of Indiana (49A05-1601-CR-108) After being stopped for a traffic violation, Keyaunna Hurley submitted to a chemical breath test. Hurley’s attempted blows into the test machine produced the result “insufficient sample,” and the officer administering the test determined Hurley was not cooperating and had refused to complete the test. After a hearing, the Marion Superior Court agreed. The Court of Appeals affirmed, rejecting Hurley’s argument that the Indiana Administrative Code required the officer to administer a second breath test before a refusal could be found. Hurley v. State, 56 N.E.3d 127 (Ind. Ct. App., 6/30/2016). Hurley has petitioned the Supreme Court to accept jurisdiction over the appeal.

  • 9:45 AM - State of Indiana v. Wallace Irvin Smith, III (45S05-1611-CR-00572) In 2000, Wallace Smith pleaded guilty in Lake Superior Court to Class D felony theft and agreed not to ask that his felony be reduced to a misdemeanor. In 2015, after serving his sentence and completing probation, Wallace filed a motion in the trial court seeking misdemeanor treatment. The court granted Wallace’s petition, and the Court of Appeals affirmed. State v. Smith, 58 N.E.3d 224 (Ind. Ct. App. 8/2/2016), vacated. The Supreme Court has granted a petition to transfer the case and has assumed jurisdiction over the appeal.

  • 10:30 AM - Michael Ryan v. TCI Architects/Engineers/Contractos, Inc., et al. (49A02-1508-CT-01198) Michael Ryan, an employee of a subcontractor, was injured on the job and sued TCI, the general contractor on the construction project. The Marion Superior Court entered summary judgment for TCI. A majority of the Court of Appeals affirmed, concluding the contract between TCI and the owner, which was comprised of standard forms of the Design Build Institute of America, did not impose a duty of care on TCI for the safety of Ryan. Ryan v. TCI Architects/Engineers/Contractors, Inc., et al., 55 N.E.3d 340 (Ind. Ct. App. 5/23/2016). Ryan has petitioned the Supreme Court to accept jurisdiction over the appeal.

Next week's oral arguments before the Supreme Court (week of 12/5/16):

Thursday, December 8

  • 9:00 AM - Marcus Zanders v. State of Indiana (15S01-1611-CR-00571) A Dearborn County jury convicted Marcus Zanders of robbery and unlawful possession of a firearm. A majority of the Court of Appeals reversed his convictions, concluding the warrantless seizure of historical location data compiled by Zanders’ cellular network provider violated his Fourth Amendment rights. Zanders v. State, 58 N.E.3d 254 (Ind. Ct. App. 2016), vacated. The Supreme Court has granted a petition to transfer the case and has assumed jurisdiction over the appeal.

    ILB: This was this was an Aug. 4, 2016, 2-1 COA opinion (3rd case). See news coverage here ("Police must get warrant for cell phone location data") and here ("Ind. Court Says Warrant Needed to Get Cell Tower Data").

Webcasts of Supreme Court oral arguments are available here.




This week's oral arguments before the Court of Appeals (week of 11/28/16):

Wednesday, November 30
  • 1:30 PM - Celadon Trucking v. Wilmoth et al. (49A04-1512-PL-02104) In this class action lawsuit, Celadon Trucking Services is appealing the trial court’s grant of summary judgment in favor of a class consisting of independent contractor truck drivers. The drivers alleged that Celadon breached standardized contracts with them related to deductions Celadon made from the drivers’ compensation for fuel purchases the drivers made using a Celadon-issued Comdata card at Pilot Flying J truck stops. When making the fuel purchases, the drivers were required to pay the price displayed on the pump, and Celadon used the pump price when calculating the amount to be deducted from the drivers’ compensation for fuel purchases. However, when reimbursing Pilot Flying J for the Comdata card purchases, Celadon paid it less than the pump price. The drivers’ lawsuit sought to recover the difference between the pump price amount for fuel that was deducted from their compensation and the price that Celadon actually paid to Pilot Flying J for those purchases. The trial court agreed with the drivers’ interpretation of their contracts with Celadon and awarded judgment of over $3.3 million in damages to the drivers, plus interest. On appeal, Celadon contends that the trial court’s interpretation of the contract was erroneous. Alternatively, it contends that the contract is ambiguous and the ambiguity must be resolved at trial by a fact finder. The Scheduled Panel Members are: Judges Riley, Bailey and Barnes. [Where: Court of Appeals Courtroom (WEBCAST)]

Next week's oral arguments before the Court of Appeals (week of 12/5/16):

Tuesday, December 6
  • 1:00 PM - Michael Diaz v. State (71A03-1603-CR-629) Appellant-Defendant Michael Diaz was convicted of Level 4 felony burglary. Diaz challenges his conviction on appeal, arguing that the evidence is insufficient to sustain his conviction. In raising this argument, Diaz asserts that the evidence is insufficient to prove beyond a reasonable doubt that he broke and entered the dwelling of another with the intent to commit a felony. For its part, Appellee-Plaintiff the State of Indiana argues that the evidence is sufficient to sustain Diaz’s conviction for burglary. The Scheduled Panel Members are: Judges Baker, Robb and Bradford. [Where: Fountain Central High School, 750 US 136, Veedersburg, IN]
Wednesday, December 7
  • 1:00 PM - Rachel Neal v. IAB Financial Bank (02A03-1604-CT-01002) Rachel Neal was injured in a collision with a car driven by Gabriel Biddle. Before the collision employees of IAB Financial Bank helped Biddle, who they suspected was intoxicated, change a flat tire. Neal argued the bank gratuitously assumed a duty toward her when it helped an intoxicated driver return to the streets. The trial court entered summary judgment for the Bank on the ground it had no duty. The Scheduled Panel Members are: Judges May, Crone and Altice. [Where: Allen County Courthouse, Fort Wayne, IN]

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

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


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

Posted by Marcia Oddi on November 28, 2016 08:51 AM
Posted to Upcoming Oral Arguments

Friday, November 25, 2016

Courts - "Overtime Rule Is but the Latest Obama Initiative to End in Texas Court"

That is the headline to this Nov. 23rd NYT story by Noam Scheiber and Barry Meier. Some quotes [ILB emphasis]:

President-elect Donald J. Trump promised to undo many of the Obama administration’s most ambitious regulations. But even before he takes office, federal courts in Texas are doing some of the work for him.

A federal judge’s injunction this week halted a Labor Department rule that would have made millions more Americans eligible for overtime pay.

Over the last two years, Federal District Court judges in the state have chipped away at Mr. Obama’s legacy by striking down or suspending no fewer than five regulations, executive orders or actions, and guidelines, including an action that would have allowed illegal immigrants who are parents of United States citizens to remain in the country, and guidance that would have expanded restroom access for transgender students. * * *

The injunction in the overtime case, issued on Tuesday by a judge nominated by Mr. Obama, has many advocates and legal experts concerned.

It’s a troubling trend because it’s essentially delegating policy oversight to a set of handpicked judges in the South, who can pick and choose which regulations move forward and which do not,” said Matthew Wessler, a principal at the firm Gupta Wessler who has argued multiple cases involving workers before the Supreme Court. * * *

In an interview, the Nevada attorney general, Adam Paul Laxalt, whose state was the lead plaintiff in the case against the overtime rule, said that the coalition of states it led had elected to file in the Eastern District of Texas because the district had a reputation for handing down rulings quickly.

“That was what is known as a fast docket,” Mr. Laxalt said. “The decision was made based on a bunch of variables, but we thought we may be able to get the quickest answer.” Citing the Dec. 1 effective date for the new regulation, he said, “We were really fighting the clock.” * * *

Texas has a rich culture of antigovernment litigation. In 2013, Greg Abbott, now the state’s governor and then its attorney general, jokingly described a typical workday as, “I go into the office, I sue the federal government and I go home.” He bragged that he had sued the Obama administration 25 times in the previous four years.

While federal judges in Texas are officially appointed by the president, not state officials, Senate custom gives the state’s two United States senators considerable influence over the nominations.

“The judges that do manage to get nominated have to somehow pass through the gauntlet of Ted Cruz and John Cornyn,” said Richard Levy, the secretary-treasurer of the state A.F.L.-C.I.O. who served as its legal director for more than 20 years. “It has skewed the bench here in a way I don’t think is probably likely in other places.” * * *

Considered alongside the recent pattern of decisions by Texas judges, however, the ruling might have been foreseen.

Last month, Judge Marcia A. Crone of the Eastern District of Texas ruled against most of an Obama administration directive that required companies to disclose labor violations before they could receive a federal contract worth more than $500,000, a policy that had inflamed the business community.

Last week, Judge Sam R. Cummings of the Northern District of Texas, permanently blocked an administration rule that would have required employers to disclose relationships with consultants they hire to dissuade workers from unionizing.

In perhaps the biggest judicial setback to the president’s executive actions and regulations before the overtime decision, a split Supreme Court decision in June left in place a 2015 ruling by Judge Andrew S. Hanen of the Southern District of Texas that shut down the administration program intended to grant leniency to immigrants in the country illegally with children who are citizens or lawful permanent residents.

President Obama had pointed to the program, which was meant to protect millions of undocumented immigrants from deportation, as one of his major achievements.

Mr. Wessler, the Supreme Court lawyer, marveled at how unprecedented the recent developments have been.

“Using nationwide injunctions coupled with the kind of blatant forum shopping here is not something that we’ve really seen before in the modern age,” he said.

More: Per an @OrinKerr tweet, see this SSRN paper, whose abstract begins:
In several recent high-profile cases, federal district judges have issued injunctions that apply across the nation, controlling the defendants’ behavior with respect to non-parties. This Article offers a new analysis of the scope of injunctions to restrain the enforcement of a federal statute or regulation. It makes two contributions.

Posted by Marcia Oddi on November 25, 2016 11:56 AM
Posted to Courts in general

Ind. Gov't. - More on "ACLU Challenges Bedford Sign Ordinance Limiting Political Expression"

Updating this ILB post from Nov. 1st, which included a link to the ACLU complaint, WBIW Bedford reported Nov. 24th:

The City of Bedford has entered into an agreement with an Indianapolis law firm to represent the city in its lawsuit over its new sign ordinance.

On October 31, The American Civil Liberties Union of Indiana challenged the ordinance. In the suit, the ACLU claims the ordinance, which was passed by Bedford City Council in September, violates the First and the 14th Amendments to the U.S. Constitution.

City attorney Greg Pittman said that after speaking with the city's insurance carrier, it was recommended the city retain Church Church Hittle and Antrim in Indianapolis. Attorney Liberty Roberts will handle the case at a rate of $275 per hour.

The ACLU filed the case on behalf of Bedford resident Samuel Shaw, who is seeking to stop the city from enforcing the sign ordinance. For years, Shaw has placed signs expressing his opinions in his yard on I Street. After passing the sign ordinance Shaw received a letter from the city's planning director informing him that he was in violation of the ordinance and that the "penalty for sign violations is $300 per day." He removed about 12 signs from his property.

The lawsuit against the City of Bedford claims the ordinance, passed by the Bedford City Council in September, violates the First and the Fourteenth Amendments to the U.S. Constitution. * * *

The city of Bedford prepared the following statement:

The City of Bedford Planning Commission began reviewing the city sign ordinance a few years ago. The sign ordinance was reviewed and revised by a special committee of the Planning Commission and subsequently passed by the Planning Commission. A public hearing was held prior to passage by the City Council on April 14, 2015.

On June 18, 2015 the United States Supreme Court ruled in the case of Reed vs. Town of Gilbert that sign ordinances implemented by many municipalities were null and void based on content restrictions. The citizens of Bedford were informed of this ruling and all sign enforcement ceased with the exception of setback rules and placement of signage on public right-of-way.

Subsequently, the special committee of the Planning Commission began working on a new sign ordinance to comply with the Supreme Court ruling. The result was Ordinance 15-2016 that was passed by the Bedford City Council in September 2016. The current sign ordinance specifies the size and number of signs allowed on residential and non-residential property but does not stipulate restrictions on content.

Elected officials of the City of Bedford took an oath to uphold the Constitution of the United States of America and the State of Indiana and are wholeheartedly committed to upholding their statutes. There is a lack of case studies in existence for local units of government to determine best practices for sign regulation implementation following the newest Supreme Court ruling. Accordingly, we look forward to addressing this matter and resolving it as quickly as possible.

Posted by Marcia Oddi on November 25, 2016 11:23 AM
Posted to Indiana Courts | Indiana Government

Ind. Court - "Editorial: It's not looking good for transparency"

From an editorial today in the Fort Wayne News-Sentinel [ILB emphasis]:

There is not much hope for advocates of government transparency in the Pence case. Earlier this year, the Indiana Supreme Court, in a case involving emails between legislators and lobbyists, ruled that under the Indiana Constitution’s separation of powers clause the judicial system can’t second-guess what another branch of government wants to do. So the legislature can call its emails “work product” not subject to the state’s public records laws. And the soon-to-be ex-governor can probably keep his email private, too.

Too bad. The courts are abandoning their duty to act as a checks-and-balances monitor of other branches of government. The public’s right — and need — to know will suffer. Knowing the state high court has the attitude it does, look for plenty of other officials at all levels of government to start shielding their emails from prying public eyes.

Public officials always want to keep what they’re doing a secret. That’s just the nature of politics. Even when nothing nefarious is going on, it is much easier to get the job done without that pesky public always watching over their shoulders. And as we are seeing, both in Washington and Indianapolis, technological advances will keep enabling the politicians to get better and better at avoiding public scrutiny.

The No. 1 rule when it comes to politicians and the public interest should be: The harder officials try to shield their communications, the more likely it is that they contain something we really need to know and the harder we should work to see them. It’s just too bad the courts have decided to sit out the battle. We could use a friend.

Posted by Marcia Oddi on November 25, 2016 11:00 AM
Posted to Indiana Courts | Indiana Government

Law - More on: Algorithms ... Is there a problem?

Supplementing this Oct. 18, 2016 ILB post, an article Nov. 17th in MIT Technology Review, titled "How to Hold Algorithms Accountable," begins:

Algorithms are now used throughout the public and private sectors, informing decisions on everything from education and employment to criminal justice. But despite the potential for efficiency gains, algorithms fed by big data can also amplify structural discrimination, produce errors that deny services to individuals, or even seduce an electorate into a false sense of security. Indeed, there is growing awareness that the public should be wary of the societal risks posed by over-reliance on these systems and work to hold themaccountable. * * *

Let’s consider one case where algorithmic accountability is sorely needed: the risk assessment scores that inform criminal-justice decisions in the U.S. legal system. These scores are calculated by asking a series of questions relating to things like the defendant’s age, criminal history, and other characteristics. The data are fed into an algorithm to calculate a score that can then be used in decisions about pretrial detention, probation, parole, or even sentencing. And these models are often trained using proprietary machine-learning algorithms and data about previous defendants.

Recent investigations show that risk assessment algorithms can be racially biased, generating scores that, when wrong, more often incorrectly classify black defendants as high risk. These results have generated considerable controversy. Given the literally life-altering nature of these algorithmic decisions, they should receive careful attention and be held accountable for negative consequences.

Posted by Marcia Oddi on November 25, 2016 10:50 AM
Posted to General Law Related

Wednesday, November 23, 2016

Ind. Courts - Still more on "Special judge appointed to Hammond City Court "

This ILB post from June 7th reported that, per the NWI Times, "Three candidates vie to be new Hammond City Court Judge." The story reported that the three were Nathan Foster, Amy Jorgensen and Diana Gonzalez, and that:

[T]he Indiana Supreme Court on April 26 appointed [Gerald P. Kray] to serve as temporary judge until a new judge is appointed by Gov. Mike Pence.
The ILB has seen no news release from the Gov's office on an appointment, but the two Region papers reported Nov. 21st that the Gov. has now made an appointment to fill the judicial vacancy. From the NWI Times:
CROWN POINT — Gov. Mike Pence named former business owner Amy Jorgensen the new Hammond City Court judge on Monday, a decision criticized by the city's mayor.

Jorgensen is the former owner and operator of seven Sylvan Learning Centers in Northwest Indiana and Chicago, according to a resume she provided The Times of Northwest Indiana.

Jorgensen said Monday in an email she sold her remaining interest in the tutoring centers in December 2015, but she remains a consultant for the new owners.

In January, Jorgensen was appointed chairwoman of the St. John Republican Party, but she said Monday she resigned from that position.

Jorgensen obtained a law degree from the Valparaiso University School of Law in 1998, the resume states. * * *

Hammond Mayor Thomas McDermott Jr., a Democrat, criticized the governor Monday for choosing a nonresident of the city to serve as its judge. He also said Jorgensen lacked the law experience necessary to preside over the city's busy court.

“She will get very little respect from me as mayor,” McDermott said in an interview. “This is a carpetbagger coming in to run our City Court and hundreds of thousands of dollars.” * * *

Jorgensen's resume indicates she has had little, if any, professional law experience, but her law license remains active, state records indicate.

She did not respond directly to questions about her law experience, but said Pence reviewed her application and declared she would make an "excellent judge," which should satisfy the mayor.

Jorgensen admitted she was not a current resident of Hammond, but said it was not a requirement for a gubernatorial appointee. However, she said she executed a lease for a Hammond residence last Friday, and she was also seeking to purchase a home.

The Gary Post-Tribune story is headed: "City Judge appointment riles McDermott." The long story begins:
Judicial appointment Vice President-elect Gov. Mike Pence made Monday has Hammond Mayor Tom McDermott Jr. seeing red.

St. John Republican Party Chairman Amy Jorgensen was sworn in as Hammond City Court judge Monday morning, according to a release from Pence spokeswoman Kara Brooks.

Jorgensen, 46, replaces Judge Gerald Kray, who was appointed Hammond City Court Judge by the Indiana Supreme Court after Judge Jeffrey Harkin's death in April.

"Amy Jorgensen possesses the intellect and temperament to make an excellent judge," Pence said in the release. "I am confident that she will serve the community of Hammond with distinction, and I thank her for stepping forward in this capacity."

McDermott said Monday that Jorgensen's appointment was "news to him," as he found out through social media.

"It's such a joke," McDermott said. "Judge Kray didn't even get a call that this was happening."

McDermott said what concerns him most, however, is that Jorgensen has said previously that she has "never used her law degree" from Valparaiso University School of Law.

"She admits she's never practiced law, and she's going to be a judge? This is unprofessional cronyism, and I have no confidence in this appointment," McDermott said. "This lady ran Sylvan Learning Centers."

Posted by Marcia Oddi on November 23, 2016 03:19 PM
Posted to Indiana Courts

Ind. Decisions - Court of Appeals issues 3 opinion(s) today (and 9 NFP memorandum decision(s))

For publication opinions today (3):

In In the Matter of the Commitment of M.E. v. Department of Veterans Affairs , a 15-page opinion, Judge Baker writes:

The Veterans Affairs (VA) Hospital filed a petition to involuntarily commit M.E. by way of forcible medication after M.E. was brought there by local police. The trial court issued an Order of Regular Commitment, committing M.E. to the hospital until discharged, and granted an order to medicate M.E. unless he did not substantially benefit from the medications. M.E. now appeals his involuntary commitment. Finding that M.E. did not receive appropriate notice, that his waiver was invalid, and that the VA did not carry its burden of proof with respect to the elements of dangerousness and grave disability, we reverse and remand with instructions to vacate the order of involuntary commitment. * * *

M.E. makes three arguments on appeal: (1) the VA failed to serve M.E. with the documents it filed with the trial court; (2) the Waiver of Right to Be Present at Commitment Hearing signed by M.E. was invalid; and (3) the involuntary civil commitment was not warranted because the VA failed to establish that M.E. exhibited a grave disability or dangerousness to self. * * *

[I. Service of Pleadings]

Fair notice requires that individuals who may be civilly committed and their counsel receive the petitions and documents supporting the requests for civil commitment. We find, therefore, that the VA’s failure to serve these documents on M.E. and his counsel violated Trial Rule 5’s requirement that each party must be served with every pleading, including and subsequent to the original complaint, and that service must be made upon an attorney of a represented party. * * *

[II. Waiver]

Next, M.E. argues that the “Waiver of Right to be Present at Commitment Hearing” that the VA secured from him was invalid. We agree, finding that any waiver presented to and signed by an individual who has been involuntarily detained, and is alleged by the VA to be mentally ill, cannot be valid.

In supporting its argument that M.E.’s waiver was valid, the VA relies on the fact that the waiver involved in this case was an express, written waiver, and that M.E.’s experience with commitment orders and the mental health unit of NIHCS over the course of fifteen years indicates that M.E. understood the waiver that he signed. This argument is unfathomable. * * *

[A]n individual cannot be considered so mentally ill that an emergency detention is ordered and a petition for regular commitment is filed but, simultaneously, competent enough that any waiver he may sign is validly obtained. Either an individual is competent, or he is not.

Accordingly, we hold that a waiver purporting to relinquish the rights of an involuntarily detained individual, or an individual at risk of being involuntarily committed, is not valid. * * *

[III. Sufficiency of the Evidence]

M.E. argues that there was no clear and convincing evidence of dangerousness to self or grave disability that warranted his involuntary civil commitment. * * *

A. Evidence of Dangerousness. An individual is “dangerous” when, as a result of mental illness, the individual presents a substantial risk that he will harm himself or others. * * *

Thus, the most specific evidence that Dr. Khan could provide about M.E.’s dangerousness merely amounted to unpleasant comments that M.E. made about white women. Such behavior does not constitute a substantial risk that M.E. will harm himself or others, nor does it support an involuntary commitment.

B. Evidence of Grave Disability. An individual is “gravely disabled” when, as a result of mental illness, the individual is in danger of coming to harm because he: 1) is unable to provide for his food, clothing, shelter, or other essential needs; or 2) has a substantial impairment or an obvious deterioration of his judgment, reasoning, or behavior that results in his inability to function independently. I.C. § 12-7-2-96. * * *

We agree with M.E. that there is no clear and convincing evidence to establish a grave disability. The government did not offer any evidence that M.E. is unable to provide for his food, clothing, shelter, or other essential needs, nor did it offer evidence that M.E. suffered from a substantial impairment or obvious deterioration that affected his judgment or made him unable to function independently. In fact, the physician who completed the Physician’s Statement referenced by the Petition for Regular Commitment did not even check the box to indicate that M.E. was suffering from grave disability. Moreover, the VA’s reliance on M.E.’s past behavior ignores the fact that the statutory language looks to the patient’s behavior at the time of the hearings, not to his history. M.E.’s aggression, paranoia, and confrontational attitude do not establish an inability to function independently under the law.

The judgment of the trial court is reversed and remanded with instructions to vacate the order of involuntary commitment.

In Kathy Salyer v. Washington Regular Baptist Church Cemetery v. Kristy Sams , a 10-page opinion, Judge Brown writes:
Kathy Salyer appeals from the May 13, 2016 order of the small claims court on her complaint requesting the return of a burial space she had purchased. We reverse and remand. * * *

Salyer maintains that, because the Cemetery wrongfully buried Johnson at her gravesite, it must relocate Johnson’s body so that the site can be restored to her. She notes that the legislature directed the course of action for a wrongful burial and cites to Ind. Code § 23-14-59-2. * * *

Giving effect to the language of both statutes, in the event a wrongful burial occurs and a cemetery fails to correct it as required by Ind. Code § 23-14-59-2, a court may order the cemetery to perform its duty under the statute but may not find the cemetery liable for damages. Based on Ind. Code § 23-14-59-1, the court in this case erred in finding the cemetery liable for damages.

In addition, an order that a cemetery perform its duty under Ind. Code § 23-14- 59-2 constitutes an order for specific performance or injunctive relief, and the small claims court’s order that Salyer receive “the adjacent burial site just south of her burial site,” Appellant’s Appendix at 6, also constitutes an order for injunctive relief. However, Salyer’s claim was filed and docketed on the small claims docket of the Ripley County Superior Court. The jurisdiction of a small claims court is limited to that granted by the Constitution or by statute. * * *

Moreover, the small claims court does not have jurisdiction to exercise equitable powers such as ordering specific performance or injunctive relief apart from the statute. * * *

Accordingly, the small claims court did not have jurisdiction to grant injunctive relief either in ordering that Salyer receive “the adjacent burial site just south of her burial site,” Appellant’s Appendix at 6, or to order that Johnson’s body be removed from Gravesite #15. * * *

Conclusion. For the foregoing reasons, we find the small claims court erred in finding the Cemetery liable for damages, and that it did not have jurisdiction to enter an order for specific performance or injunctive relief. We therefore reverse the court’s order and remand for consideration of transfer to the court’s plenary docket.

In Benjamin Sheetz v. Ronnie Sheetz, a 29-page, 2-1 opinion, Chief Judge Vaidik writes:
While Benjamin Sheetz (“Husband”) and Ronnie Sheetz (“Wife”) were married and Husband was in prison, Wife got pregnant by another man. Nevertheless, Husband agreed to raise the child as his own and did so for twelve years. He also told Wife not to contact the biological father, not to seek support from him, and not to institute paternity proceedings. Wife later filed for divorce, and at the final hearing, the parties entered into evidence a stipulation that although the child was born during the marriage, Husband is not the child’s biological father. The trial court nonetheless ordered Husband to pay support for the child, and Husband now appeals.

Under these circumstances where Husband told Wife when she was pregnant that he would raise the child as his own (and he did so for twelve years), Husband told Wife not to tell the biological father, not to seek support from him, and not to file a paternity action, and Wife relied on Husband’s representations in not establishing paternity in the biological father, we find that Husband is equitably estopped from rebutting the presumption that he is the child’s biological father. We therefore affirm the trial court. * * *

Baker, J., concurs.
Najam, J., dissents with separate opinion. [that begins at p. 14]

I respectfully dissent. The majority opinion that “Husband is equitably estopped” from claiming that G.B.S. is not a child of the marriage is contrary to law. See Slip op. at 9. The Dissolution of Marriage Act as well as precedent of the Indiana Supreme Court and this court have established that a child support order in a dissolution of marriage can be entered only for a child of both parties to the marriage. Indiana does not recognize equitable estoppel, adoption by estoppel, or in loco parentis as grounds for a child support order. That is, there is no equitable paternity in Indiana. The dissolution court erred when it ordered Husband to pay child support for a child who is neither his biological child nor Court of Appeals of Indiana | Opinion 01A05-1601-DR-80 | November 23, 2016 Page 15 of 29 his adopted child and who is, therefore, not a child of both parties to the marriage. * * *

This court’s equity jurisdiction is not a license to disregard the unmistakable and unambiguous intent of our legislature and the plain meaning of a “child or children of both parties to the marriage.” In effect, the majority has redefined a defined term and usurped a policy question that belongs to the legislature. See In re Snow, 862 N.E.2d at 668; Russell, 682 N.E.2d at 516-17. Indeed, the legislature has already rejected equitable paternity. See I.C. § 31-14-7-2. The question presented has also been considered and decided by both our supreme court and this court in numerous cases, both under the Dissolution of Marriage Act and under prior law going back at least seven decades. See, e.g., Pilgrim, 75 N.E.2d at 162. Neither our legislature nor our courts have recognized adoption by estoppel or paternity by in loco parentis. The majority opinion is contrary to Indiana Supreme Court precedent in Hight, Russell, and In re Snow and is a radical departure from our well-settled family law.

Paternity and a duty to pay child support are indivisible. In Indiana, a man’s paternity is a condition precedent to a child support order against him. The majority opinion is contrary to law. The child in this case is not a child of both parties to the marriage. Husband and other Indiana husbands similarly situated have a reliance interest in the certainty afforded by the plain meaning of the statute and well-settled precedent. If the majority opinion stands, it will not only reverse decades of precedent but will also introduce uncertainty into child support determinations. In order to avoid the risk of an “equitable” child support order, a husband who knows or suspects that his wife’s child is not his child but is the child of another man will now be encouraged, if not compelled, to disavow paternity as soon as possible and rupture the marriage rather than to keep the marriage and family intact.

NFP civil decisions today (4):

In the Matter of: C.K., a Child Alleged to be in Need of Services, F.R. (Mother) and B.K. (Father) v. The Indiana Department of Child Services (mem. dec.)

Rosina Keller v. Gretchen Cheesman, as Administrator of the City of Muncie Unsafe Building Hearing Authority, and the City of Muncie (mem. dec.)

In Re the Visitation of: K.W. and A.W. (Minors), E.B. v. J.W. (mem. dec.)

In re the Adoption of S.M.M., T.M.S. v. K.L.M. (mem. dec.)

NFP criminal decisions today (5):

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

Wilma Beatrice Allen v. State of Indiana (mem. dec.)

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

Michael W.L. Deweese v. State of Indiana (mem. dec.)

Ventura S. Sanchez v. State of Indiana (mem. dec.)

Posted by Marcia Oddi on November 23, 2016 11:04 AM
Posted to Ind. App.Ct. Decisions

Ind. Gov't. - AG-Elect Curtis Hill apoints another prosecutor to be Deputy AG

Updating this ILB post from Nov. 17th, the Lawrenceberg JournalPress reports:

Dearborn and Ohio County Prosecutor Aaron Negangard announced during the Dearborn County Council meeting Tuesday night, Nov. 22, that he will be leaving his position as county prosecutor to serve as chief deputy for state attorney general-elect Curtis Hill starting Monday, Jan. 9.

Republican Hill was elected as the new attorney general during the Tuesday, Nov. 8, general election over Democrat Lorenzo Arredondo. Hill served as prosecutor for Elkhart County.

Negangard was originally appointed county prosecutor in 2006, when then-prosecutor Sally Blankenship was appointed by past Gov. Mitch Daniels to serve as judge for the newly-created Dearborn County Superior Court No. 2. He was elected to the postion later that same year. He served as a deputy prosecutor and chief deputy prosecutor since 1997. He was last elected in 2014.

Posted by Marcia Oddi on November 23, 2016 10:21 AM
Posted to Indiana Government

Tuesday, November 22, 2016

Ind. Decisions - U.S. Steel agrees to resolve Clean Air Act litigation initiated by the United States and Indiana, Illinois and Michigan

A news release issued this afernoon begins:

WASHINGTON – The United States, together with the states of Indiana and Illinois and the Michigan Department of Environmental Quality, announced today that U. S. Steel Corporation (U. S. Steel) has agreed to resolve Clean Air Act litigation initiated by the United States and the three states in August 2012, by undertaking measures to reduce pollution at its three Midwest iron and steel manufacturing plants in Gary, Indiana; Ecorse, Michigan; and Granite City, Illinois. As part of the agreement, U. S. Steel will perform seven supplemental environmental projects totaling $1.9 million, to protect human health and the environment in the communities affected by U. S. Steel’s pollution, including a project to remove lighting fixtures containing toxic chemicals in public schools. In addition, U. S. Steel will expend $800,000 for an environmentally beneficial project to remove contaminated transformers at its Gary and Ecorse facilities and pay a $2.2 million civil penalty. The agreement is memorialized in a consent decree lodged today in federal district court in the Northern District of Indiana. * * *

Today’s settlement, lodged with the U.S. District Court for the Northern District of Indiana, is subject to a 30-day public comment period following notification in the Federal Register and final approval by the court. To view the consent decree or to submit a comment, visit the department’s website: www.justice.gov/enrd/Consent_Decrees.html.

Posted by Marcia Oddi on November 22, 2016 04:26 PM
Posted to Environment | Ind Fed D.Ct. Decisions

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

For publication opinions today (2):

In C.V. v. C.R. , a 9-page opinion, Judge Pyle writes:

C.V. appeals the trial court’s issuance of a protective order against him in favor of C.R. He argues that the trial court erred because C.R. did not produce sufficient evidence that he stalked her and, therefore, that a protective order was warranted. We agree and reverse the trial court’s decision. We remand with instructions to vacate the protective order against C.V. * * *

Based on our decision in Maurer, we conclude that C.R. did not produce sufficient evidence that C.V.’s contact with her constituted stalking. Although her testimony regarding the number of times C.V. contacted her was not vague, it is clear that his contact with her was relatively insignificant. He left notes on her car on four occasions, and an interval of seven months passed between two of the notes. C.V.’s contact can hardly be considered frequent. More significantly, though, as in Maurer, C.R. did not produce any evidence that she asked C.V. to stop sending her the notes or that he persisted after she asked him to stop. To the contrary, Officer Trama testified that C.V. did not send any notes once he contacted him and asked him to stop. * * *

[B]ecause there was no evidence that the contents of the notes were threatening, we cannot conclude that there was sufficient evidence that a reasonable person would have felt terrorized, frightened, intimidated, or threatened by C.V.’s acts under these circumstances. Accordingly, we conclude that C.V. has presented a prima facie case that C.R. did not produce sufficient evidence that C.V. stalked her. As a result, we reverse the trial court and remand with instructions for the trial court to vacate the protective order.

In Wendell Brown a/k/a Menes Ankh El v. State of Indiana , a 30-page opinion, Judge Riley writes:

Appellant-Defendant, Wendell Brown, now known as Menes Ankh-El1 (AnkhEl), appeals his conviction for burglary, a Class C felony, Ind. Code § 35-43-2-1 (2011); forgery, a Class C felony, I.C. § 35-43-5-2(b) (2011); and driving while suspended, a Class A misdemeanor, I.C. § 9-24-19-2 (2012). [2] We affirm. ISSUES [3] Ankh-El raises five issues on appeal, which we restate as follows: (1) Whether the trial court had subject matter jurisdiction over this case; (2) Whether the trial court denied Ankh-El the right to counsel in violation of the Sixth Amendment to the United States Constitution; (3) Whether the State presented sufficient evidence to support Ankh-El’s conviction for burglary, forgery, and driving while suspended beyond a reasonable doubt; (4) Whether the charging Information was defective; and (5) Whether the trial court committed fundamental error by exhibiting prejudice. * * *

When Forcum exited his vehicle, one of the men on the balcony—Ankh-El— inquired into Forcum’s presence. Forcum explained that he is a real estate broker, and, in response, Ankh-El identified himself as the new owner of the Property. Knowing this could not be the case given his exclusive listing rights, Forcum returned to his vehicle and drove away from the Property while calling the Indianapolis Metropolitan Police Department (IMPD).

Forcum waited at the end of the long driveway until IMPD officers arrived. Forcum apprised the officers of his concern that there was an individual squatting on the Property, and he provided the officers with his credentials and a copy of the listing agreement which identified him as the agent responsible for selling the Property. Thereafter, the officers proceeded down the driveway and observed Ankh-El and another male standing outside. The officers identified themselves and explained the nature of their visit. Ankh-El informed the officers that he had recently purchased the property for $250,000, and he acted perplexed as to why there would be any indication that the Property was still listed for sale. When asked for proof of his ownership, Ankh-El stated that he had such documentation at another location, so he locked the doors to the house and drove away from the Property while the officers and Forcum waited for him to return. During Ankh-El’s absence, one of the officers contacted the Marion County Assessor’s Office, which reported that the current owner of record for the Property was Bank of New York Mellon. A short while later, Ankh-El drove up to the Property on a black Yamaha motorcycle. Ankh-El provided the officers with an identification card with his name and photograph, which identified him as a “Moorish National” and listed his birthplace as Marion County, Indiana. (State’s Exh. 13). Ankh-El admitted that he had created the identification card himself and explained some of the history of the Moorish people; specifically, he “talked about [how] the laws of [the] land [do not] apply to Moorish Nationals.” (Tr. p. 216).

In addition, Ankh-El tendered a document to the officers entitled “FREEHOLD IN DEED.” (State’s Exh. 1). According to Ankh-El, this deed, which he had also created himself, evidenced his ownership rights in the Property. * * *

Based on the foregoing, we conclude that the trial court had subject matter jurisdiction over this case; the trial court did not violate Ankh-El’s Sixth Amendment right to counsel; the State presented sufficient evidence to support Ankh-El’s conviction for burglary, forgery, and driving while suspended beyond a reasonable doubt; the charging Information was not defective; and the trial court did not commit fundamental error

NFP civil decisions today (2):

In re the Paternity of E.E., J.E. v. T.C. (mem. dec.)

Michelle Powell v. Timothy Powell (mem. dec.)

NFP criminal decisions today (10):

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

State of Indiana v. Terrence L. Hawkins (mem. dec.)

State of Indiana v. Kenneth R. Trisler (mem. dec.)

William W. Bunner v. State of Indiana (mem. dec.)

Anthony Stansbury v. State of Indiana (mem. dec.)

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

Demeko Bradley v. State of Indiana (mem. dec.)

Brian Burns v. State of Indiana (mem. dec.)

Brent D. Mullis v. State of Indiana (mem. dec.)

Tonya R. Crump v. State of Indiana (mem. dec.)

Posted by Marcia Oddi on November 22, 2016 11:15 AM
Posted to Ind. App.Ct. Decisions

Ind. Courts - "Pence, who touts openness, tries to stop document release"

That is the headline to Brian Slodysko's AP coverage yesterday of the oral argument in William Groth v. Mike Pence (for background, start with this LB post from yesterday). Some quotes:

Lawyers for Indiana Governor and Republican Vice President-elect Mike Pence argued in court Monday that the state's judicial branch has no authority to require him to comply with Indiana's public records law.

The civil case before Indiana's Court of Appeals was brought by Indianapolis attorney William Groth, who sued in 2015 after the Pence administration denied a request for un-redacted records, including a document related to Republican efforts to stop President Barack Obama's immigration executive order. * * *

On Monday, Pence attorney Joseph Chapelle told the judges that the separation of powers established under the state's constitution should prevent the court system from forcing Pence and his immediate staff to comply with the open records law if they are sued.

"Inquiry into the personal papers of the governor would (interfere) with the affairs with of the governor's office," Chapelle said. "He's different than other state agencies."

The appellate court took up the case after a lower court ruled that Pence did not have to turn over emails, billing invoices or a document authored by the chief-of-staff to now-Texas Gov. Greg Abbott. The documents, sought by Groth, outlined legal arguments for the GOP's successful challenge to Obama's immigration executive order. * * *

The state's highest court ruled in April that that it could not order the Legislature to release lawmakers' email correspondence because it would violate the state constitution's separation of powers between the legislative and judicial branches of government. * * *

A ruling in the case against Pence is not expected immediately. But government watchdog groups say that if the courts ultimately agree with Pence's interpretation, the Indiana governor's office would police itself when it comes to the release of public records, seriously weakening the law by limiting the ability to sue for records.

Fatima Hussein of the Indianapolis Star writes:
Regarding the nonjusticiability doctrine, the judges strongly challenged Pence's legal team on how previous case law would apply.

Pence's team cited the Indiana Supreme Court ruling in Citizens Action Coalition, et al. v. Indiana House Rep., which determined the legislature's redactions were nonjusticiable under the Indiana Constitution’s separation of powers clause. Groth was also the attorney representing the plaintiffs in that case.

Judge Najam said that decision applied only to the legislature and not the executive branch of state government.

Drawing a distinction between the legislative role of government and the executive branch, Najam asked, "Isn't that the whole purpose of APRA, to see who is soliciting our governor?"

Added Vaidik: "What is the point of APRA then?"

Posted by Marcia Oddi on November 22, 2016 09:34 AM
Posted to Indiana Courts