Thursday, June 30, 2016
Ind. Decisions - More on: Federal court upholds e-liquids statute challenge. Two week injunction just issued by 2nd federal judge
Earlier today Judge Barker in Legato Vapors v. Cook ruled in favor of the State of Indiana in a challenge to the e-liquids statute.
Now Judge Young, in Goodcat v. Cook, grants a temporary restraining order:
The court first takes notice of a related case, Legato Vapors LLC v. Cook, No. 1:15-cv-00761-SEB-TAB (S.D. Ind.), recently before the court. In that case, Judge Barker granted summary judgment in favor of the State, concluding that § 7.1-7-1 et seq. did not violate the Dormant Commerce Clause, the Due Process Clause, the Equal Protection Clause, or the Indiana Constitution. See Filing No. 107 at 39, Legato Vapors LLC, No. 1:15-cv-00761-SEB-TAB. Goodcat, however, raises at least two issues that were not before the court in Legato Vapors: (1) whether the effect of the provisions governing the use of a third-party security firm amounts to unconstitutional discrimination against out-of-state manufacturers, in violation of the Dormant Commerce Clause; and (2) whether Section 916 of the Federal Food, Drug, and Cosmetic Act (“FDCA”), codified at 21 U.S.C. § 387p, will preempt the security firm requirements as of August 8, 2016, the effective date for the FDA’s so-called “Deeming Rule.” * * *
The court hereby ENJOINS Defendants from enforcing the statutory deadline, Indiana Code § 7.1-7-4-1(b), as against Goodcat for a period not to exceed FOURTEEN (14) DAYS from the date of this Order. The court further ORDERS the ATC to issue Goodcat a provisional manufacturing permit so that it may continue participating in the Indiana market for e-vapor products without the risk of third-party liability. This Order is set to EXPIRE on July 14, 2016.
To justify such relief, the court makes preliminarily findings based on the extremely limited time frame in which to consider this matter.
Ind. Decisions - "Judge strikes down Indiana abortion law"; What of other states?
That is the headline to Niki Kelly's story on today's ruling in the Fort Wayne Journal Gazette.
"Indiana's new abortion law halted by judge" is the headline to Stephanie Wang's story in the Indianapolis Star.
Meanwhile, David A. Lieb of the AP has a lengthy survey story on "new laws on abortion set to take effect around the country." It begins:
New laws targeting abortion are set to take effect Friday in about one-fifth of the states, initiating another wave of restrictions just days after the U.S. Supreme Court struck down a Texas measure that led several clinics to close.
Some of the laws limit when and how the procedure can be performed. Others restrict what can be done with tissue from aborted fetuses. Still others seek to block abortion providers from getting government funding.
They are part of a raft of laws that are going on the books around the country with the start of the new fiscal year July 1.
Ind. Decisions - ACLU of Indiana news release on today's decision
Here is the ACLU of Indiana news release on today's decision in the Plaintiffs Planned Parenthood of Indiana and Kentucky cchallenge to Indiana's 2016 anti-abortion legislation:
A federal judge today granted Planned Parenthood's request for a preliminary injunction, blocking key features of an anti-abortion measure scheduled to go into effect July 1. The law would have imposed unprecedented, unconstitutional restrictions on women seeking abortions and their health care providers and was the strictest abortion law in the United States.
The American Civil Liberties Union of Indiana, national ACLU and national Planned Parenthood are representing Planned Parenthood of Indiana and Kentucky in this case.
ACLU of Indiana Legal Director Ken Falk said, "This law attempted to do exactly what Supreme Court precedent said could not be done: invade a woman's privacy rights by preventing her from deciding whether to obtain a pre-viability abortion. We are extremely pleased that Indiana's attempt to violate women's basic rights has been thwarted."
Federal Judge Tanya Walton Pratt enjoined the provisions of the statute that prohibited abortions solely because a woman sought an abortion for certain reasons. The judge also blocked the law's requirement that women be informed of these unconstitutional restrictions, and stopped separate provisions that required fetal tissue to be disposed of in the same manner as human remains.
In her ruling, Judge Pratt said, "The lack of authority supporting the State's position likely stems from the fact that it is contrary to the core legal rights on which a woman's right to choose to terminate her pregnancy prior to viability are predicated."
Indiana House Enrolled Act 1337 was signed into law by Governor Pence on March 24. In April the ACLU of Indiana on behalf of PPINK filed suit against the Indiana State Department of Health, prosecutors of several counties and the state medical licensing board asking the Court to block enforcement of the law, claiming it violated due process and equal protection under the Fourteenth Amendment as well as First Amendment rights of free speech.
"We are heartened that the courts, including the U.S. Supreme Court, are signaling that politicians can no longer hide behind sham rationales to prevent a woman from getting the care she needs. This legislation was never about discrimination. The ACLU stands firmly against discrimination in all forms," said Jane Henegar, ACLU of Indiana executive director. "The ACLU challenged this legislation because it exerts undue political influence into one of the most personal decisions a woman can make, whether and when to continue a pregnancy based upon what is best for herself and her family, a decision protected by the U.S. Constitution."
"This cruel law painted a grim picture for Indiana women with its blatant, unwelcome intrusion into private, independent decision making. HEA 1337 is a violation of the sacred doctor and patient relationship," said Betty Cockrum, President and CEO of PPINK. "Today's decision shows Gov. Mike Pence that he cannot force his religious ideology on Hoosiers. It is further compelling recognition by the courts that legislation interfering with women's reproductive rights will not be tolerated."
Ind. Decisions - (No longer) Waiting for federal district court ruling on abortion challenge ...
Judge Pratt has granted the preliminary injunction. Here is the 31-page opinion. From the opinion:
For the reasons that follow, PPINK is entitled to an injunction as to all of the challenged provisions. PPINK is likely to succeed on the merits of its challenge to the anti-discrimination provisions because they directly contravene the principle established in Roe v. Wade, 410 U.S. 113 (1973), that a state may not prohibit a woman from making the ultimate decision to have an abortion prior to fetal viability. Similarly, the information dissemination provision is likely unconstitutional as it requires abortion providers to convey almost certainly false information to their patients. In addition, PPINK faces irreparable harm of a significantly greater magnitude if these provisions are not enjoined than that faced by the State from an injunction.Earlier today: HEA 1337, the 2016 abortion law provisions, will go into effect tomorrow, July 1, unless enjoined before them. The challenge is in federal Judge Tanya Walton Pratt's court. Background here.
PPINK’s challenges to the fetal tissue disposition provisions present a much closer call and present difficult legal questions about which there are few clear answers. In the end, however, the Court concludes that the State’s asserted interest in treating fetal remains with the dignity of human remains is not legitimate given that the law does not recognize a fetus as a person. Therefore, PPINK has a strong likelihood of success on its substantive due process challenge to these provisions as well. Because the balance of harms also favors PPINK regarding this claim, PPINK has demonstrated that the Court should enjoin the fetal tissue disposition provisions pending resolution of this litigation.
Ind. Decisions - Federal district court rules today in complex rights of same-sex couples dispute
Updating these two earlier ILB posts:
Ind. Courts - Both SSM birth certificate cases now assigned to Judge PrattJudge Pratt this morning has issued this 32-page ruling in Henderson v. Adams. It begins:
The Allen/Phillipa-Stackman SSM birth certificate case has been reassigned today to federal Judge Tanya Walton-Pratt who has the other (Henderson) case. For background, see this ILB post from Dec. 8th....
Posted in The Indiana Law Blog on December 14, 2015 05:48 PM
From a long, front-page story today in the Indianapolis Star, reported by Stephanie Wang. Some quotes:Along with another Central Indiana couple, the Phillips-Stackmans filed a lawsuit Monday in the U.S. Southern District of Indiana in Indianapolis against the state and...
Posted in The Indiana Law Blog on December 8, 2015 09:04 AM
The disputes in this matter surround complex legal issues following the United States Supreme Court’s mandate that legally married same-sex couples in the United States are entitled to the same privileges and benefits as legally married heterosexual couples. The Plaintiffs in this case are female, same-sex married couples and their children whose birth certificates list only the birth mother as a parent with no second parent. The Plaintiffs seek injunctive relief to list both the birth mother and her same-sex spouse on their children’s birth certificates and to have their children recognized as children born in wedlock. They also seek declaratory judgment that Indiana Code §§ 31-9-2-15, 31-9-2-16, and 31-14-7-1 violate the Equal Protection Clause and Due Process Clause of the Fourteenth Amendment to the United States Constitution. The Defendants assert that Plaintiffs’ claims must fail because the challenged statutes impinge no fundamental rights and in any event are narrowly tailored to vindicate compelling state interests.
Ind. Decisions - Court of Appeals issues 4 opinion(s) today (and 23 NFP memorandum decision(s))
For publication opinions today (4):
In State of Indiana v. Megan J. Cassady , an 18-page, 2-1 opinion reversing the trial court’s grant of Megan Cassady’s motion to suppress evidence following a traffic stop and dog sniff [more coming]
In Eduardo Cruz-Salazar v. State of Indiana , a 13-page opinion, Judge Najam writes:
Eduardo Cruz-Salazar appeals his conviction for possession of cocaine, as a Class A misdemeanor, following a bench trial. He presents two issues for our review, which we consolidate and restate as whether the trial court abused its discretion when it admitted into evidence the cocaine a police officer found on his person after his arrest for public intoxication. We affirm.In Charles Robinson v. State of Indiana, an 18-page, 2-1 opinion, Judge Barnes writes:
We conclude the record establishes that Robinson was not entitled to severance of the charges as a matter of right, but rather that the charged offenses were “connected together or constituting parts of a single scheme or plan.” See I.C. § 35-34-1-9(a)(2). On two separate occasions less than a month apart, Robinson went to the same Walmart in Shelbyville and stole or attempted to steal parts from a home security camera system box, after opening the box within the store. These two thefts had a common victim, modus operandi, and motive. Additionally, proof regarding both thefts was necessary in order for the State to establish the corrupt business influence charge; it would have been impossible to prove that charge without evidence related to both thefts. Thus, Robinson was not entitled to severance as a matter of right, and denial of that motion was within the trial court’s discretion. * * *In Keyaunna Hurley v. State of Indiana, a 9-page opinion, Judge Bradford writes:
We now turn to the question of whether Robinson’s commission of theft on two separate dates is sufficient to support his corrupt business influence conviction. * * *
Here, Robinson twice shoplifted or attempted to shoplift similar items from the same Walmart store. Beyond that, there is no evidence of any kind of ongoing criminal enterprise. There is no evidence of Robinson having acquired any property through “racketeering activity” other than the items he stole or attempted to steal from Walmart. There is no evidence of extensive planning or increasing sophistication of Robinson’s crimes. There is no evidence he enlisted any accomplices to work with him; the record does not contain any evidence that Hall was aware of Robinson’s criminal actions, and she denied having any knowledge of them. Robinson was not any kind of criminal mastermind, nor did he work for one. The crimes were isolated and sporadic.
We simply do not believe the commission of two acts of shoplifting of this type is the kind of activity our legislature meant to be covered by our RICO statute. * * *
The trial court properly denied Robinson’s severance motion. There is insufficient evidence to support his conviction for Level 5 felony corrupt business influence, but we remand for imposition of judgments of conviction and sentence for two counts of Level 6 felony theft. Reversed and remanded.
Robb, J., concurs.
Altice, J., concurs and dissents with separate opinion. [which begins at p. 16] ... I must part ways with the majority’s conclusion that the State presented insufficient evidence to support Robinson’s corrupt business influence conviction. I do not take issue with the majority’s observation that the commission of any two predicate offenses will not necessarily support a RICO conviction. My disagreement is with the majority’s conclusion that the specific facts of this case cannot support such a conviction.
Hurley consented to a chemical breath test after she failed certain field sobriety tests. During administration of the certified breath test, Hurley failed to provide a sufficient sample. Based on his interactions with and observations of Hurley, the officer administering the test was of the opinion that the insufficient sample was the result of a lack of cooperation by Hurley. As a result, she was deemed to have refused the test. The officer subsequently obtained a warrant for and completed a blood draw.NFP civil decisions today (7):
Appellee-Plaintiff the State of Indiana (the “State”) subsequently charged Hurley with two Class A misdemeanors and alleged that Hurley had committed a traffic infraction. Hurley requested review of the determination that she had refused the chemical breath test (the “refusal determination”). Following a hearing, the trial court upheld the refusal determination. Hurley now appeals from the denial of her verified petition for judicial finding of no refusal, claiming that the evidence was insufficient to sustain the trial court’s determination that she refused a breath test. We affirm. * * *
Given that the record establishes that Trooper Graves believed that the “Insufficient Sample” message was the result of a failure to cooperate by Hurley, we conclude that Trooper Graves’s decision to record that Hurley refused the test fell within the statutory parameters set forth in Section 2-4-2(b)(5) of Title 260 of the Indiana Administrative Code. * * *
Hurley claims that the evidence is insufficient to sustain the refusal determination because she agreed to take the test, she submitted to the test, she cooperated with Trooper Graves’s instructions, and she was never told by Trooper Graves that she was not blowing hard enough or needed to blow harder. Hurley’s claim in this regard, however, is effectively an invitation for this court to reweigh the evidence, which we will not do.
NFP criminal decisions today (16):
Ind. Decisions - Federal court upholds e-liquids statute challenge
Here is today's ruling by Judge Sarah Evans Barker in Legato Vapors v. Cook.
Eric Berman of WIBC tweets:
#vaping ruling from Sarah Evans Barker is 1 of 2 challenges to IN e-liquids regulations. 2nd case still pending before Judge Richard Young.
Ind. Gov't. - General Assembly life-time health insurance plan comes back to bite
Niki Kelly of the Fort Wayne Journal Gazette has had stories yesterday and today on the lifetime healthcare plan for legislators and certain LSA staff that John Gregg helped put into place at the turn of this century.
Some quotes from yesterday's story:
Democratic House Speaker John Gregg was on his way out the door when he signed a two-page letter instituting a controversial lifetime health care benefit for retired lawmakers that he is still taking advantage of today.From today's story:
He announced he was not seeking re-election in February 2002. A few months later, he and GOP Senate President Pro Tem Robert Garton quietly implemented the perk that later cost Garton his seat in the Senate.
Gregg – now running for governor against Gov. Mike Pence – and his wife receive benefits from the plan. Previously, his ex-wife and sons did as well. * * *
Lifetime health care for retired lawmakers came into being after legislative leaders inserted provisions in four bills in 2001 and 2002 – when Gregg was house speaker.
The last piece of legislation would have created a special fund to pay for the perk, but Gov. Frank O’Bannon vetoed the legislation amid budget cuts. A veto override failed and the benefit has been paid through general fund dollars since.
The law allowed lawmakers who retire with at least six years and one day of service to lock in for life the employee percentage of contribution for monthly health insurance premiums they had been paying at retirement.
Depending on which plan lawmakers select, premiums can range from very little to up to 25 percent of the cost. The benefit also was available to lawmakers’ families and legislative employees.
Other state employees must pay 100 percent of all health insurance costs after they leave state government to stay in the insurance pool. * * *
After the perk became sensitive politically, Republican leaders got rid of it. GOP House Speaker Brian Bosma ended the bonus in January 2006 for anyone elected that November, which led to a spate of resignations as lawmakers wanted to keep the lucrative benefit in place.
Garton, though, stuck by the program and was defeated in the May primary largely because of the benefit.
Fort Wayne Sen. David Long emerged as the new Senate president pro tem in November 2006 and immediately ended the state-subsidized health care.
Democratic gubernatorial candidate John Gregg might have to answer politically, but he isn’t the only former state legislator benefiting from a sweetheart health care benefit he helped create.The story lists the current "29 former Indiana lawmakers or their spouses who are on the lifetime retiree health insurance program."
Twenty-nine former House and Senate members – or their spouses – are receiving state-subsidized benefits.
And it has cost taxpayers $6 million since the program’s inception.
The former legislators on the lifetime retiree insurance program include a state judge, prestigious law partners, a former mayor, two former House speakers and at least one person working as a state employee now.
Ind. Decisions - "Dashcam Video Refutes Traffic Cop Testimony"
That is the headline to this post at TheNewspaper.com ("Driving politics"). The subhead: "Federal judge tosses traffic stop evidence because dashcam video disproved police testimony." The post begins:
In traffic cases, the law enforcement officer's version of events is usually accepted as the most accurate account. Except in rare cases, this is enough to convict any motorist. One of those rare exceptions took place in an Indiana courtroom earlier this month as US District Court Judge Jane Magnus-Stinson reviewed dashcam video and believed the motorist's version of events over the "illogical" and "inconsistent" account given by a Hancock County sheriff's deputy.The must-read post includes a copy of the opinion.
Deputy Nicholas E. Ernstes was running a speed trap from the median of Interstate 70 on the overcast and rainy morning of November 18, 2015. From about a mile away, he spotted a black Mitsubishi sedan with New York license plates traveling at 58 MPH in the far right lane. The limit is 70 MPH.
"The vehicle also caught my attention because it did not have its headlights activated while driving in the rain in violation of Indiana Code 9-21-7-2," Deputy Ernstes testified in an affidavit.
Indiana Courts - E-filing mandatory starting tomorrow in appellate courts and Hamilton County
E-filing becomes mandatory starting tomorrow, July 1st, in the appellate courts (Supreme, COA, and Tax) and in Hamilton County. You might want to use the weekend to bush up!
Here is the calendar of when e-filing will become mandatory in your county.
Wednesday, June 29, 2016
Ind. Decisions - Court of Appeals issues 2 opinion(s) today (and 10 NFP memorandum decision(s))
For publication opinions today (2):
In Anonymous M.D. and Anonymous Hospital v. Kenneth Lockridge, on behalf of Lily Lockridge, Rose Lockridge, and Kenneth Lockridge, Jr., Minors, and Commissioner of Indiana Dept. of Insurance , a 13-page opinion, Judge Baker writes:
Traci Leach died from lung cancer after a radiologist failed to diagnose a tumor on a CT scan. After Leach’s death, multiple medical malpractice claims were filed, including a claim filed by three of her young children. The trial court dismissed all of the claims except for the children’s because the claims were untimely filed. But it found that because the children were under the age of six at the time of the alleged negligence and under the age of eight at the time of the filing of the complaint, their claims were not time-barred. Given the plain language of the statutes at issue, we find that the trial court did not err by finding that the children’s claims were not time-barred.In Deante Dalton v. State of Indiana , a 16-page opinion, Judge Bradford writes:
Anonymous M.D. (the Doctor) and Anonymous Hospital (the Hospital) (collectively, the Appellants) bring this interlocutory appeal of the trial court’s order partially denying their summary judgment motion. The Appellants argue that the two-year statute of limitations applies to the claims of Traci’s children and that the trial court erred by denying summary judgment on those claims. * * *
We acknowledge the wisdom of the Ellenwine holding but find that it does not apply to child claimants who fall under the tolling provision. The General Assembly has carved out an explicit exception to the two-year statute of limitations for children in a limited and specific age range. We have already held that those children may be either direct or derivative claimants. It would render the tolling provision meaningless as to children who are derivative claimants to say that they are nonetheless bound by the two-year limitations period governing all other claims. It is well established that we may not interpret one provision of a statute in a way that renders other provisions of the statute meaningless. E.g., Henderson v. Coutee, 829 N.E.2d 1028, 1030 (Ind. Ct. App. 2005). Given that our legislature has decided to treat children under the age of eight in a special way for the purpose of the medical malpractice limitations period and has not limited the special treatment to direct claimants, we find that the tolling provision must apply whether the children are derivative or direct claimants. Consequently, the trial court did not err by determining that the Children in this case were not time-barred because of the two-year statute of limitations period governing the underlying claim from which their claim derives.
The judgment of the trial court is affirmed and remanded for further proceedings.
On September 14, 2014, Appellant-Defendant Deante Dalton, along with two accomplices, participated in a violent home invasion which resulted in the death of one of those accomplices, Dretarrius Rodgers. As a result of his participation in the home invasion and Rodgers’s death, Dalton was subsequently charged with felony murder. Following a jury trial, Dalton was found guilty as charged.NFP civil decisions today (4):
On appeal, Dalton contends that the evidence is insufficient to sustain his felony murder conviction. For its part, Appellee-Plaintiff the State of Indiana (the “State”) argues that the evidence is sufficient to sustain Dalton’s conviction. * * *
In light of the evidence most favorable to Dalton’s conviction, we conclude that the State presented sufficient evidence to prove that Dalton’s actions, both as a principal and as an accomplice, were a mediate or immediate cause of Rodgers’s death. We therefore affirm the judgment of the trial court.
NFP criminal decisions today (6):
Ind. Decisions - 7th Circuit decides one Indiana case today
In Jack Brown v. Kevin Smith, Mayor of Anderson (SD Ind., Prratt), a 12-page opinion, Judge Williams writes:
During his lengthy tenure at the City of Anderson Transit System (CATS), Plaintiff Jack Brown developed diabetes and became unable to maintain his commercial driver’s license (CDL). For nearly a decade, this development proved irrelevant—at least from an employment standpoint. However, several years after being promoted to a position that required a CDL, Brown was fired. He sued the City of Anderson and others, alleging that his termination amounted to disability discrimination since possession of a CDL was not an essential function of his job. After the City unsuccessfully moved for summary judgment, a jury sided with Brown and awarded him damages.
The City raises several arguments on appeal. Principally, it contends that the district court should have ruled as a matter of law that possession of a CDL was an essential job function. Alternatively, the City claims that the district court erred in instructing the jury about the essential‐function inquiry, and in concluding that Brown adequately mitigated his damages. We disagree. The essential‐function issue is a factual question that was properly put before the jury, and the district court’s jury instructions on this issue were consistent with federal regulations and our precedent. We also conclude that Brown reasonably attempted to mitigate his damages by starting his own trailer‐hauling business, despite the fact that the business ultimately failed. So we affirm the district court’s judgment.
Ind. Laws - New takes taking effect July 1 include several being challenged
Brian Slodysko of the AP has a story today highlighting several of the new Indiana laws taking effect July 1.
Police body cameras. Indiana prosecutors "say the Rules of Professional Conduct restrict them from releasing the recordings" under the new police body camera law, according to an Indiana Lawyer story today.
Here is a summary of all the 2016 enrolled acts, including their effective dates.
Courts - "How an Ohio judge’s ruling threatens journalists’ ability to cover the court system"
From the Columbia Journalism Review, a long, June 27th commentary by Jonathan Peters that begins:
An attorney has a civil case that’s about to go to trial. He contacts a friend of his, the editor of a local publication, to encourage coverage of the case. The attorney shares public court records and information about the court schedule. The case is newsworthy, and on the eve of trial the editor’s publication runs a story that outlines the claims of the attorney’s clients.The lengthy must-read article has many valuable links.
And for this … the attorney deserves to be sanctioned for frivolous conduct?
That’s how one Ohio judge sees it, although plenty of people, it should go without saying, disagree. An appeal is underway, and a coalition of civil liberties and media groups, including the Ohio Newspaper Association, the Ohio Association of Broadcasters, and the Ohio Coalition for Open Government, has filed an amicus brief arguing that the judge used the wrong standard to impose the sanctions. The First Amendment Lawyers Association has filed a separate brief arguing that the sanctions were unconstitutional. And—full disclosure that I’m hardly a neutral commentator here—I’m the lead author of a third brief, for the ACLU of Ohio, arguing that the sanctions could restrict the rights of attorneys to communicate with the press.
Tuesday, June 28, 2016
Ind. Decisions - Court of Appeals issues 4 opinion(s) today (and 4 NFP memorandum decision(s))
For publication opinions today (4):
In Elaine Chenore v. Robert Plantz, a 6-page opinion, Judge Bailey writes:
Elaine Chenore (“Chenore”) appeals, following the deemed denial of a motion to correct error challenging the dismissal of her attorney malpractice action against Robert Plantz (“Plantz”). She presents the sole issue of whether the trial court improperly dismissed the claim pursuant to Indiana Trial Rule 12(B)(6). We reverse. * * *In Jeffrey B. Morgan and Wendi S. Morgan v. Andrew White and Holly White , a 14-page opinion, Judge Brown writes:
Chenore’s complaint asserted facts in avoidance of the statute of limitation. To the extent that Plantz has argued that Chenore should have discovered her harm earlier, this presents a factual dispute not apparent on the face of Chenore’s complaint. “A complaint is sufficient and should not be dismissed so long as it states any set of allegations, no matter how unartfully pleaded, upon which the plaintiff could be granted relief.” Graves v. Kovacs, 990 N.E.2d 972, 976 (Ind. Ct. App. 2013).
Accordingly, we agree with Chenore that her complaint was improperly dismissed pursuant to Trial Rule 12(B)(6).
Jeffrey B. Morgan and Wendi S. Morgan (collectively, the “Morgans”) appeal the trial court’s findings of fact, conclusions and judgment in favor of Andrew White and Holly White (collectively, the “Whites”) on the Whites’ counterclaim for adverse possession and quiet title. The Morgans raise one issue which we revise and restate as whether the court’s judgment is clearly erroneous. We affirm.In Rachel Staggs v. Corena Buxbaum , a 21-page opinion, Judge Brown writes:
Rachel Staggs appeals the trial court’s order awarding treble damages, actual costs, and attorney fees pursuant to the Crime Victim Relief Act (“CVRA”) in favor of Corena Buxbaum. Staggs raises two issues which we revise and restate as:In Timothy J. Jimerson v. State of Indiana , a 13-page opinion, Judge Bailey writes:
I. Whether the trial court applied the wrong standard in awarding exemplary damages under the CVRA; and
II. Whether the court’s award of exemplary damages is clearly erroneous.
Timothy Jimerson (“Jimerson”) appeals his conviction for Voluntary Manslaughter, a Class A felony. He presents the sole issue of whether the trial court abused its discretion in restricting the testimony of an expert witness. We affirm. * * *NFP civil decisions today (3):
The case law appears to present three categories of expert testimony regarding false or coerced confessions: a general description of techniques and goals; highlighting of practices used in a particular interview; and the impact of techniques on a particular confession. The parties agree that general testimony is permissible and that allowing testimony on the latter category would invade the province of the jury. They disagree, in light of the relevant precedent, as to admissibility of evidence falling within the second category. * * *
Together with extensive background testimony from Dr. Leo, the jury was provided with Jimerson’s statement in audio, video, and written form. Moreover, Jimerson testified and explained his subjective view, that is, he had said certain things he later recanted because he was “very scared.” (Tr. at 1163.) He testified that he had been led into scenarios, told that his DNA was all over Spicer’s body and house, and encouraged to demonstrate that he was not a monster. As such, the jury had been given adequate information to apply its common knowledge and experience. Where a jury is able to apply concepts without further assistance, highlighting individual exchanges or vouching for the truth or falsity of particular evidence is invasive.
Jimerson has not demonstrated that the trial court abused its discretion in the restriction of expert testimony.
NFP criminal decisions today (1):
Ind. Decisions - Supreme Court decides two today
In Steven Clippinger v. State of Indiana, an 11-page, 5-0 opinion, Justice Massa writes:
Steven Clippinger murdered his brother and sister-in-law and was sentenced to two terms of life imprisonment without parole, with an additional term of twenty years for his conviction as a serious violent felon in possession of a firearm, all to be served consecutively. Clippinger appeals the sentence only, claiming that the trial court was without statutory authorization to impose consecutive life sentences, and that the trial court’s sentencing order in this case was inadequate. We agree with Clippinger’s second contention, but find the sentence imposed was proper, and thus exercise our appellate prerogative to sentence Clippinger to two consecutive terms of life imprisonment without parole, and affirm the additional consecutive term of twenty years imprisonment for the firearm possession conviction.
In the Matter of Charles P. White is a 4-page, 4-0 (J.Massa not participating) per curiam attorney discipline ruling:
We find that Respondent, Charles P. White, engaged in attorney misconduct. For this misconduct, we conclude that Respondent should be suspended from the practice of law in this state for at least two years without automatic reinstatement. * * *
In the current case, Respondent and the Commission propose that Respondent receive a suspension from the practice of law for a period of at least two years, without automatic reinstatement. Viewed by itself, this would be at the low end of the discipline we have imposed in similar cases. We note, however, that Respondent already has been under interim suspension in this matter for over four years, and in conjunction with the parties’ proposed final discipline Respondent will have served over six years of suspension before he becomes eligible to petition for reinstatement. Moreover, a petition for reinstatement would be granted only if he is able to prove by clear and convincing evidence his fitness to resume the practice of law, a burden that likely will be particularly steep given the seriousness of Respondent’s misconduct. See Gutman, 599 N.E.2d at 608. With these considerations in mind, the Court approves and orders the agreed discipline.
Conclusion. The Court concludes that by virtue of his felony convictions for perjury, voting outside a precinct of residence, and theft, Respondent has violated Indiana Professional Conduct Rules 8.4(b) and 8.4(c). Respondent already is under an order of interim suspension in this case and a separate suspension order for continuing legal education noncompliance. For Respondent’s professional misconduct, the Court suspends Respondent from the practice of law in this state for a period of not less than two years, without automatic reinstatement, beginning on the date of this opinion. At the conclusion of the minimum period of suspension, Respondent may petition this Court for reinstatement to the practice of law in this state, provided Respondent pays all applicable fees and costs, fulfills the duties of a suspended attorney, and satisfies the requirements for reinstatement of Admission and Discipline Rule 23(4) and (18). The costs of this proceeding are assessed against Respondent.
Ind. Decisions - Apparently no Indiana appellate decisions today [Updated]
Nothing posted today to Supreme, Court of Appeals, or Tax Court lists.
[Updated] Wrong, opinions have just been posted. Court has tweeted there were technical problems. Summaries coming soon.
Ind. Decisions - SCOTUS denies cert to Wisconsin appeal of 7th Circuit ruling striking Wis. abortion restrictions
From the end of an April 17th Milwaukee Journal-Sentinel story, headed "Major Wisconsin cases could hang in balance at short-handed Supreme Court,"reported by Patrick Marley:
Abortion. Wisconsin Republicans approved a law in 2013 requiring doctors who provide abortions to have admitting privileges at a hospital within 30 miles of where they perform the procedure.ILB: As it turns out, the SCOTUS did neither of those things, but instead yesterday struck the Texas provisions. As a result, as reported today by Jason Stein of the Journal Sentinel:
U.S. District Judge William Conley in Madison ruled the law violated the right to abortion. In a 2-1 ruling, a 7th Circuit Court of Appeals panel agreed with that finding.
Attorney General Brad Schimel last month asked the U.S. Supreme Court to take up the case.
The nation's high court showed divisions in March when it heard arguments over a Texas law that requires admitting privileges and places other restrictions on abortion that critics say would force the closure of three-quarters of Texas' abortion clinics.
If the court split 4-4 on the Texas case, it would leave in place a 5th Circuit Court of Appeals decision largely upholding those abortion restrictions. But a similar split in the Wisconsin case would cause the opposite result because of the 7th Circuit's ruling.
It is also possible the U.S. Supreme Court would send the Texas case back to lower courts for further proceedings.
Handing down its second major abortion action in as many days, the U.S. Supreme Court refused Tuesday to rescue a Wisconsin law restricting abortion clinics and doctors in the state, leaving in place lower court rulings that had struck it down.And SCOTUSblog's Lyle Denniston writes this morning, in a post headed "Court to hear major new controversies — next Term":
Tuesday's simple order follows a lengthy decision striking Monday down similar restrictions on abortion providers in Texas that was considered the high court's most significant ruling on the procedure in a generation.
The court, acting on the last day of a term in which it became short-handed after the death of Justice Antonin Scalia, ruled 5-3 that the Texas law's restrictions go beyond the type permitted under the court's 1992 ruling in Planned Parenthood v. Casey.
Wisconsin passed similar though less extensive limits on abortion in 2013 only to see them struck down by a trial court in Madison and by the 7th Circuit U.S. Court of Appeals. Justice Stephen Breyer directly cited the lawsuit over Wisconsin's law and those in other states in his majority opinion in the Texas decision Monday. * * *
University of Richmond law professor Carl Tobias said late Monday that it would have been nearly impossible for Wisconsin to win its appeal of 7th Circuit decision in light of Monday's decision. For that to happen, two Supreme Court had justices would have to change the positions taken in the Texas case — an unlikely scenario.
"It seems like there is no clear or good path. I expect SCOTUS will just 'dismiss' in light of today's opinion," Tobias said, correctly predicting Tuesday's outcome.
Following Monday’s ruling striking down a Texas law requiring that doctors who perform abortions must obtain admitting privileges at a hospital near their clinics as part of its decision in Whole Woman’s Health v. Hellerstedt, the Justices simply denied review on Tuesday of two other cases by states seeking to defend similar laws: a Mississippi case, Currier v. Jackson Women’s Health Organization, and a Wisconsin case, Schimel v. Planned Parenthood.
Ind. Decisions - 7th Circuit decided one Indiana case yesterday
In Panther Brands, LLC v. Indy Racing League, LLC (SD Ind., Pratt), a 7-page opinion, Chief Judge Wood writes:
This case arises from the world of auto racing and the sponsorships that go along with it, but it is in the wrong court. Panther Brands is a marketing and brand management company. In 2013, Panther signed a contract with IndyCar, which authorizes the Indy Racing League car series, to purchase various marketing benefits to provide to its team sponsor. The benefits included access to coveted space in the “Fan Village” at IndyCar racing events, an area where sponsors set up displays to attract fans. The Army National Guard (“the Guard”) had been Panther’s team sponsor from 2008 to 2013. After it signed the 2013 contract, Panther learned that another team, Rahal Letterman Lanigan Racing (“RLL Racing”), intended to provide the Guard with Fan Village space as a sponsorship benefit.
Believing that RLL Racing had conspired with IndyCar and a bid management agency called Docupak to persuade the Guard to sponsor RLL Racing instead of Panther, Panther brought suit in state court against RLL Racing, Docupak, IndyCar, and active‐duty Guard member John Metzler, who acted as the liaison between the Guard and Panther. The defendants removed the case to federal court, where the United States was substituted as a party for Metzler, see 28 U.S.C. § 2679(d); Panther then filed an amended complaint that did not name either Metzler or the United States. The district court dismissed the complaint against RLL Racing, IndyCar, and Docupak pursuant to Federal Rule of Civil Procedure 12(b)(6), and found the United States’s motion to dismiss for lack of jurisdiction moot. Because the basis for federal jurisdiction disappeared when Panther amended its complaint, we vacate the district court’s decision and remand for dismissal for lack of jurisdiction. * * *
After the United States (standing in for Metzler) was eliminated as a party as a result of Panther’s amendment of the complaint, the basis for federal jurisdiction disappeared. This is so even accepting that Westfall Act removal was appropriate initially.
Ind. Law - Two good stories on the impact of yesterday's SCOTUS abortion decision on Indiana
"Legal experts: Supreme Court abortion ruling unlikely to have immediate impact on Indiana," a long, very good, $$ story by Megan Banta of the Bloomington Herald-Times. Some quotes [ILB emphasis]:
In a 5-3 ruling, the Supreme Court has struck down Texas’s restrictions, saying the laws impose an undue burden on a woman’s right to obtain an abortion. The Texas law, passed in 2013, requires that abortion providers have admitting privileges at a nearby hospital and that abortion facilities comply with the requirements for ambulatory surgical centers. The plaintiffs in the case are clinics, including Whole Woman’s Health, and doctors providing abortion services.Here is more on the current Indiana lawsuit, from WFHB, Bloomington, quoting Ken Falk, legal director for the Indiana ACLU:
It’s one of the many so-called TRAP laws — targeted regulation of abortion providers — that states, including Indiana, have passed in the wake of both the 1973 Roe v. Wade and the 1992 Planned Parenthood v. Casey decisions by the U.S. Supreme Court.
Currently, Indiana law requires physicians who perform abortions to have admitting privileges, in writing, at a hospital located in the county where abortions are provided or in an adjacent county, or to have entered into a written agreement with a physician who has those privileges. A new law, which currently is being challenged in federal court, would require any written agreement to be renewed annually and would require the Indiana State Department of Health to submit copies of admitting privileges and written agreements between physicians to other hospitals in the county and contiguous counties where abortions are performed.
While the Supreme Court decision doesn’t invalidate Indiana’s law — it only directly affects the law in Texas despite being a national ruling — it will have an effect on the way a court would rule on any future challenge to that law and other laws that specifically regulate abortion clinics and providers, said Dawn Johnsen, the Walter W. Foskett Professor of law at Indiana University’s Maurer School of Law.
Johnsen said the high court’s decision means that lower courts, when applying the new precedent set in Whole Woman’s Health v. Hellerstedt, can’t just defer to a state that says it enacted a law for the purposes of promoting women’s health. Now, courts must give a meaningful, close review to see whether that claim is true — whether a law actually benefits women who might seek an abortion, or whether it simply serves as an obstacle.
That’s a change in the “undue burden” standard in Planned Parenthood v. Casey, in which the court said laws impose such a burden if they are enacted with the purpose of placing “a substantial obstacle in the path” of a woman seeking an abortion.
“It should serve to have courts invalidate all laws that are like the Texas restrictions — that truly serve no health purpose,” Johnsen said. “That will cover a lot of restrictions, but not all restrictions.” * * *
Johnsen said it’s a reality that the fight will continue, even though the ruling is “great progress when we’re talking about TRAP laws — those enacted under the guise of protecting women’s health.”
The fear, she said, is that those who have been trying to overturn Roe v. Wade — which affirmed the basic right to an abortion, but with limits — have been creative in coming up with ways to erect obstacles and will come up with new forms of restrictions.
She pointed specifically to laws in which legislators say they’re trying to inform women’s decisions and require clinics to hand out pamphlets with specific information and have women wait a defined amount of time between receiving that information and actually receiving abortion care. Those laws aren’t directly affected by this decision, she said.
One fight playing out at the state level is a suit filed in April by the American Civil Liberties Union of Indiana and PPINK claiming an abortion restriction signed into law by Gov. Mike Pence is unconstitutional.
The lawsuit — filed in U.S. District Court in the state’s Southern District against the Indiana State Department of Health, prosecutors in Monroe County and three other counties and members of the state’s medical licensing board —also asked the court to block enforcement of the law, which is set to go into effect Friday and bans abortions sought because of genetic abnormalities and mandates an aborted fetus be buried or cremated.
The restriction would make Indiana’s abortion laws among the most severe in the nation, and the ACLU of Indiana and PPINK claim it violates due process and equal protection under the Fourteenth Amendment as well as free speech rights as provided under the First Amendment. * * *
U.S. District Court Judge Tanya Walton Pratt is set to rule in that case by the end of the day Thursday.
The ACLU is currently involved in a lawsuit challenging House Bill 1337, a package of new abortion restrictions signed into law earlier this year. The Indiana law, while conceptually similar to the Texas bill, has several differences. Indiana is attempting to add new requirements concerning the disposal of fetal tissue, as well as requiring abortion-seekers to obtain an ultrasound and receive state-designed brochures. The state argues these information campaigns are important for “informed consent”. One crucial similarity is that HR 1337 also requires doctors at abortion clinics to have admitting privileges – the very same requirement just struck down in Texas.See this June 15th ILB post for more on the challenge to the Indiana law, HEA 1337, set to take effect July 1.
Falk explained how the Indiana law differs, saying “Well they are not identical provisions on the books in Indiana; but what the Texas case tells us is that if restrictions are imposed specifically on abortion clinics and not other clinics, then they have to be examined very closely to determine if they really are designed to protect the life and health of the mother or if they are instead designed to throw a roadblock on the right to obtain an abortion. And Indiana, like many states, has attempted to impose new and more onerous regulations, and obviously, that has be filtered through the lens of this new case.”
The Indiana ACLU is not challenging HB 1337 on the undue burden standard, as was the case in Texas. Instead, they are arguing that the law doesn’t even meet the basic rational basis standard. That precedent says that, at the bare minimum, the government must show a rational reason for passing laws that may infringe on constitutional rights. In short, the ACLU says the law just doesn’t make any sense.
Falk explained the grounds for the ACLU’s lawsuit: “Well, we obviously challenged those. We didn’t challenge on the grounds that they were’undue burden;’ we challenged on the case that they are were not rational. One of the things that the case today focused on is what the State’s rationale- what is the justification for any restriction. And we argue that there really is no justification for the restrictions in the law concerning the disposal of fetal and embryonic tissue.”
The Indiana law is scheduled to take effect July 1st, but the ACLU is expecting a district court decision on whether to issue an injunction blocking the law before then. From there, the Supreme Court’s ruling is likely to be invoked when the district court begins hearing arguments. The ruling fell along traditional party lines in the Court, with justices Roberts, Alito, and Thomas opposing the liberal-leaning majority.
Ind. Decisions - "Appeals court overturns Kokomo man's jail sentence"
A Kokomo man will not have to serve more than three years in jail after the Indiana Court of Appeals ruled Howard Superior Court Judge William Menges wrongfully revoked his suspended sentence for violating the terms of his probation. * * *The Tribune story is followed by links to stories on the earlier rulings.
The court ordered Menges to reverse Liggin’s termination from the re-entry program, along with the revocation of his probation that was based on his termination, and remanded the case for further proceedings consistent with their ruling.
This is the fourth time since March 2015 the Indiana Court of Appeals has overturned rulings and sentencings issued by Menges.
Since that time, the appeals court has ruled he issued an excessive prison sentence on a drug-related charge, overreached his authority when he overturned a plea agreement that he had already accepted, and wrongly sentenced a man to 20 years in prison after he failed to complete the county’s drug court program.
Monday, June 27, 2016
Ind. Decisions - "Cedar Lake firing defiled spirit of open records laws "
Supplementing this ILB post from last Tuesday, headed "'Court: Cedar Lake unjustifiably fired employee'; and Why is this NFP?" the NWI Times, which published the original story, this weekend had an editorial headed "Cedar Lake firing defiled spirit of open records laws." Some quotes:
The reasoning behind Cedar Lake's termination of Hoekstra's employment should be enough to boil the blood of any citizen who believes taxpayer-funded records maintained by government should be freely available to the public.ILB: Actually, while not exactly addressing the Ceder Lake issue, the General Assembly in 2012 did amend the public records law to included provisions permitting a court to impose a civil penalty for certain failures to comply. See also this earlier post from the 2012 session.
Court records indicate Hoekstra received an informal request from Eric Wolverton, an engineer working on a municipal project, for minutes from a town meeting he was unable to attend.
Minutes recorded by government workers during public meetings are clearly open records under Indiana's public access laws. Truly open cities and towns post such minutes on municipal websites, making them available without need for access requests. This practice costs nothing and provides a public service.
Hoekstra, knowing Wolverton's request was for public records, emailed him a copy of the requested minutes. In other words, she complied with the law.
But Cedar Lake officials fired Hoekstra, claiming she should have required Wolverton to fill out a town form formally requesting the information.
The appeals court ruled against the town for doing so, ordering that unemployment benefits be paid to Hoekstra. * * *
The spirit of public records laws doesn't require that residents fill out special forms in requesting public documents. Under the law, public officials also have no right to ask why members of the public want such information, or what they intend to use it for. * * *
An untenable reality remains, in spite of the appeals court ruling. Civil lawsuits filed by citizens often are the only recourse of residents who seek clearly public information that is denied by Hoosier public officials.
Complaints can be made to the Indiana Public Access Counselor, but that counselor only can issue non-binding legal opinions.
It's time for the Indiana Legislature to consider fines and other penalties for public officials and agencies that stonewall citizens who seek information and documents to which they’re clearly entitled under the law. * * *
Now we need some teeth in the law to discourage cases like this from ever getting to the point where employees are fired for providing information, or citizens are sent away empty-handed.
The ILB is not aware that any public official has been penalized under the 2012 amendments, or that the possibility has been mentioned in a PAC or court ruling.
Courts - "Opinion analysis: Abortion rights reemerge strongly"
Lyle Denniston's long analysis, at SCOTUSblog, of the Whole Woman's Health decision today begins:
Putting the right to abortion back on the same constitutional footing the Supreme Court laid down nearly a quarter-century ago, a divided Supreme Court on Monday swept away new forms of state restrictions on the way clinics can function. Together with recent refusals by the Court to allow states to narrow the scope of the abortion right itself, the new ruling in Whole Woman’s Health Clinic v. Hellerstedt thwarted a wave of new laws against women’s choice to end pregnancy.
Still more on "Porter Co. Prosecutor faced with contempt in dispute with judge"
Updating these two posts from earlier this month:
- Ind. Courts - More on "Porter Co. Prosecutor faced with contempt in dispute with judge"
Updating this ILB post from yesterday, Kevin Nevers of the Chesterton Tribune has a good story on the dispute; it begins:The Indiana Supreme Court has been asked to intervene in a flap between Porter Superior Court Judge David Chidester...
Posted in The Indiana Law Blog on June 10, 2016 05:03 PM
- Ind. Courts - "Porter Co. Prosecutor faced with contempt in dispute with judge"
Bob Kasarda of the NWI Times has posted this story this afternoon. Some quotes, but read the whole story:VALPARAISO — The Indiana Supreme Court has been called in to settle a dispute heated enough that Porter Superior Court Judge David...
Posted in The Indiana Law Blog on June 9, 2016 05:46 PM
Here is the docket in the action. Here are:
- Relator’s Brief In Support Of Petition For Writs Of Prohibition And Mandamus - filed June 2, 2016, it begins:
Brian Gensel, Prosecuting Attorney for the 67th Judicial Circuit, by counsel Attorney General Gregory F. Zoeller, and his deputies Stephen R. Creason and Jesse R. Drum, respectfully petitions this Court for Writs of Prohibition and Mandamus directed to Porter Superior Court 4 and the Honorable David Chidester, as Judge thereof. The writ should prohibit Respondents from issuing and enforcing orders in OVWI cases that direct Relator to ex parte file with the court police reports, which, under this Court’s clearly established precedent, are confidential, privileged attorney work product materials. It should also direct Respondent Court to retract its related 0rdérs, including the rules to show cause why the Relator and his deputies should not be held in contempt.
- Respondent's Brief in Opposition to the Writ - filed June 24, 2016, it begins:
The State seeks a writ of mandamus — an extraordinary remedy — to prevent Respondent from reviewing a copy of police reports that the State has already turned over to opposing counsel. In support of its argument, the State invokes the work product privilege — a claim that is fundamentally misplaced because any privilege has been waived and Respondent has ordered that the report be placed in a confidential case file that can only be viewed by Respondent court (and opposing counsel, which already has a copy of the report).
Ind. Decisions - Court of Appeals issues 2 opinion(s) today (and 5 NFP memorandum decision(s))
For publication opinions today (2):
In BC Osaka, Inc. and City Inn, Inc. v. Kainan Investment Groups, Inc. , a 12-page opinion, Judge Mathias writes:
Angelica Magallanes (“Magallanes”) sustained personal injuries when she tripped and fell on a rod protruding from a cement bumper in the BC Osaka restaurant parking lot. Magallanes filed a complaint against BC Osaka, Inc.2 and City Inn, Inc. (collectively “Tenant”) and Kainan Investment Groups, Inc. (“Landlord”). Landlord filed a cross-claim against Tenant and a motion for summary judgment, arguing that it was not liable to Magallanes based on the indemnity clause of the commercial lease agreement (“the Lease”). The trial court granted Landlord’s motion. Tenant now appeals and argues that the trial court erred in granting Landlord’s motion for summary judgment.In Employer v. Review Board of the Indiana Department of Workforce Development and Employee , an 18-page opinion, Judge Brown writes:
We reverse and remand for proceedings consistent with this opinion. * * *
Conclusion. Because the Lease’s indemnification provision did not state in clear and unequivocal terms that Tenant would indemnify Landlord for Landlord’s own negligence, we cannot conclude that the clause is applicable here. Further, Landlord reserved specific rights to possess and control parking areas in the Lease. For all of these reasons, a genuine issue of material fact exists whether Landlord is liable to Magallanes for her injuries. The trial court erred by granting Landlord’s motion for summary judgment and ordering Tenant to indemnify, hold harmless, and provide a legal defense to Landlord. We therefore reverse and remand with instructions for the trial court to hold a jury trial on the matter.
M.F. (“Employer”) appeals a decision of the Review Board of the Indiana Department of Workforce Development (the “Board”) in favor of C.G. (“Claimant”) with respect to Claimant’s claim for unemployment benefits. Employer raises one issue which we restate as whether the Board erred in concluding that Claimant was not discharged from her employment for just cause. We reverse. * * *NFP civil decisions today (1):
The issue is whether the Board erred in concluding that Claimant was not discharged from her employment for just cause. Employer maintains that the Board’s decision is unreasonable and contrary to law because the evidence established that Claimant repeatedly failed to perform her job responsibilities properly and follow Employer’s instructions, had been informed about the importance of entering accurate patient demographic and insurance information and prepping patient charges on a number of occasions, and was given multiple chances to correct her deficiencies. Employer further argues that, even if the manager did not explicitly inform Claimant that her job was in jeopardy, explicit notice is not required where, despite repeated correction, an employee demonstrates a pattern of substandard work performance. Employer also argues that a reasonable person would not conclude that Claimant’s repeated mistakes, errors, refusal to follow instructions, and inability to perform her job duties should be overlooked or ignored because Employer occasionally thanked her for her services. * * *
Based upon the record, we conclude Claimant was discharged for just cause. See Recker, 958 N.E.2d at 1140-1142.
Conclusion. For the foregoing reasons, we reverse the decision of the Board that Claimant was not discharged for just cause.
NFP criminal decisions today (4):
Ind. Decisions - Transfer list for week ending June 24, 2016
Here is the Clerk's transfer list for the week ending Friday, June 24, 2016. It is two pages (and 23 cases) long.
Four transfers were granted last week:
- State of Indiana v. David Brown - This was a NFP COA ruling from March 31, 2016, where the COA sua sponte decided the State did not have authority to bring the appeal.
- Marvin Beville v. State of Indiana - This was a 2-1 NFP COA ruling from March 29, 2016 - a snippet from the dissent:
The majority finds, as argued by the State, that “after watching the video [Beville] will learn the identity of the CI.” Slip op. at 7. However, other than the State’s mere assertion, the record does not support such a conclusion. The record does not reveal that the trial court examined the video and made such a finding, and the record on appeal does not contain a copy of the video.
- KS & E Sports, et al. v. Dwayne H. Runnels - This was a 2-1 March 17, 2016 COA opinion, holding, per a quote from Reuters, that a law "immunizing gun manufacturers and dealers from lawsuits by victims of illegal shootings does not offer blanket protection for defendants that put weapons in the hands of criminals."
- Termination: R S v. Indiana Department of Child Services - This was a March 23, 2016 NFP COA opinion affirming the involuntary termination of a father's parental rights: "While it seems Father and Child have a bond, we cannot say the trial court’s conclusion is unsupported by the findings."
- L.C. v. W.Z. - this is a 2/16/16 COA decision. Transfer Denied - All Justices concur, except Rush, C.J., and Slaughter, J., who vote to grant the petition to transfer.
Order argument was held in this case on June 23rd. You may watch the argument here.
Courts - SCOTUS reverses 5th Circuit decision upholding Texas abortion prohibitions [Updated at 2:14 PM]
The opinion in Whole Women's Health, via the SCOTUSblog case page.
Mauree Groppe tweets:
IN was among the states which filed an amicus brief backing the TX laws.How Appealing has collected links to some stories on the opinion - NYT, WAPO, LA Times.
[Updated at 2:14 PM] Here now is a story in the Indianapolis Star, reported by Shari Rudavsky and Maureen Groppe, headed "What Supremes abortion ruling means for Indiana."
Ind. Gov't. - More on "Indiana vape law shuts dozens of e-liquid makers out of industry"
Imagine the Indiana General Assembly told carmakers across the world that they had until the end of the year to get licensed to do business in Indiana—and if they didn’t, they were out. Forever. It would be illegal not just to manufacture their vehicles in the state but for dealers to sell their cars anywhere in Indiana anytime in the future.More:
New manufacturers would be out of luck, too. If a company didn’t exist before Dec. 31, it could never, ever sell cars in Indiana.
And, oh, to get licensed, manufacturers would all have to buy their doors from one designated company—a company that didn’t have enough doors to go around.
Sound far-fetched? Outlandish? Absolutely. But it’s what lawmakers have done to the e-liquid industry in Indiana.
The Legislature started with a worthy goal. When the vaping industry emerged, it faced no real regulation. Retailers could sell the products to kids, there was no requirement that e-liquid makers list their ingredients, and no one was testing the liquids to make sure they were safe. Common-sense regulations were certainly in order.
But lawmakers went far beyond common sense. They created a system that essentially made one private firm—a company with no obligation to provide information to the public—the gatekeeper for e-liquid sales in Indiana.
That might not seem like a big deal. We aren’t actually talking about cars, an industry that affects almost everyone. A small minority of Hoosiers vape, although the numbers appear to be growing.
But the state’s action should concern every business owner in Indiana and every consumer who wants competition in the marketplace. Pence should find a way to postpone the law’s implementation and the General Assembly should rewrite the legislation to ensure it’s fair to all—consumers and business owners alike.
Ind. Law - Still more on impact of SCOTUS blood draw consent decision in Indiana
The ILB has just received this helpful note:
Long time reader of the blog, extremely happy you were able to continue on!
I am the Traffic Safety Resource Prosecutor for Indiana, and I am with the Indiana Prosecuting Attorneys Council. Obviously the Birchfield v. North Dakota case has been on the top of my watch list for a while, I just wanted to clarify the situation, as AP originally reported Indiana as a state that would be affected by this decision.
The Supreme Court held that:
I read your update regarding 9-30-6-6(g), which allows for a warrantless blood draw if the officer certifies in writing that the driver was involved in a serious bodily injury or fatal crash and the officer has probable cause to believe they are intoxicated. However, this statute was invalidated by Missouri v. McNeely in 2013. That case held that a warrantless blood draw, minus a showing of exigency, was not allowed (the State had argued that since intoxicants are being metabolized by the system, that created an exigent circumstance; the court disagreed that that fact by itself was enough to bypass the warrant requirement and was looking for more of a showing on why a warrant could not be obtained). 9-30-6-6(g) recognized the metabolization aspect, hence its passage. However, it requires no further exigency showing, and is therefore clearly in violation of the ruling in McNeely.
- A breath test for alcohol is a lawful warrantless search incident to arrest.
- A blood test for alcohol is a significant bodily intrusion and cannot be taken incident to arrest. Absent consent, a warrant must be obtained.
- Because a breath test can be lawfully required incident to arrest, a state may criminalize a refusal to submit to a breath test.
- Because a blood test requires a warrant, a state cannot criminalize a refusal to submit to a blood test.
- Implied consent laws that impose civil or administrative penalties for refusing to submit to a breath or blood test remain valid. This is what the court said on page 41:
"Our prior opinions have referred approvingly to the general concept of implied-consent laws that impose civil penalties and evidentiary consequences on motorists who refuse to comply. See, e.g., McNeely, supra, at ___ (plurality opinion) (slip op., at 18); Neville, supra, at 560. Petitioners do not question the constitutionality of those laws, and nothing we say here should be read to cast doubt on them."
While Birchfield would clearly effect 9-30-6-6(g), officers and prosecutors have already adjusted to the warrant requirements laid down by McNeely for the past 3 years.
In Indiana, when an officer has probable cause to believe someone is intoxicated, they shall read them the implied consent warning. Motorists must submit to any and all tests offered by the officer in order to avoid the license suspension. If a person refuses a blood test, a warrant must be obtained. This has been the law in Indiana since 2013 (when McNeely invalidated 9-30-6-6(g)). A person who refused the breath test is usually taken for a blood draw upon the issuing of a warrant, as a breath sample cannot be compelled.
I hope this helps, please let me know if you have any questions/comments/concerns,
Traffic Safety Resource Prosecutor
Indiana Prosecuting Attorneys Council
Ind. Courts - "Tax Court Under Scrutiny"
In April 2016, the [ Ad Hoc Tax Court Advisory] task force issued its findings and recommendations along with a report compiled by the National Center for State Courts (NCSC), which was contracted to assist the task force. These materials are now getting some attention and are definitely worthy of examination. The nine-member task force was chaired by Court of Appeals Judge James S. Kirsch. The members include a variety of experienced tax practitioners as well as the general counsel for the Department of Revenue and chief deputy for the Office of Attorney General. Tax Court Judge Martha B. Wentworth also participated as an “ex officio” liaison and attended meetings by invitation from the chair.
The NCSC researched the Court’s caseload, staffing and timeliness. It also interviewed stakeholders and conducted a survey seeking opinions on these subjects and on the perceived timeliness, fairness and demeanor of the Court. And it looked into case management, internal procedures and administrative practices. The statistical results, observations and recommendations are all set out in the report. The survey results evidence a contrast in opinions between the government responses and taxpayer responses regarding the quality of service provided by the Tax Court.
In short, it seems that the government representatives are significantly less satisfied with the Court. Not unrelated to their disgruntlement, it was noted in the preface to the findings that the Department of Revenue and attorney general members of the task force sought recommendations to review the very structure of the Court, recommending review of the de novo hearing process and the lack of automatic appeal rights. However, the majority of the group and the chair found these matters “outside the purview of the task force’s directive.”
Ind. Law - More on impact of SCOTUS blood draw consent decision in Indiana
After the ILB posted quotes from the original AP reporting on the SCOTUS decision Thursday in Birchfield v North Dakota, I immediately heard from Morgan County Chief Deputy Prosecutor Robert Cline that: "There are no criminal penalties in Indiana for refusal." The Indianapolis Star, which had published the AP story, added a correction:
Editor's Note: An earlier version of this story incorrectly stated that Indiana motorists face criminal penalties if they refuse a blood test when under suspicion of drinking and driving. In addition, police and prosecutors in Indiana say authorities already secure a search warrant if a driver refuses to consent to a blood draw, meaning this ruling will not likely impact Indiana.A story on Porter County policies, quoted Friday, included:
While the other states have additional criminal penalties for refusing a chemical test, [Porter County Prosecutor Brian] Gensel said, Indiana does not, but does impose additional license suspensions through the Bureau of Motor Vehicles.This weekend the ILB heard from criminal defense attorney Cara Wieneke on another aspect of the ruling:
I've been reading the articles on the SCOTUS case on needing a warrant for a blood draw. I also noticed on the blog that several attorneys are saying this will have NO impact on Indiana.ILB: Here is IC chapter 9-30-6: Implied Consent; Administrative and Evidentiary Matters. Sec. 6 is headed: "Chemical tests on bodily substances; disclosure of results; no privilege or liability; results admissible; limitation; test by law enforcement officer."
I have to disagree. While it won't have a huge impact, what about IC 9-30-6-6(g)? In my opinion, it basically invalidates that statute. The statute gives police officers the right to use reasonable force, if necessary, to force a person to submit to a blood draw based solely on probable cause of intoxication. Surely the SCOTUS case has changed the constitutionality of that statute.
Ind. Decisions - Upcoming oral arguments this week and next
This week's oral arguments before the Supreme Court (week of 6/27/16):
Thursday, June 30
- 9:00 AM - Demetrius Holloway v. State of Indiana (71A04-1508-CR-1292) After pleading guilty to operating a motor vehicle while intoxicated, Holloway was convicted of intimidation following a bench trial. Holloway appealed, arguing insufficient evidence supports his conviction for intimidation. A divided panel of the Court of Appeals affirmed. Holloway v. State, ___ N.E.3d ___, 2016 WL 659159 (Ind. Ct. App. 2016), trans. pending. Holloway has petitioned the Supreme Court to accept jurisdiction over the appeal.
ILB: This is a 2-1, Feb. 18, 2016 COA opinion. From the dissent: "Being a police officer is often fraught with danger and unpleasantness. But to affirm under these circumstances seems to me perilously close to rendering illusory the right to appeal a conviction such as this."
- 9:45 AM - Demajio Ellis v. State of Indiana (71A05-1511-PC-1845) For his role as an accomplice, Demajio Ellis pleaded guilty to two counts of attempted murder and two counts of attempted robbery, and received a sentence of 100 years with 60 years suspended to probation. The St. Joseph Superior Court denied Ellis’s petition for post-conviction relief. The Court of Appeals affirmed, finding Ellis’s plea was not unreliable. Ellis v. State, No. 71A05-1511-PC-1845 (Ind. Ct. App. March 15, 2016) (mem. dec.), trans. pending. Ellis has petitioned the Supreme Court to accept jurisdiction over the appeal.
ILB: This is a March 15, 2016 NFP COA decision. From the opinion: "The sole restated issue is whether Ellis consistently denied culpability for the crimes to which he plead guilty, undermining the reliability of his plea and requiring the post-conviction court to vacate it as a matter of law."
- 10:30 AM - Michael Day v. State of Indiana (24A05-1506-CR-724) After a bench trial, the Franklin Circuit Court convicted Michael Day of disorderly conduct. See Ind. Code § 35-45-1-3. A divided Court of Appeals affirmed, rejecting Day’s argument that his behavior did not constitute disorderly conduct within the meaning of the statute. Day v. State, 48 N.E.3d 921 (Ind. Ct. App. 2016), trans. pending. Day has petitioned the Supreme Court to accept jurisdiction over the appeal. ILB: This is a 2-1 March 15, 2016 NFP COA decision. From the dissent: "I simply cannot believe that a verbal argument between members of a household, within their own home, can be the sole basis of a criminal conviction for disorderly conduct."
Next week's oral arguments before the Supreme Court (week of 7/4/16):
- No oral arguments currently scheduled.
This week's oral arguments before the Court of Appeals (week of 6/27/16):
Tuesday, June 28
- 10:30 AM - Santiago Valdez v. State of Indiana (18A02-1509-CR-01514) Santiago Valdez was convicted of attempted rape and confinement. He agreed with the State to admit into evidence his 1993 conviction for a similar offense, believing that it would aid his insanity defense. The parties agreed on a limiting instruction regarding the 1993 conviction, but that instruction was never given to the jury. Also, the trial court did not allow Valdez to admit several documents from that 1993 case that suggested he was mentally ill. Valdez argues that this is particularly unjust since the prosecutor repeatedly claimed that Valdez had no history of mental illness. Finally, during closing arguments, the prosecutor not so subtly hinted that defense counsel instructed one witness on what to say, despite having no evidence that this occurred. Valdez argues that this entitles him to a mistrial. The Scheduled Panel Members are: Judges Baker, Najam and May. [Where: Monroe County Courthouse, Nat U. Hill Courtroom, Bloomington]
- 11:00 AM - Gregg Appliances, Inc., and HHGregg, Inc. v. Dwain Underwood, on behalf of himself and all others similarly situated (49A04-1509-PL-1434) Dwain Underwood, as representative of a class of certain management employees, sued HHGregg, Inc. after Gregg declined to play the class members a bonus based on company earnings. The company earnings were at a level that would result in bonuses, but that was because of an insurance payment the company received after its chairman died. Gregg argued it did not have to pay the bonuses because its earnings did not reflect the class members' performance. Gregg appeals a summary judgment for the class. The Scheduled Panel Members are: Judges Baker, May and Brown. [Where: Court of Appeals Courtroom (WEBCAST)]
- 11:00 AM - J. B. Hunt Transportation Inc., et al. v. The Guardianship Of Kristen Zak (45A03-1506-CT-00670) A semi jackknifed in the median on I-65 in icy weather. An hour later, a car lost control in the same spot on the roadway, spun into the median, and struck the jackknifed semi, causing severe injuries to the passenger in the car. The injured person filed a negligence claim against the semi driver and his employer; the driver and employer eventually lost after a jury trial. They appeal a number of issues, including denial for summary judgment, jury instructions, denial of bifurcation, and evidence admission. The Scheduled Panel Members are: Judges Baker, May and Brown. [Where: Court of Appeals Courtroom (WEBCAST)]
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.
Friday, June 24, 2016
Ind. Decisions - 7th Circuit decides one Indiana case today
In John Otrompke v. Bradley Skolnik, State Bd. Law Examiners (ND Ind., Miller), a 3-page opinion, Judge Posner concludes:
Otrompke’s baleful Illinois experience makes it imperative that he apply to the Indiana bar authorities for admission before challenging the legality of the state’s rules for admission. At present he has no standing to maintain a suit such as this because he can’t show harm. The judgment of the district court is therefore AFFIRMED.
Ind. Law - "Porter County complies with DUI warrants"
Porter County officials said a U.S. Supreme Court ruling that requires police to get a search warrant before taking blood from drivers suspected of drunken driving will have no impact here because they do that anyway.
The ruling, issued Thursday, said police must get warrants for the blood alcohol tests, but not breath tests, because the court considers those less intrusive.
"I always thought you needed a court order" for a blood test, said Porter County Sheriff David Reynolds. "We can take a breath test. That hasn't changed."
The Supreme Court upheld warrantless breath tests for people suspected of driving while intoxicated, Porter County Prosecutor Brian Gensel said in an email.
"Under current Indiana statutes, a police officer 'shall' offer a chemical test to anyone involved in a serious injury or death accident. If exigent circumstances exist, a blood test can be done involuntarily," he said. "Those are rare. Almost always, police get a search warrant for the blood test."
Drivers in all 50 states can have their licenses revoked for refusing drunken driving tests. The court's ruling affects laws in 11 states, including Indiana, which impose additional penalties for such refusals.
While the other states have additional criminal penalties for refusing a chemical test, Gensel said, Indiana does not, but does impose additional license suspensions through the Bureau of Motor Vehicles.
Ind. Decisions - Tax Court posts one ruling today, filed late yesterday
In RDM Sales and Service, Inc. v. Indiana Department of State Revenue, a 20-page opinion, Judge Wentworth writes:
RDM Sales and Service, Inc. has appealed the Indiana Department of State Revenue’s assessments of Indiana sales tax, interest, and penalties for the 2006, 2007, and 2008 tax years (“years at issue”). The matter is currently before the Court on the Department’s motion for summary judgment in which it claims that all of RDM’s vending machine sales and cafeteria sales are subject to sales tax and negligence penalties. The Department’s motion is granted in part and denied in part. * * *
For the above-stated reasons, the Court GRANTS summary judgment in favor of the Department and against RDM as to 1) the imposition of sales tax on bottled water and fruit juice sold from vending machines; 2) the imposition of sales tax on heated food and food for immediate consumption that RDM sold in its two cafeterias; and 3) the propriety of the penalties imposed against RDM. The Court GRANTS summary judgment in favor of RDM and against the Department, however, as to the imposition of sales tax on bottled water and fruit juice dispensed from vending machines free of charge or at a discounted rate to exempt customers. The Court also finds there are genuine issues of material fact that cannot be resolved on summary judgment regarding 1) whether and by whom eating utensils were provided with the sale of bakery items; and 2) whether RDM sold two or more food ingredients as a single item that it merely cut, repackaged, or pasteurized, or whether it sold raw animal foods that required cooking by the consumer to prevent food borne illness. Accordingly, the Court will direct the parties regarding the issues remaining for trial under separate cover.
Ind. Decisions - Court of Appeals issues 0 opinion(s) today (and 9 NFP memorandum decision(s))
For publication opinions today (0):
NFP civil decisions today (2):
NFP criminal decisions today (7):
Ind. Gov't. - "Panel looks at progress of criminal justice system overhaul"
... group of experts from Indiana's judicial and legal system know they have their work cut out for them as they try to change the nature of the state's criminal justice system.
On Tuesday, those experts from all over the state came to Indianapolis to see how their pilot counties are progressing with a new evidence-based approach to punishment and incarceration as well as mull what the state's goals should be moving forward. * * *
The point of the evidence-based system, David said, is realizing one size doesn't fit all when it comes to criminal justice and lots of ideas on how to make that idea work in Indiana were tossed around. Citations for minor offenses instead of arrests, no bail for low-risk offenders and more pretrial diversion options were some of many things the group looked at on Tuesday.
Courts - "Crown Point native hears first cases at Supreme Court"
Dan Carden reports in the NWI Times about yesterday's oral arguments before the Indiana Supreme Court. Some quotes:
Justice Geoffrey Slaughter ... took his seat Thursday on the five-member high court for the first oral arguments since being sworn-in June 13 as Indiana's 109th justice.
The Crown Point native, who successfully argued a case to the Supreme Court as an attorney just three months ago, waited less than three minutes before exercising his judicial prerogative to interrupt and question Noblesville attorney Eric Benner.
Slaughter asked Benner to clarify whether his client was supposed to provide certain documents in a divorce proceeding, as Benner initially claimed, or merely make them available for inspection.
Benner conceded the latter actually was the trial court's order before continuing with his argument. * * *
Slaughter's questions to attorneys in the three cases tended to focus on clarifying specific, narrow points of law and legal procedure.
He was not confrontational.
Though at one point Justice Mark Massa seemed to help an attorney who appeared to be struggling to answer a Slaughter query about whether a court issuing a protective order is the same as an injunction, or just similar in nature to injunctive relief.
It's not known whether Slaughter will write the court's decision for any of the three cases heard Thursday, or even whether there will be opinions to write, since the high court has not yet agreed to transfer jurisdiction from the Court of Appeals in any of them.
Those decisions, like most of the case-reviewing and opinion-writing work of Indiana's Supreme Court justices, are made behind closed doors.
Oral arguments are the most public part of the appellate judicial process, but not necessarily the most important, several former high court justices have said.
Thursday, June 23, 2016
Ind. Decisions - "Judge dismisses battery case, calls prosecutor's office 'negligent'"
That is the headline to Rebecca S. Green's long June 21st story in the Fort Wayne Journal Gazette. [ILB Update: The story was apparently updated, the link is now to the June 22 version] A few quotes:
Allen Superior Court Judge Fran Gull dismissed a felony battery case Tuesday after finding that the Allen County Prosecutor's Office acted with gross negligence. * * *
The Public Defenders Office assigned Michelle Kraus to represent him, and the case was scheduled to go to trial Tuesday morning.
But it never got that far. Before the jury got to hear it, Gull granted Kraus' motion to dismiss the case, citing ongoing issues with getting necessary information from the prosecutor's office while the case was being readied for trial.
Specifically, Kraus had been asking for more than two months about the potential of a video from the in-car police camera that might have shown what happened during the arrest. After being told repeatedly there was no video, the information changed late last week. But it was not until mid-morning Monday, Kraus finally obtained a working copy of the video.
It was not the first time Kraus alleged difficulties in obtaining discovery materials from the state of Indiana, via the office of Allen County Prosecutor Karen Richards.
Prosecutors are required to give the defense attorneys access to all the information they have in connection to a criminal case in a process called "discovery."
According to court documents, prosecutors were late or failed to turn over key pieces of information to her in three prior cases, all involving murder charges. * * *
In her handwritten order, Gull lambasted prosecutors for their conduct, and noted the presence of Richards, Chief Deputy Prosecutor Michael McAlexander for the hearing.
"Court finds the state grossly negligent in the performance of its duties by way of a pattern of discovery violations and grants the motion to dismiss," she wrote.
Richards said in an interview Tuesday afternoon that the problem in this case was one of technology.
"We missed one," she admitted. The problem, she said, is that there is now so much digital material compiled as part of a case, that the prosecutor's office might not even be aware of what all they have, or what is available to them.
There is no one place in the computer system where all the information, or a list of all the information is kept, she said.
"I don't think the court really understands how difficult technology has made finding things for discovery purposes," Richards said. "I don't think it's anywhere close to negligence on our part."
There was already a discussion with Fort Wayne Police command staff Tuesday to try to stave off similar problems in the future, Richards said.
Kraus said if the situation has become so complex, then make it simple.
"Pick up a phone and ask a question. 'Is there an in-car video?'," she said. "It was a simple question that needed to be asked, after I asked the question in March."
Ind. Decisions - 7th Circuit decides one Indiana case today, reversing Conour Firm funds distribution decision
In AFC 2006 Corp., v. Mark C. Ladendorf, Attorney At Law, P.C., And Timothy F. Devereux (SD Ind., Pratt), a 12-page opinion, Judge Easterbrook writes:
Attorney William F. Conour stole more than $4.5 million from clients’ trust funds, was convicted of fraud, and is serving ten years in prison. Shortly before these crimes came to light, attorney Timothy Deve reux left Conour Law Firm, LLC, and took 21 clients with him to Mark Ladendorf’s law firm. These clients ultimately produced attorneys’ fees aggregating some $2 million. This appeal presents a three-corner fight about who gets how much of that money. The contestants are Devereux and the Ladendorf Firm (collectively the Lawyers), several persons from whom Conour stole (collectively the Victims), and ACF 2006 (the Lender), whose parent corporation Advocate Capi tal, Inc., made a loan to the Conour Firm to finance the legal work and out-‐‑of-‐‑pocket expenses that a contingent-fee law firm must bear while suits are in progress.
There are two principal questions. First, how much of the $2 million goes to the Conour Firm for the services it per formed before Devereux left? Second, how are the funds to which the Conour Firm is entitled to be divided between the Victims and the Lender? * * *
The norm that victims of a lawyer’s breach of trust have a remedy notwithstanding the later grant of a security interest to a commercial lender is one of long standing and is reflect-‐‑ ed in Indiana by §30-4-3-22(c)(2). Section 23-1.5-2-7 tells us that the use of the corporate form to hold assets of a legal practice does not change that norm. It follows that the Victims have priority over the Lender in the funds that the Conour Firm is entitled to receive from the Lawyers.
The judgment of the district court is reversed, and the case is remanded for the entry of judgment consistent with this opinion.
Courts - "SCOTUS limits Indiana DUI tests" [Revised]
WASHINGTON - The Supreme Court on Thursday placed new limits on laws in Indiana and several other states that make it a crime for motorists suspected of drunken driving to refuse alcohol tests.[Revised at 3:03 pm] The Indianapolis Star, which published the AP story, has now appended this note to the beginning of the story:
The justices ruled that police must obtain a search warrant before requiring drivers to take blood alcohol tests, but not breath tests, which the court considers less intrusive.
The ruling came in three cases in which drivers challenged so-called implied consent laws in Minnesota and North Dakota as violating the Constitution’s ban on unreasonable searches and seizures. State supreme courts in each state had upheld the laws.
Drivers in all 50 states can have their licenses revoked for refusing drunken driving tests. The court’s ruling affects laws in eleven states that impose additional criminal penalties for such refusals. * * *
Other states that criminalize a driver’s refusal to take alcohol blood or breath tests include Indiana, Alaska, Florida, Louisiana, Nebraska, Rhode Island, Tennessee, Vermont and Virginia.
Editor's Note: An earlier version of this story incorrectly stated that Indiana motorists face criminal penalties if they refuse a blood test when under suspicion of drinking and driving. In addition, police and prosecutors in Indiana say authorities already secure a search warrant if a driver refuses to consent to a blood draw, meaning this ruling will not likely impact Indiana.Plus the Star has revised the original content of the story with respect to Indiana to read:
Other states that criminalize a driver’s refusal to take alcohol blood or breath tests include Alaska, Florida, Louisiana, Nebraska, Rhode Island, Tennessee, Vermont and Virginia, according to the Associated Press. In Indiana, a driver who refuses faces suspension of driving privileges, which is considered a civil penalty, said Chris Daniels, Traffic Safety Resource Prosecutor for the Indiana Prosecuting Attorneys Council.
Daniels also noted that police in Indiana have secured search warrants for blood draws since 2013, when another U.S. Supreme Court ruling addressed the issue.
"So in Indiana, this is not going to change how we do things at all," Daniels said.
Ind. Decisions - "7th Circuit decision favors women's health group over Citilink"
Yesterday's 7th Circuit opinion in Women's Health Link, Incorp. v. Fort Wayne Public Transportation (ILB summary here) is the subject of this story today by Rebecca S. Green in the Fort Wayne Journal Gazette. Some quotes:
An advertisement by a local woman's health group opposed to abortion rights can be displayed inside Fort Wayne's Citilink buses.
That is according to a ruling Wednesday by the U.S. Seventh Circuit Court of Appeals. The ruling overturns a January order by U.S. District Judge Robert L. Miller that found Citilink was within its rights to prohibit a series of advertisements that Fort Wayne Women's Health Link wanted to put on the city's buses.
"(Citilink's) refusal to allow Health Link's ad to be displayed is an unjustifiable, because arbitrary and discriminatory, restriction of free speech," wrote Judge Richard Posner in the opinion.
Filed two years ago by the Alliance Defending Freedom on behalf of Women's Health Link, the lawsuit accused the Fort Wayne Public Transportation Corporation of violating the constitutional rights of the organization by denying it permission to buy a series of small ads to run inside the buses. * * *
Citilink's policy allows public service announcements, but it can reject an ad if it contains false or misleading information or if it "advocates opinions or positions on political, religious, or moral issues," according to court documents.
The woman who submitted the advertisement on behalf of Women's Health Link was on the organization's board of directors and also was communications manager for Allen County Right to Life, according to court documents.
Women's Health Link and Allen County Right to Life share email addresses and a physical address.
According to its official website, "Women's Health Link is a free referral resource in Fort Wayne, Indiana, for women seeking physical, emotional, spiritual or mental health care."
Posner wrote that while it is now known Women's Health Link is pro-life, that is not revealed in the ad, and nothing in Citilink's policies "suggest a concern about what may lie behind an innocuous ad."
The higher court noted that the United Way is permitted to advertise, as are other organizations that urge vaccinations, health care, voting, and other issues.
"What is important is not what other advertisers are permitted to do but that Citilink's ad censorship policy is limited to ad content," Posner wrote. "The content of Health Link's proposed ad lacks the faintest suggestion of a political, religious, or moral aim or agenda." * * *
"Citilink's refusal to post the ad was groundless discrimination against constitutionally protected speech," Posner wrote.
It was unclear Wednesday evening if city attorneys intended to appeal the Seventh Circuit ruling to the U.S. Supreme Court.
Ind. Decisions - Court of Appeals issues 2 opinion(s) today (and 13 NFP memorandum decision(s))
For publication opinions today (2):
In Duane Harmon v. Gary Fisher , a 10-page opinion, Sr. Judge Garrard writes:
Duane Harmon appeals from the trial court’s judgment in a small claims action brought by him alleging false representation made on a real estate sales disclosure form about the condition of certain real estate sold to him by Gary Fisher. Finding that the judgment is not clearly erroneous, we affirm. * * *In Trondo L. Humphrey v. State of Indiana , an 18-page opinion, Judge May writes:
Here, the record reflects that Fisher had never lived in the house and held the reasonable belief that the house was on the city sewer system. He was not in possession of knowledge, which Harmon did not possess, such that he enjoyed a position of superiority over him. Indeed, the record reflects that both Harmon and Fisher were surprised to learn that the property located in the middle of the community was connected to a septic system. Thus, the record fails to disclose the necessary element of duty owed to Harmon. Consequently, Harmon’s claim, even if adequately preserved, fails.
Trondo L. Humphrey appeals the denial of his petition for post-conviction relief. As his trial counsel’s assistance was ineffective and his petition is not barred by laches, we reverse and remand. * * *NFP civil decisions today (5):
Humphrey did not seek post-conviction relief until fifteen years after his direct appeal was decided. The post-conviction court determined his petition was not barred by laches, and that was not clearly erroneous. * * *
[T]he post-conviction court, after having considered the State’s arguments and evidence, concluded the State had not met its burden to demonstrate prejudice as a result of Humphrey’s delay. We cannot say that judgment is clearly erroneous. See Armstrong, 747 N.E.2d at 1120 (for laches to apply, the State must prove both unreasonable delay and prejudice from the delay). As we cannot find clear error, Humphrey’s petition for post-conviction relief is not barred by laches. * * *
Humphrey’s counsel was deficient for not asking that the jury be correctly instructed that Brooks’ unsworn statement could be considered only for impeachment, for not objecting to the trial court’s incorrect instruction, for not tendering a correct instruction, and for erroneously telling the jury in closing argument that the statement could be used in deciding whether Humphrey was guilty. * * *
As Humphrey’s counsel’s performance was deficient and the deficiencies prejudiced Humphrey, we reverse the denial of Humphrey’s petition for post-conviction relief and remand for a new trial.
NFP criminal decisions today (8):
Courts - SCOTUS announces major rulings today
One is a 4-4 opinion, as the Reuters headline indicates: Supreme Court, split 4-4, blocks Obama immigration plan." The story begins:
The U.S. Supreme Court on Thursday dealt President Barack Obama a harsh defeat, splitting 4-4 over his plan to spare millions of immigrants in the country illegally from deportation and give them work permits, leaving intact a lower-court ruling blocking the plan.The opinion is U.S. v. Texas. Here is the one-line ruling.
Sam Hananel of the AP reports on the third major opinion:
The Supreme Court on Thursday placed new limits on state laws that make it a crime for motorists suspected of drunken driving to refuse alcohol tests.The opinion is Birchfield v North Dakota.
The justices ruled that police must obtain a search warrant before requiring drivers to take blood alcohol tests, but not breath tests, which the court considers less intrusive.
The ruling came in three cases in which drivers challenged so-called implied consent laws in Minnesota and North Dakota as violating the Constitution's ban on unreasonable searches and seizures. State supreme courts in each state had upheld the laws. * * *
In all three cases before the high court, the challengers argued that warrantless searches should be allowed only in "extraordinary circumstances." They said routine drunk driving stops count as ordinary law enforcement functions where traditional privacy rights should apply.
Justices Sonia Sotomayor and Ruth Bader Ginsburg said they would have gone further and required search warrants for both breath and blood alcohol tests. Justice Clarence Thomas dissented, saying he would have found both tests constitutional.
Ind. Gov't. - Bad news for chickens in Columbus!
Updating this ILB post from June 20th, headed "Urban chicken coops could soon find foothold in Region," Columbus Indiana seems to be headed in the other direction. Olivia Covington reports in the Columbus Republic headed "City votes to ban chickens within Columbus city limits":
See this very long list of earlier ILB posts on "urban chickens."
Chickens within the Columbus city limits could soon be forced to fly the coop if members of the Columbus City Council stand firm in a decision to prohibit farm animals from being kept as pets.
In a 5-2 vote on Tuesday, council members gave initial approval to an amendment to the city’s animal care ordinance that would designate chickens as farm animals. The amendment also would prevent residents living within city limits from keeping farm animals as pets.
The vote came after testimony from several people in the audience of the Cal Brand meeting room — where the council meeting was moved in anticipation of a large crowd gathered to discuss the animal care ordinance. Many said they have been keeping chickens on their properties within the city limits for years without any issues.
Wednesday, June 22, 2016
Ind. Decisions - 7th Circuit decides two Indiana cases today, including reversal of Ft.Wayne Citilink denial of ads by Women's Health Link on its buses
In Women's Health Link, Incorp. v. Fort Wayne Public Transportation (ND Ind., Miller), a 9-page opinion, Judge Posner writes:
The defendant, colloquially referred to as “Citilink,” is a municipal corporation that provides bus service in Fort Wayne, Indiana, and also has regulatory authority over advertisements both inside the buses and on the buses’ exterior. The plaintiff is a nonprofit corporation (which we’ll call Health Link for the sake of brevity) that provides health care for women in Fort Wayne. It wanted to post the following advertisement in Citilink’s buses: [photo]In Nancy Thomas v. Carolyn Colvin (ND Ind., Springmann, a 16-page, per curiam opinion, the panel writes:
Citilink refused to allow the ad to be posted. It forbids public service ads that “express or advocate opinions or positions upon political, religious, or moral issues.” Although the proposed ad did not express or advocate any such opinion or position, Citilink discovered that Health Link, although it provides a variety of uncontroversial health services, mainly in the form of referrals to providers of health care, is pro‐life and so suggests (though not in the ad) that women with unplanned or crisis pregnancies consider health care and related services that provide alternatives to abortion, such as adoption counseling. Since abortion is generally regarded as a moral issue, Citilink concluded that Health Link’s proposed ad was ineligible to appear in or on Citilink buses, even though the ad itself—as any reader of this opinion can see—contains not the faintest reference to abortion or its alternatives. * * *
Once a government entity has created a facility (the ad spaces in and on its buses, in this case) for communicative activity, it “must respect the lawful boundaries it has itself set.” Rosenberger v. Rector & Visitors of University of Virginia, 515 U.S. 819, 829 (1995). Citilink’s refusal to post the ad was groundless discrimination against constitutionally protected speech. Cf. Shuttlesworth v. City of Birmingham, 394 U.S. 147 (1969).
The judgment in favor of Citilink is reversed with instructions to enter judgment for the plaintiff enjoining Citilink’s refusing to post the plaintiff’s proposed ad in its buses.
Nancy Thomas applied for Supplemental Security Income in 2010 when she was 55 years old. An ad-ministrative law judge identified her medically determinable impairments as degenerative changes in her back and left shoulder, Graves’ disease, and dysthymic disorder (a form of chronic depression). But the ALJ concluded that these im-pairments do not impose more than minimal limitations on Thomas’s ability to work and denied her application. Thom-as disputes the ALJ’s omission of fibromyalgia from the list of impairments and contends that his conclusion about the severity of her physical impairments is not supported by substantial evidence. (She does not discuss the ALJ’s conclu-sion that she does not have a severe mental impairment.) We agree with both of Thomas’s contentions and remand the case for further proceedings.
Ind. Courts - The Roll of Attorneys, and the former Clerk of the Appellate Courts
On June 3rd the ILB posted "Court posts 21-page annual list of attorneys who have failed to comply with certain requirements," linking to this year's "Order of Suspension of Certain Attorneys for Failure to Pay Attorney Registration Fees, Failure to Comply with Continuing Legal Education Requirements, and/or Failure to Submit IOLTA Certifications."
A few days later, Indiana Legislative Insight wrote about this year's list:
More than 25 years ago, we were first to publicly report on the list, and you may be surprised to see at least one of the names from our first report show up on this current list. The 2016 suspension list includes a former Indiana attorney general, a former state director for a presidential candidate, a former U.S. Attorney, a former state legislator from a neighboring state, a general counsel for a state-supported university, and a former president of the city council from one of the state’s three largest cities.Which brings up a couple of caveats:
- Claiming not to have gotten notice because something went to the wrong address is no defense; you are affirmatively required to report address change to the Clerk, and you can offer additional/alternative addresses and emails for notice.
- If you retire, or die, be sure to notify the Clerk of the Appellate Courts. Otherwise, you may find yourself listed on the Roll of Attorneys as "Suspended." (see this 2010 ILB post).
The ILB has received emails several times over the years about esteemed deceased attorneys included on the annual list of suspended attorneys.
Kevin Smith joins Church Church Hittle + Antrim of Noblesville as a partner after more than a decade as the first non-elective clerk of the Indiana Supreme Court, Court of Appeals, and Tax Court, as well as service as the Supreme Court Administrator.
Courts - "NM Supreme Court restricts judges’ use of social media. Did it go too far?"
That is the heading to an interesting post yesterday on the New Mexico Appellate Law Blog, written by Emil I. Kiehne (who is, BTW, a Notre Dame grad). Here is a copy of the 38-page opinion in New Mexico v. Thomas.
[More] Thanks to How Appealing, here as another story that has turned up, just as I was posting. From the Santa Fe New Mexican, Andrew Oxford reports, under the heading: "State Supreme Court warns judges to be careful on social media." The long story begins:
Leaving a friend request on Facebook unanswered can be awkward, even for judges, but posting too much information can be especially tricky for members of the judiciary.
In a decision issued Monday, the New Mexico Supreme Court cautioned judges to think carefully about what they share and who they “friend” online, citing a series of cases around the country where social media drama spilled into the courtroom.
The decision in State v. Truett Thomas reverses an Albuquerque man’s convictions for murder and kidnapping because of the admission of Skype testimony that the court said denied the man his constitutional right to confront an adverse witness. The case was remanded for a new trial on the murder charge.
But Facebook posts about the case by a judge who presided over Thomas’ trial spurred Chief Justice Charles W. Daniels to devote several pages of a 38-page decision to social media ethics and etiquette.
Ind. Decisions - Supreme Court decides one today
In Dannie Carl Pattison v. State of Indiana, a 12-page, 5-0 opinion (including, for the first time, new Justice Slaughter), Justice Massa writes:
At Dannie Pattison’s trial for operating a vehicle with an alcohol concentration equivalent of 0.08 or more, his jury was instructed to presume his ACE at the time of the offense based on a chemical test conducted within three of hours of his being stopped by police. Tracking the language of Indiana Code section 9-30-6-15(b), the instruction told the jury it “shall presume,” yet also stated, “the presumption is rebuttable.” We are asked to decide whether that instruction improperly relieved the State of its burden to prove each element beyond a reasonable doubt, amounting to fundamental error. Finding no error in the trial court’s instruction, we affirm Pattison’s conviction. * * *
Because the presumption is rebuttable, a defendant is free to present evidence in his defense. For instance, he could show he consumed alcohol after driving. Chilcutt, 544 N.E.2d at 858. Or, he could posit another theory, as Pattison did here, that the test results were due to his inhaler use, a supposition his jury heard and rejected. Thus, whereas the mandatory rebuttable presumption of Francis merged two elements of the crime by allowing the defendant’s actus reus to serve as proof of the requisite mens rea, here the State must still show the defendant’s ACE (indeed, through rigid testing requirements) but is merely relieved of the need to re-litigate the ACE’s extrapolation across time for every such case of operating a vehicle with an ACE over 0.08. Instead, it is the defendant who bears the burden of coming forward with facts—generally already in his possession—that amount to an affirmative defense.
Considering the scientific context of the statute creating the presumption, we maintain that our “legislature has fashioned an inspection and certification scheme to insure the reliability of test results, thereby protecting the rights of the accused, while at the same time streamlining the trial process.” Platt, 589 N.E.2d at 230; see also State v. Greenwood, 115 S.W.3d 527, 532 (Tenn. Crim. App. 2003) (“The legislature obviously knew a blood alcohol test could not be conducted while the defendant was driving. We do not believe it intended to place upon the state the impossible burden of extrapolation in order to prove DUI.”). We decline to find this reasonable approach destroys a defendant’s right to due process.1
Conclusion. Because Instruction 6 did not shift the State’s burden of proof, we see no error, let alone error so fundamental as to preclude a fair trial. We thus affirm.
Ind. Decisions - Court of Appeals issues 2 opinion(s) today (and 1 NFP memorandum decision(s))
For publication opinions today (2):
In In Re: the Adoption of S.O., A.O., and N.O., P.P. v. A.O., a 13-page opinion, Judge Baker writes:
P.P. (Biological Mother) appeals the judgment of the trial court, which granted an adoption petition over her objection. In an attempt to hasten the adoption process, the trial court dispensed with the statutorily required criminal background check, and did not consolidate a pending paternity action with the adoption proceeding. Reminded of the maxim, “Wisely and slow; they stumble that run fast,” we reverse and remand with instructions to correct these errors. * * *In Ricky E. Arion v. State of Indiana, a 14-page opinion, Judge Baker writes:
We must pause our analysis to note a glaring deficiency in the instant case: we can find no mention in the record of any involvement of any licensed child placing agency or any Department of Child Services (DCS) office. Our General Assembly has required that every adoption case—whether done by stepparent, blood relative, or a nonrelative—involve either a licensed child placing agency or DCS. In general, every petitioner must have such an agency complete the period of supervision along with a report. I.C. § 31-19-8-1. Although the supervisory period and report can be waived for stepparents or grandparents, I.C. § 31-19-8-5(c), exercising that waiver then obligates the court to order an agency to conduct a criminal history check and complete a report. I.C. § 31-19-8-5(d). In sum, the absence of any child placing agency or DCS in this case means an error has occurred.
Ricky Arion appeals the trial court’s denial of his motion for discharge. Arion was serving a prison sentence for unrelated convictions when he was served with a warrant informing him of the present charges. He requested a speedy trial on multiple occasions, but the State made no attempt to try him for well over a year. The State now contends that because one of its officers failed to return the warrant to the trial court after serving it upon Arion, it was absolved of its responsibility to bring Arion to trial in a timely fashion in accordance with Indiana Criminal Rule 4. The State’s position is contrary to both the text and the purpose of the rule, which places an “imperative duty upon the state and its officers, the trial courts and prosecuting attorneys.” Zehrlaut v. State, 230 Ind. 175, 183-84, 102 N.E.2d 203, 207 (1951). Because we find that the delay in bringing Arion to trial was unjustifiable and that it exceeded the length of time allowable under Indiana Criminal Rules 4(B) and 4(C), we reverse and remand with instructions to dismiss the charges. * * *NFP civil decisions today (0):
We acknowledge that this case presents a factual scenario with which we have apparently not dealt before. Accordingly, we think it wise to confine our holding to the facts presented by this case and avoid making unnecessarily broad pronouncements. That being said, here we are certain that the clock began ticking for purposes of Rules 4(B) and 4(C) at the very least by January 27, 2014—that being the date that Arion filed his motion to reconsider that included a copy of the warrant and was properly filed in the trial court and served upon the State—as after that date the trial court and the State should have been aware that Arion was being held on the charges and was requesting a speedy trial. Well over a year passed from that time, during which Arion caused no delay, but was not brought to trial, until the time at which he filed a motion for discharge on July 10, 2015. Consequently, the trial court erred in denying that motion.
NFP criminal decisions today (1):