Tuesday, October 13, 2015
Ind. Courts - Marion County sign ordinance challenged in federal court
There has been interest in the lawsuit filed last week by GEFT OUTDOOR, LLC against Marion County. From the complaint:
Through this lawsuit, among other things, GEFT seeks to enjoin the Defendant from further restraining GEFT's First Amendment rights through continued application of the unconstitutional provisions of Defendant's Sign Ordinance (defined infra). Those provisions are content-based and suppress constitutionally protected political, noncommercial, and commercial speech on signs throughout the City, and have since at least 1995.The 30-page GEFT Complaint argues, inter alia, that the sign ordinance, the digital ban, and the highway digital ban violate the free speech clauses of the 1st amendment of the US Const., and Art. I, Sec. 9 of the Indiana Constitution, as well as the equal protection clause of the 14th amendment and Art. I, sec. 23 of the Indiana constitution. The accompanying 36-page GEFT brief supporting its motion for preliminary injunction is the more interesting reading.
Scott Olson of the IBJ had a good story on the law suit Oct. 9 - access it here.
In February Brian Easton of the Indianapolis Star had a very long story headed "Digital billboards under glare of ethics concerns in Indy." The lede:
A proposal to bring the bright lights of digital billboards to Indianapolis is flickering under a glare of scrutiny.The story was also linked in this Feb. 17, 2015 ILB post.
Here is the SCOTUSblog case page on Reed v. Town of Gilbert, last term's SCOTUS opinion relied on in the GEFT filings.
Here are two related ILB posts:
- Aug. 17, 2015 - More on "7th Circuit Invalidates Anti-Panhandling Ordinances After Reed v. Town of Gilbert"
- August 9, 2015 - "7th Circuit Invalidates Anti-Panhandling Ordinances After Reed v. Town of Gilbert"
Ind. Courts - Today was the ballot-selfie argument in federal court here
It is being heard by Judge Sara Evans Barker, who also presided over the Indiana voter ID case (Crawford) several years ago.
The ILB has several background posts. This one from Aug. 25th is headed Is Indiana law explicitly banning taking photographs in voting booth unconstitutiional? From Aug. 27th: ACLU of Indiana Challenges State Law Prohibiting Ballot "Selfies." And an update from the same day. (It appears the ILB never did get a copy of the complaint.)
Brandon Smith of Indiana Public Media attended today's federal court argument and reports:
The ACLU says an Indiana law barring voters from taking pictures of their ballot in the voting booth violates the First Amendment, but the state is countering that the legislature is trying to prevent voter fraud.Prof. Rick Hasen, of Election Law Blog, writes after reading Brandon Smith's story:
A federal court heard arguments Tuesday over the law’s constitutionality.
The state offered several potential problems the so-called “ballot selfie” law seeks to prevent: taking photos of one’s ballot could help facilitate buying and selling votes. Barring pictures of a ballot could also help prevent voter intimidation and coercion.
Simply put, the state argues that ballot secrecy has been vital for more than a hundred years, and the “ballot selfie” statute is a natural offshoot of an existing law that bars people from showing their ballot to others.
But Judge Sarah Evans Barker noted the state’s position, in her words, “wobbles” on its inability to show evidence of any of those problems; the state couldn’t provide examples of vote buying within the last 25 years.
And ACLU Indiana legal director Ken Falk says even if those problems existed, the law is still too broad.
“There’s no excuse for a law that bans taking pictures of ballots that aren’t completed or taking pictures of ballots that you never intend to share or that you’re going to share for completely innocent reasons,” he says.
Judge Barker says she plans to issue a ruling before the Nov. 3 election.
Oh, this is interesting. The same federal judge who found in the Crawford that Indiana could pass its voter id law despite any evidence that voter impersonation fraud was ever a problem in Indiana seems to think it is a problem that Indiana doesn’t have evidence of vote buying to support its anti-selfie law.
Will be interested to see how the judge purports to distinguish the cases.
Ind. Decisions - Court of Appeals issues 1 opinion(s) today (and 1 NFP memorandum decision(s))
For publication opinions today (1):
In Scott A. Criswell v. State of Indiana, a 26-page opinion, Judge Bradford writes:
At all times relevant to this appeal, Appellant-Defendant Scott Criswell was a Sergeant with the Fort Wayne Police Department (“FWPD”). Criswell attended a party at the home of another Fort Wayne police officer on August 10, 2013. While at the party, Criswell and the wives of two other Fort Wayne police officers are alleged to have forcibly entered a nearby home and removed certain items from the property. As part of a subsequent internal investigation by the FWPD, Criswell gave a statement regarding the events in question after signing a document which indicated that any statements made would not be used against him in any potential subsequent criminal action.NFP civil decisions today (0):
In May of 2014, Appellee-Plaintiff the State of Indiana (the “State”) charged Criswell with Class A misdemeanor criminal conversion and Class A misdemeanor criminal trespass. Criswell subsequently filed a motion to dismiss and/or suppress, arguing that the criminal charges against him should be dismissed because the charges were brought in violation of his Fifth Amendment privilege against self-incrimination, as well as the legal protections enunciated by the United States Supreme Court in Garrity v. New Jersey, 385 U.S. 493 (1967), and Kastigar v. United States, 406 U.S. 441 (1972). Alternatively, Criswell argued that his statement and any evidence derived from his statement should be suppressed. Following a hearing, the trial court denied Criswell’s motion.
Concluding that the trial court abused its discretion in denying Criswell’s motion to suppress, we reverse the ruling of the trial court. We remand the matter to the trial court with instructions for the trial court to grant Criswell’s motion to suppress his statement as well as any other evidence that was directly or indirectly derived from the statement.
NFP criminal decisions today (1):
William Ray Neeb v. State of Indiana (mem. dec.)
Ind. Gov't. - Horse manure in the news
This long, interesting Oct. 9th column by CNHI's Maureen Hayden, here in the Kokomo Tribune, begins:
INDIANAPOLIS – The new floor leader of Republicans in the House of Representatives is familiar with the manure of politics. Or, rather, the politics of manure.This interesting Oct. 5th story by Sheila Selman of the Goshen News focuses directly on the horse manure problem; the headline is "Stink raised in LaGrange County over horse manure on roads." Some quotes:
Before he was elected to the General Assembly seven years ago, Rep. Matt Lehman served 16 years as a councilman in rural Adams County – home to one of the largest concentrations of Old Order Amish in the country.
Religious freedom – a lightning-rod issue in the Legislature - wasn’t just an abstract concept.
Lehman respected the hardworking, frugal ethos of the Amish, whose presence brings tourists and their dollars into his community. But he routinely fielded calls from non-Amish complaining about the manure deposited by buggy-pulling horses of the Amish, whose faith calls them to eschew things of the modern world, including cars.
“I’d get more angry calls on horse manure on county roads than almost anything else,” Lehman said. “Now I get calls from people complaining about manure on state roads.”
LAGRANGE — A petition to require manure bags on horses drew more than 130 people into the LaGrange County Commissioners meeting room at the LaGrange County Building Monday morning.
More than half those in the audience were Amish — the target of a petition by LaGrange County resident Chad Fry, who along with a couple of thousand petitioners, hopes to eliminate horse manure in parking lots and roadways in LaGrange County.
“This isn’t about English vs. Amish,” Fry said. “It’s about respect and cleaner towns. It’s only going to benefit the community in the long run.”
Also presented to the commissioners were resolutions from the town councils of Shipshewana and Topeka in support of manure bags, keeping streets clean and waste out of the water. Shipshewana councilman Roger Yoder said after the meeting that towns could hardly have their own ordinances concerning manure. It would have to be countywide to be effective.
During his presentation, Fry said county officials have catered to the Amish with reduced speed zones in heavily Amish populated areas, buggy lanes on roads and hitching racks at businesses and government offices — all costing taxpayers money.
“We shouldn’t have to clean up after that,” he said. “We’re paying for the clean up as well.”
He also said there are health issues involved with manure. When it rains, there is runoff into lakes, fields and eventually drinking water. He pointed out that Shipshewana has a storm drain clogged because of manure. And people have to walk through brown water when it rains, tracking feces into businesses and homes.
Safety was another of Fry’s concerns. Motorists, particularly motorcyclists, could have accidents trying to avoid manure, he said. And if they don’t avoid the piles, motorists have to continually clean their vehicles. * * *
He pointed to Auburn, Kentucky, which passed an ordinance in 2014 requiring manure bags on horses. Fry presented what he believes is a cost-effective solution, a product called the Bun Bag. It attaches to the horse’s tail and when the horse poops, the bag catches it.
Members of the Amish community were not impressed with the device, but felt as Christians they should try to listen and work with their neighbors.
One Amish bishop, through Commissioner Larry Miller, offered to form a committee of Amish and English residents to study the matter and perhaps come up with a compromise. Fry accepted that offer.
“We understand it’s a problem,” said Atlee Miller of Topeka, “and we want to look at it in a fair way.” * * *
But they have to keep the safety of their families in mind.
Miller said they were not willing to risk their wives and children being injured if a horse became uncontrollable because the bag bouncing against its hindquarters felt like a whip.
“It could be nasty — very, very nasty,” Miller said.
Many of the horses hooked to buggies are former race horses, several Amish men explained after the meeting. These former racers are more sensitive and high strung than a draft horse.
Fry said during the meeting the horses would have to get used to the bag and he was supported in that by a resident who said he has trained horses for 35 years.
However, Fry said he has not been successful in trying out the Bun Bag to see if it would aggravate a horse. No one from the Amish community was willing to test it for him, he said. Several Amish men after the meeting said they were not willing to take that risk. If Fry wanted to pay for damages that could be caused by the horse, they would be willing.
Ind Law - "Valpo Law students win asylum for Eritrean man"
A long story today in the NWI Times, reported by Susan Emery, begins:
VALPARAISO | A man who was tortured for speaking out against his country’s government has received asylum in the United States, thanks to the tenacity of two Valparaiso University law school students.
Students Jordan Chelovich and Mayombo Mbanza won asylum this past summer for "Sam," from Eritrea, a country in Africa.
The Times has agreed not to identify Sam to protect his family in Africa from retaliation.
The case was undertaken through the law school’s Immigration Clinic, one of nine clinics designed to help students gain practical experience while providing free or low-cost legal services to those in need.
Ind. Gov't - " Trends in Juvenile Justice State Legislation 2011-2015"
From the National Conference of State Legislatures, a new report:
... illustrating the trends in juvenile justice enactments over the past five years. The new report describes the increasing momentum of state juvenile justice policy in recent years and catalogs the volume and variety of juvenile justice legislation enacted in states. It builds on an earlier “Trends Report” released in 2012 that highlights a decade of juvenile justice legislation over 2001-2011.
Ind. Decisions - Transfer list for week ending October 9, 2015
Here is the Clerk's transfer list for the week ending Friday, October 9, 2015. It is one page (and 24 cases) long.
Three transfers were granted last week:
- William R. Bowman v. State of Indiana - This was a May 26th opinion (4h case) where the COA concluded: "Because the State did not prove the product of the “controlled” buy was heroin, there was not sufficient evidence Bowman committed Class A felony dealing in a narcotic within 1,000 feet of a school. Accordingly, we reverse."
- Saundra Wahl v. State of Indiana - This was a 2-1, June 30th COA opinion (5th case) involving a day care facility, with the majority opinion affirming a conviction of involuntary manslaughter, followed by a dissent.
- Daniel Wahl v. State of Indiana - Same 2-1 vote as above, same judges, same date, 6th case.
Finally, there were two cases last week where transfer was denied by a 3-2 vote:
- Blue Chip Casino v. LaPorte County Treasurer - Review Denied-All Justices concur, except Rush, C.J., and David, J., who vote to grant the petition for review. This was a Tax Court opinion.
- C.P. v. State of Indiana - Transfer Denied-All Justices concur, except Rush, C.J., and Rucker, J., who vote to grant the petition to transfer.
Courts - More on: Chicago Tribune sues Mayor Emanuel over use of private email
Supplementing this ILB post from Oct. 12th, quoting a Chicago Tribune story, SFGate on Oct. 11th had this AP story by John O'Connor, dateline Springfield, Ill. The first thing you see is a photo with this heading:
FILE - In this Jan. 22, 2014, file photo, former University of Illinois Urbana-Champaign Chancellor Phyllis Wise speaks in Champaign, Ill. Illinois law is clear that government officials’ emails about work are public records. But what if they’re sent from personal accounts or cellphones? The Illinois attorney general and its appellate court have ruled that public business on private emails must be disclosed. Wise resigned when the university announced that her emails on private accounts had potentially been improperly withheld. (John Dixon/The News-Gazette via AP)Then the lengthy story itself begins:
Illinois law says government officials' emails about taxpayer business are public records for all to see. But what if they're sent from private accounts or personal cellphones?The story includes a link to City of Champaign v. Madigan, 2013 IL App (4th) 120662, and to the Illinois Freedom of Information Act.
Chicago Mayor Rahm Emanuel argues those are not for public consumption. The Chicago Tribune claims they are, and took the matter to court last month. Gov. Bruce Rauner had his own dust-up this summer over an aide's private emails, and the practice cost a University of Illinois chancellor her job in August.
The issue, once limited to scattered consternations over politicians playing fast and loose with new technology, is pervasive this year, beginning with revelations about Democratic presidential front-runner Hillary Clinton's use of a private email server to conduct business while she was U.S. secretary of state — a case that spurred a lawsuit by The Associated Press.
Public-access advocates insist Illinois law is clear, and the state's attorney general and appellate court weighed in just two years ago, declaring that public business is public record — no matter how it's conducted.
Ind. Courts - More on: No word yet on who Gov. Pence will appoint to Marion Co. Superior Court
And the message is the same: no word yet. Repeating from the Sept. 25th ILB post:
On Aug. 21st the ILB posted the names of the applicants for the then-upcoming Marion County Superior Court vacancy, caused by the Governor's naming of Judge Robert T. Altice to fill the vacancy caused by Judge Friedlander's retirement from the Court of Appeals, the end of August.
There has been no word yet of who Gov. Pence will name to the Marion County Superior Court vacancy.
Judge Altice took the oath of office for the Court of Appeals on Sept. 2.
Ind. Courts - Ted Boehm on potential changes to judicial section for the Marion Co. Superior Court
On Sept. 9th the 7th Circuit "upheld a district court ruling and declared that the method of electing Marion Superior Court judges is unconstitutional." See details in this ILB post and its links.
In the Oct. 10 ILB Forefront, former Indiana Supreme Court Justice Ted Boehm writes under the heading "A door opens for appointing Marion County judges." A few quotes:
The Legislature will get first crack at a new system, hopefully one that eliminates campaign finance and dependence on any interest group and also vets candidates for thoughtfulness, experience and patience.
Three versions of appointment from nominees by a nonpartisan commission have been used for some time in Indiana for the appellate bench and trial courts in two large counties. Improvements can be made in their details, but generally these merit systems have worked well. Those who know these courts overwhelmingly believe they improved the judiciary.
Concerns about merit appointment have proven unwarranted. Minority judges continue to be selected. The nominating commission can be structured to local needs and can be selected by multiple officials or groups to limit the influence of any one of them.
No judge’s term will expire before 2019. Although there is no immediate need to do anything, the Legislature will presumably act before then because inaction could leave the design up to the federal courts. We could have a plan even in 2016, because waiting until 2017 risks losing the iron grip of the current Republican supermajority on both houses of the Legislature.
A merit system has another virtue. Enactment of a plan that is not tested for compliance with the federal Constitution would risk invalidation by the courts without time to implement a new one. A merit system seems immune from court challenge. Alternatives being floated are less clearly constitutional with one exception—election of all 36 judges at large in the county. But that seems an improbable choice by a Republican Legislature for an increasingly Democratic county.
Law - Fund-raising in full swing for Kentucky AG contest
Joe Gerth's Oct. 10th column in the Louisville Courier Journal was headed "Money in AG race is devil of a problem." Some quotes:
Kentucky’s race for attorney general is a contrast in old school politics and modern politics.There is much more in the story. The Republican opponent, according to the story, is being funded by:
It’s also a case study for the potential of old school corruption and the potential for modern corruption.
Old school is Andy Beshear, the son of the governor and a Louisville corporate lawyer who is making his political money the old fashioned way: He’s traveling the state begging for it. And boy has it worked.
Thumb through his most recent fundraising report and you’ll see coal executives, road contractors and lawyers. Lots and lots of lawyers. * * *
Beshear has amassed a war chest of $2.7 million using a very structured campaign to go out and hit up friends of his father and people who do business with the state. In the process, he’s piled up more money than anyone has ever piled up in Kentucky for a down-ticket race. * * *
If you are a pessimist, you’d believe that raising the money that Beshear has raised opens the door for corruption, since many of the people donating to his campaign are still dependent on his father for government contracts and appointments, and many others could have cases involving the attorney general once Andy Beshear is swept into office.
If you’re an optimist, you might say that if Beshear works half as hard as attorney general as he has raising money, then he could be the best ever.
The Republican Attorneys General Association [, which] has sent $2.2 million to the Kentucky Republican Attorneys General Association to help him. The national group gets is funding largely from conservative groups, corporations and wealthy business people. * * *
Money, no matter where it comes from, can be a corrupting influence.Democrats believe that the Republican Attorneys General Association is prepared to sink up to $5 million into television ads and mailers in an effort to beat Beshear.
Both old-style fundraising and new-style fundraising can lead to political corruption. The question becomes, do you prefer the devil you know, or the devil you don’t?
Monday, October 12, 2015
Ind. Courts - More on "Former Lake Station Mayor Keith Soderquist asking for a new trial; claims the federal judge fell asleep twice"
HAMMOND | Former Lake Station Mayor Keith Soderquist and his wife had their petition granted for a different judge in their upcoming second criminal trial.
Keith and Deborah Soderquist claimed in court documents that U.S. District Court Judge Rudy Lozano fell asleep at times during their trial. A federal jury convicted the Soderquists on Sept. * * *
Lozano voluntarily recused himself in the case. In court documents he makes no admission of falling asleep during the Soderquists’ trial. The case has been referred to Senior Judge Philip P. Simon.
Courts - Chicago Tribune sues Mayor Emanuel over use of private email
The subhead of this Sept. 24th Chicago Tribune story by Steve Mills: "Tribune asks judge to order mayor to comply with FOIA request for emails, texts." A few quotes:
he Chicago Tribune filed a lawsuit Thursday alleging that Mayor Rahm Emanuel violated state open records laws by refusing to release communications about city business conducted through private emails and text messages.Indeed, the ILB also had a June 25th post about the earlier suit.
The lawsuit, filed in Cook County Circuit Court, asks a judge to order the mayor to comply with a state Freedom of Information Act request from the Tribune and produce the documents. The lawsuit also seeks to have Emanuel declared in violation of the Illinois Local Records Act for failing to preserve emails and texts he sent or received while doing city business.
The lawsuit claims that, in recent years, Freedom of Information Act requests from the Tribune to the mayor's office "have been met with a pattern of non-compliance, partial compliance, delay and obfuscation." Emanuel's use of private phones and personal email, the lawsuit alleges, allows the mayor to do the public's business without scrutiny and contributes to a "lack of transparency."
The lawsuit is the second the news organization has filed against the Emanuel administration in recent months. In June, the Tribune sued the mayor's office over its refusal to produce some email chains related to a multimillion-dollar no-bid Chicago Public Schools contract now at the center of a federal criminal investigation.
Courts - 6th Circuit blocks EPA proposal to expand federal protection of water and wetlands
Friday the 6th Circuit, by a 2-1 vote:
temporarily blocked an Environmental Protection Agency regulation that would bring more waterways and wetlands under federal protection, in the latest sign the effort could face an uphill legal battle.That is from a story Friday by Brent Kendall and Amy Harder of the WSJ. Another quote from the worth-reading $$$ WSJ coverage:
The order * * * was a preliminary boost for a group of 18 states that challenged the EPA regulation. The rule seeks to bring smaller bodies of water at the outer edges of watersheds under the Clean Water Act and was issued jointly with the U.S. Army Corps of Engineers.
“A stay temporarily silences the whirlwind of confusion that springs from uncertainty about the requirements of the new rule and whether they will survive legal testing,” said the majority on a three-judge appeals court panel.
The EPA has said the rule is necessary to clarify which waters should fall under the protection of the Clean Water Act after two Supreme Court rulings, in 2001 and 2006, called into question whether and to what extent 60% of U.S. waterways, especially smaller streams and wetlands, should fall under federal jurisdiction.An AP story in the NY Times explains:
Critics, including lawmakers and business and farming groups, say the new regulation amounts to federal intrusion upon states’ rights.
U.S. District Judge Ralph Erickson in Fargo, N.D., halted the rule's implementation in 13 central and Western states shortly before it took effect in August. Erickson said judges have wide discretion to craft their orders narrowly or broadly, but he declined to extend his order to additional states.ILB: Here is a copy of the 7-page stay in EPA v. Ohio.
The 6th circuit panel took a different approach, even while acknowledging uncertainty over which court was the proper venue for the legal battle. Judges David W. McKeague and Richard Allen Griffin — both appointed by Republican President George W. Bush — said delaying implementation nationwide "temporarily silences the whirlwind of confusion that springs from uncertainty about the requirements of the new rule and whether they will survive legal testing."
The legal challenges have "a substantial possibility of success," the judges said, adding that it was "far from clear" that the new regulations comply with guidelines in the Supreme Court's latest ruling in 2006. * * *
At issue in the ruling Friday is which smaller waterways — those not adjacent to navigable rivers or lakes — are subject to federal oversight under the Clean Water Act. The EPA contends Supreme Court decisions in 2001 and 2006 left 60 percent of the nation's streams and millions of acres of wetlands without clear federal protection.
Under the latest regulations, a business or landowner would need a permit to fill wetlands or otherwise damage affected waters with a "direct and significant" link to larger water bodies downstream that have legal protection.
Opponents such as the American Farm Bureau Federation said the provisions give federal officials power over even intermittently flowing streams that farmers use for drainage and irrigation — "nearly every pothole and ditch in our country," Senate Majority Leader Mitch McConnell of Kentucky said.
Ind. Decisions - Tyson and Zerbe sex offender registration cases rescheduled as separate oral arguments
Updating "Upcoming Oral Arguments," posted earlier today, the Supreme Court has issued this order, dated Oct. 7th:
On September 11, 2015, this Court issued an order scheduling a consolidated oral argument in these cases on Thursday, October 22, 2015. On October 2, 2015, Sidney Tyson and Scott Zerbe, by their respective counsel, filed a joint motion requesting their arguments be held separately. Being duly advised, the Court hereby GRANTS Tyson’s and Zerbe’s Joint Motion to Separate Oral Arguments, and RESCHEDULES their oral arguments.
Argument in Tyson v. State will be held on Thursday, November 5, 2015, at 9:45 a.m.
Argument in State v. Zerbe will be held on Thursday, November 5, 2015, at 10:30 a.m.
Each argument will be forty minutes in length, equally divided between the appellant and the appellee. The Court has granted transfer, and the appellant shall argue first.
Courts - Judge Easterbrook and 7th Cir. v. DC Circuit
Interesting post Saturday on Judge Easterbrook in the Yale Journal on Regulation Blog.
Ind. Courts - Still more on "Class Action Lawsuit to be Filed Over Inadequate Johnson County Public Defense System"
Updating this ILB post from Oct. 9th, which links to the complaint, Kristine Guerra of the Indianapolis Star had a long story Oct. 10 about the lawsuit, headed "Indiana inmates accuse public defenders of mishandling cases." Today Courthouse News has a story by David Wells, headed "Indiana's Overworked Public Defenders Assailed."
Law - "Jarrett Adams’ unlikely path from prison to lawyer" - now clerking for 7th Circuit
While [Jerrett] Adams had never been to college, he began studying the appeals process in the prison library.
He began to fully appreciate the flaws in his trial, and to notice patterns in other people’s cases.
“There were a lot of young black people in there as a result of bad representation, not knowing anything about the law, pleading guilty to cases where they shouldn’t have plead guilty,” he recalls. “I’m driven now, because not only do I want to prove my innocence, but I also want to advocate on behalf of those who I know were just like me.”
While most of the local appeals in his case had failed, Adams determined a federal appeal was still possible, if he could get outside help. He petitioned the Wisconsin Innocence Project.
Kevin Findley, who co-directs the project, recalls that while Adams did have legal grounds to appeal, the rules for winning are so tough, he was skeptical of taking the case.
“When my students came to me and said, ‘Let’s file this habeas petition,’ I said, ‘I know what the standards are in federal habeas,’” he recalls. Initially, he says he felt it “probably wasn’t worth the effort.” * * *
The court found Adams’ lawyer’s “failure to investigate” and refusal to present an available defense had prejudiced the trial – the argument Adams advocated. The court also ruled that given the “the relatively thin evidence” against Adams, in a fair trial, it was reasonably probable that “the outcome of Adams’ trial would be different.”
Findley says the victory made him think back to when he doubted whether a long-shot appeal was worth the effort. “I learned that’s not an excuse we should rely on very often,” he says. “You never know,” he adds, “when you’re going be successful in achieving justice.” * * *
Adams graduated law school in May and took the bar this summer. His path already reflects tremendous growth, but it’s what he’s doing this Fall that may be the most remarkable.
Adams just won a fellowship to clerk on the Seventh Circuit Court of Appeals – the very court that overturned his conviction.
Every morning, he walks through downtown Chicago and into the federal court that set him free. He says it’s “surreal.”
“I sit in the same court room, take notes, listen to the judge, observe the arguments,” Adams says, while “not too long ago, I listened as lawyers argued my case in front of these same three judges.”
Clerking for one of the 13 federal appeals courts is a coveted opportunity for any young lawyer. Loyola “occasionally send students to these clerkships,” notes Dean Yellen, “but it’s more often from the Harvards, and the University of Chicago, and places like that.”
Adams’ situation is especially rare. Michael Monico, who has practiced in the Seventh Circuit for 42 years, says he never heard of a former inmate clerking for the court that freed him.
Law - "A Former Heroin Dealer’s Second Chance"
The NY Times has a long, fascinating story today by Benjamin Weiseroct headed "A Defense Lawyer Draws on His Past as a ‘Three-Time Loser.’" A few quotes:
Mr. Haber, 75, is one of the more unlikely criminal defense lawyers in New York. For the last three decades, first as a public defender and then in private practice, Allan P. Haber has long represented the kind of hardened criminals who might seem beyond redemption.
As ethical lawyers must, he has always kept his clients’ secrets. But throughout his career, Mr. Haber has also kept tight guard of a secret of his own.
Mr. Haber was once a drug dealer, selling heroin in Midtown Manhattan, carrying a gun, running a stash house and earning thousands of dollars a day selling bundles of heroin through a network of distributors. He had 10 convictions in his 20s and early 30s, including three drug-related felonies.
It was not until he was in his 40s that Mr. Haber, fully disclosing his past during the application process, obtained college and law degrees from New York University and admission to the bar. * * *
Mr. Haber is hardly the only lawyer with a criminal record: New York, like almost every other state, does not automatically exclude felons from admission to the bar. But in contrast with his successful legal career, the length and severity of Mr. Haber’s criminal past stand out, especially to those unfamiliar with his background.
Ind. Law - More on: When must an Indiana attorney report the abuse of a child?
The ILB wasn't the first to report on this ethics opinion, the Sept. 11th ILB post points out (and credits) Samson Habte of Bloomberg, who had a long Sept. 4th story about this opinion.
The ILB post also noted:
The most recent case the ILB recalls re the requirement for the immediate reporting of child abuse was Christoper Smith v. State, involving a high school principal's duty to immediately report instances of suspected child abuse, in this case, an alleged rape.Today the Indianapolis Star has a front-page story by Marisa Kwiatkowski that begins:
Indiana law requires anyone who believes a child is being abused or neglected to immediately report it. Unless you are a lawyer.The story goes on to survey the reactions of lawyers who work with children to the ISBA opinion:
At least, that's the opinion of the Indiana State Bar Association's Legal Ethics Committee, which says lawyers may report suspected child abuse or neglect against their clients’ wishes only when they believe it necessary “
James Wide, spokesman for the Indiana Department of Child Services, said the opinion puts the safety of children at risk. Everyone — even therapists, doctors, teachers and ministers — is required to report suspected child abuse or neglect. People who fail to do so could be charged with a misdemeanor.
“No one’s exempt,” Wide said. “We can’t agree with that.”
Tim Stoesz, a longtime family law attorney, called the State Bar Association’s opinion “abhorrent.”
“I think the people who made this decision haven’t spent a lot of time in the real world of family law and seen the things that happen,” he said. “Attorney-client privilege is not more important than the health and safety of the child.”
Stoesz said the opinion allows lawyers to decide for themselves whether something rises to the level of “reasonably certain death or substantial bodily harm.”
“Is sexual contact between a teacher and students ‘substantial bodily harm?’ ” he asked. “What about child pornography?”
Sandy Runkle-DeLorme, director of programs at Prevent Child Abuse Indiana, said she is concerned that lawyers may not have had the training to be able to make that determination. Child neglect, in particular, can be a complex issue, she said.
Runkle-DeLorme pointed out that people also can report child abuse and neglect anonymously.
“Because it’s an opinion and not a change in legislation, I hope that people do what they need to do, which is follow the law,” she said.
The opinion makes it clear that it is just that — an opinion to give guidance to attorneys. The Indiana Supreme Court has final say over Indiana law and attorneys’ professional conduct.
Through a spokeswoman, Chief Justice Loretta Rush said she could not comment on the opinion because the matter could come before the Supreme Court.
Ind. Decisions - Upcoming oral arguments this week and next [Updated]
This week's oral arguments before the Supreme Court (week of 10/12/15):
- No oral arguments currently scheduled.
Thursday, October 22
- 9:00 AM - Michael Ackerman v. State of Indiana (49S00-1409-CR-770) At a bench trial held in 2014, the Marion Superior Court found that Ackerman committed second degree murder in 1977, and it sentenced him to life imprisonment with the possibility of parole. In this direct appeal, Ackerman argues that the trial court erred by admitting the 1977 autopsy report as evidence, by denying his motion to dismiss based on the delay in prosecution, and by considering the current sentencing range for murder in deciding the appropriate sentence for Ackerman.
- 9:45 AM - Lamont Wilford v. State of Indiana (49A02-1408-CR-534) Wilford, driving his sister’s car while his license was suspended, was stopped by police when they observed multiple equipment problems with the car. Wilford pulled off the road, parked on a nearby business’s property, and was arrested. Police impounded the car according to their procedure, they testified, because the car was in unsafe condition, the driver was arrested, and the owner was not present. During an inventory search of the car, police discovered a stolen handgun in the console. At a bench trial, the Marion Superior Court admitted evidence of the gun, and Wilford was convicted of carrying a handgun without being licensed and one other offense. The Court of Appeals affirmed, concluding the search was reasonable and there was sufficient evidence concerning the impoundment and inventory procedure. Wilford v. State, 31 N.E.3d 1023 (Ind. Ct. App. 2015), trans. pending. Wilford has petitioned the Supreme Court to accept jurisdiction over the appeal.
ILB: This was a May 7, 2015 COA opinion (3rd case).
- [Tyson and Zerbe rescheduled, see this post]
10:30 AM - Sidney Tyson v. State of Indiana (45S03-1509-CR-528), and State of Indiana v. Scott Zerbe (49S05-1509-MI-529) Tyson was charged with failure to register as a sex offender. The Lake Superior Court denied Tyson’s motion to dismiss the charge, and the Court of Appeals affirmed. Tyson v. State, 28 N.E.3d 1074 (Ind. Ct. App. 2015), vacated. In an unrelated matter, Zerbe petitioned the Marion Superior Court for removal of his sex offender designation, which the court denied. The Court of Appeals affirmed in a divided opinion. State v. Zerbe, 32 N.E.3d 834 (Ind. Ct. App. 2015), vacated. The Court of Appeals concluded in both cases that Indiana Code sections 11-8-8-5-(b)(1) and 11-8-8-19(f)—which require sex offenders who must register their home states to register in Indiana upon moving here—did not violate the Indiana Constitution’s ex post facto clause as applied to Tyson and Zerbe. The Supreme Court has granted petitions to transfer in both cases and has assumed jurisdiction over both appeals. The Court will hold a combined oral argument for the two cases, but otherwise has not consolidated the appeals per Appellate Rule 38(B).
ILB: Tyson was a March 3rd NFP decision where the COA ruled "Because Tyson had fair warning of the registration requirement, SORA was not an ex post facto violation as applied to Tyson."
Zerbe was a 2-1, May 29th COA opinion where the majority ruled: " Zerbe had fair warning of SORA’s registration requirement before he moved to Indiana, and SORA imposed no additional punishment because he was already required to register in Michigan."
Webcasts of Supreme Court oral arguments are available here.
This week's oral arguments before the Court of Appeals (week of 10/12/15):
Tuesday, October 13
- 1:30 PM - Patchett v. Lee (29A04-1501-CT-1) On July 5, 2012, Ashley N. Lee and Mary K. Patchett were involved in an automobile accident. Lee sustained serious injuries, and Patchett admitted fault for the accident. Lee was billed a total of $87,706.36 to treat her injuries by her medical providers. At the time of the accident, Lee was insured under the Healthy Indiana Plan ("HIP"), which paid Lee's medical providers a total of $12,051.48 in full satisfaction of her bills. Lee filed a complaint for damages against Patchett, and, while a jury trial was pending, Lee filed a motion in limine seeking to prevent Patchett from introducing evidence of the HIP payments. The motion was addressed at a pretrial conference, and on Oct. 16, 2014, the court issued an order granting Lee's motion. Patchett brings this discretionary interlocutory appeal from the court's order, arguing that evidence of the amount paid by HIP in full satisfaction of Lee's medical bills was admissible to prove the "reasonable value of medical services," which is the amount of damages Lee is entitled to recover, under the Indiana Supreme Court's opinion in Stanley v. Walker, 906 N.E.2d 852 (Ind. 2009), and the collateral source statute, Ind. Code Section 34-44-1-2. The Scheduled Panel Members are: Judges Riley, Brown and Altice. [Where: Court of Appeals Courtroom (WEBCAST)]
- 1:00 PM - Wartell v. Lee (87A01-1501-PL-38) Dr. Michael Wartell ("Wartell"), former chancellor of Indiana University Purdue University Fort Wayne ("IPFW"), filed a complaint against Lawrence Lee ("Lee") alleging, among other claims, defamation per se based on the contents of private letter that Lee sent to former Purdue president Dr. France Cordova ("Cordova") urging her to deny Wartell's request for an exception to Purdue's retirement policy. The letter generally remarked concerning Wartell's character and integrity, and Wartell's request for an exception to the policy was denied, requiring him to retire.
Lee filed a motion for summary judgment, and the trial court granted his motion on Wartell's claim of defamation per se. Wartell now appeals. The sole issue for our review is whether the trial court erred in concluding that Lee's statements made in the letter to Cordova did not constitute defamation per se as a matter of law.
The Scheduled Panel Members are: Judges Mathias, Barnes and Crone. [Where: Allen County Courthouse, Courtroom 1, Fort Wayne, IN]
[ILB: Here is a long list of earlier posts on the Wartell litigation.]
Monday, October 19
- 1:00 PM - Devereux v. DiBenedetto (49A02-1411-CT-780) Timothy Devereux appeals from the denial of his motion for summary judgment. Rene DiBenedetto sued Devereux based on his employment with William Conour, who was involved in a scheme to steal client funds; DiBenedetto was a victim of this crime. Devereux argues in his motion for summary judgment that DiBenedetto's claim is barred by the statute of limitations based on the contract she signed with the Conour Law Firm, LLC, changing the statute of limitations for actions related to the legal representation to one year. DiBenedetto argues that her claims against Devereux are not subject to the one-year statute of limitations because he was not a party to the contract and the contract provided that there would be no third-party beneficiaries. The Scheduled Panel Members are: Chief Judge Vaidik, Judges May and Robb.. [Where: Court of Appeals courtroom (WEBCAST)]
Tuesday, October 20
- 12:50 AM - Rick Sasso, M.D., and See LLC v. Warsaw Orthopedic Inc., Medtronic Sofamor Danek Inc. and Medtronic Inc. (43A04-1504-PL-175) In this case, Rick Sasso and SEE LLC are appealing the trial court's grant of summary judgment against them. They argue that the defendants, medical device manufacturers, were bound under a 1998 contract to pay either 2.5 percent or 5 percent of all the revenues defendants made selling a spinal stabilization device. Defendants argue that the 1998 agreement was never completed and that, instead, they did business with Sasso in the following years pursuant to new agreements, and, therefore, Sasso has already been compensated. The Scheduled Panel Members are: Judges Baker, Robb and Sr.Judge Shepard. [Where: Purdue University Krannert Center, Room 124, 425 W. State St., West Lafayette]
- 1:00 PM - NO NAME PROVIDED (____) An Indianapolis Police Department officer initiated a traffic stop of a truck driven by Phillip Whitley after the officer determined that the license plate displayed on the truck was registered to another vehicle. During the stop, Whitley was unable to produce a vehicle registration or a valid driver's license, and the officer determined that the truck was not registered to Whitley; therefore, the officer decided to impound the truck. An inventory search of the vehicle was conducted at the scene, before the truck was impounded, and an officer found a decorative box containing methamphetamine and a pill bottle containing methamphetamine, two Alprazolam pills, and eight Clonazepam pills, both of which are Schedule IV controlled substances. Whitley was subsequently charged with Class A felony dealing in methamphetamine, Class C felony possession of methamphetamine, Class D felony possession of a controlled substance, and Class A misdemeanor driving while suspended. The Scheduled Panel Members are: Chief Judge Vaidik, Judges Mathias Barnes. [Where: Indiana Tech Law School, 1600 E. Washington Blvd., Fort Wayne]
The past COA webcasts which have been webcast are accessible here.
NOTE: For a printable version of this list of upcoming oral arguments, click on the date in the next line. Then select "Print" from your browser.
Saturday, October 10, 2015
Courts - "Michigan Pays $1.9M in Legal Fees in Same-Sex Marriage Case"
Zoe Tillman of The National Law Journal reported Oct. 8 in a story that begins:
The state of Michigan will pay $1.9 million in legal fees to lawyers who successfully challenged the state’s ban on same-sex marriage. It is the single largest payout to date by a state in the federal court marriage cases.ILB: Recall this detailed June 6th ILB post on the payout in Indiana.
The state will pay all of the fees that the challengers asked for in court papers filed in July. By reaching an agreement, the state avoided a potential fee “enhancement” that the challengers asked U.S. District Judge Bernard Friedman in Detroit to consider based on their “exceptional success” in the case. * * *
[Carole Stanyar, a lead attorney for the challengers and a solo practitioner in Ann Arbor, Michigan] will receive $763,875 for the more than 2,000 hours she spent working on the case, the largest single share of the fees in the Michigan case. Mary Bonauto of Gay & Lesbian Advocates & Defenders (GLAD) in Boston, who argued for the challengers in the Supreme Court, will receive $278,845. * * *
Other states to hit the $1 million mark in federal court cases have included Pennsylvania, which reached a $1.5 million settlement; Wisconsin, which reached a $1 million settlement; and Indiana, which has agreed to pay more than $1.4 million.
Michigan is the first state to reach an agreement on fees of the four states that were part of the same-sex marriage litigation in the U.S. Supreme Court. In June, a divided Supreme Court declared a national right to same-sex marriage. The high court took up the issue after the U.S. Court of Appeals for the Sixth Circuit upheld bans in Michigan, Ohio, Kentucky and Tennessee.
Friday, October 09, 2015
About this Blog - Welcome to the Indianapolis Bar Association (IndyBar)
The Indianapolis Bar Association has joined the Indiana Law Blog's list of front-page supporters.
Already on the list are:
- Doxpop: Court records on line (ILB supporter since 4/1/08)
- ISBA Litigation Section (ILB supporter since 7/1/10), and
- Indiana Trial Lawyers Association (ITLA) (ILB supporter since 7/1/15).
Think about joining up!
Law - "California cops, want to use a stingray? Get a warrant"; What About Indiana?
A story posted last evening on ArsTechnica, reported by Cyrus Farivar, begins:
On Thursday, California Governor Jerry Brown signed a bill into law that requires police get a warrant to use a stingray during investigations. The devices, which are also known as cell-site simulators, are usually used to locate a phone but can also in some cases intercept calls and text messages.The ILB has had a number of posts on the "stringray" and other law enforcement surveillance, most recently this long post on Sept. 29th.
The law, known as the California Electronic Communications Privacy Act, imposes other sweeping new requirements to enhance digital privacy, and imposes a warrant requirement before police can access nearly any type of digital data produced by or contained within a device or service.
"Governor Brown just signed a law that says ‘no’ to warrantless government snooping in our digital information. This is a landmark win for digital privacy and all Californians," Nicole Ozer, a lawyer with the American Civil Liberties Union of California ACLU, said in a statement. "We hope this is a model for the rest of the nation in protecting our digital privacy rights." * * *
California is by no means the first state to impose such a requirement, but as the most populous state it the union, it will surely have an outsized effect. Others states that already have similar laws include Washington, Virginia, Minnesota, and Utah. [ILB: the story includes links to each state's statute]
The latter part of a long lead article in the 9/17/15 issue of Indiana Legislative Insight ($$$) also dealt with the use of stringray technology in Indiana and how our General Assembly has dealt with it so far.
Ind. Decisions - Court of Appeals issues 1 opinion(s) today (and 3 NFP memorandum decision(s))
For publication opinions today (1):
In Allen Gray Limited Partnership IV v. Bishop Mumford, Christopher Mumford, Elizabeth B. Mumford, Richardson S. Mumford, Thomas F. Mumford, Jr., and William M. Mumford, an 8-page opinion, Judge May writes:
Allen Gray Limited Partnership IV (“Allen Gray”) appeals a summary judgment for Bishop, Christopher, Elizabeth, Richardson, Thomas, and William Mumford, (collectively, “Mumford”), who sold mineral rights to Allen Gray but reserved the rights to oil and gas from certain producing wells. As the reservations were for a defined area and did not limit Mumford to oil and gas produced under existing permits, we affirm. * * *NFP civil decisions today (0):
The trial court correctly determined the reservation applied to the surface area of the “drilling unit,” and did not restrict Mumford from making the reserved wells deeper. Summary judgment for Mumford therefore was not error, and we affirm.
NFP criminal decisions today (3):
Ind. Courts - More on "Class Action Lawsuit to be Filed Over Inadequate Johnson County Public Defense System"
Here is a lenthy story filed yesterday evening by Annie Goeller of the Daily Journal that begins:
A lawsuit filed against Johnson County judges, commissioners and attorneys questions the way public defenders are paid, who oversees them and how many cases they handle at once.
Under the current system in the county, in which judges hire local attorneys, public defenders have caseloads that are too large to properly represent their clients and are unable to question or challenge the judges overseeing the cases, who also are their bosses, the lawsuit filed in Marion County claims.
One public defender had a caseload of 176 felony cases and 32 misdemeanors last year, more than twice the recommended amount for part-time attorneys. Some suspects reported not seeing their attorney for months at a time, not getting responses to requests for a speedy trial and feeling pressured to plead guilty in order to move the case along, according to the lawsuit.
That’s why Johnson County and other counties statewide must change the way they offer public defender services, attorneys who filed the lawsuit said.
Johnson County is likely no worse than other counties around central Indiana or the state but was chosen for its proximity to Indianapolis and because records showing the caseloads of local public defenders were easily accessible, according to Jonathan Little, one of the Indianapolis attorneys who filed the lawsuit.
The goal of the lawsuit, which was filed on behalf of seven local offenders and any others represented by public defenders, is to prompt change statewide, the attorneys said.
They also filed a separate petition with the Indiana Supreme Court, asking the justices to declare that the way Johnson County is offering public defender services is unconstitutional, Little said. And if this lawsuit doesn’t prompt statewide change, more lawsuits could be filed in other counties, he said.
“If Johnson County is being unconstitutional, then other counties would hopefully see that, too,” Little said.
Thursday, October 08, 2015
Ind. Courts - Suspended Goshen lawyer fined and held in contempt for practicing while suspended
In In the Matter of: Joseph Lehman, a 2-page order filed yesterday, the Court writes:
[T]the Commission alleges Respondent entered his appearance as counsel for the mother in a paternity action on or about the date his active suspension began, and, two months later (after the court had ordered Respondent’s appearance be withdrawn due to his suspension), Respondent filed with the court a minute entry purporting to represent the mother as her “translator” and requesting a final hearing be set. The Court issued an order to show cause on September 1, 2015, and Respondent filed a response on September 10. Respondent largely does not dispute the salient facts but denies those facts constitute the practice of law in violation of his suspension.Tori Fater of the Elkhart Truth has this story, posted yesterday afternoon, that includes:
This Court has not attempted to provide a comprehensive definition of what constitutes the practice of law. See Matter of Patterson, 907 N.E.2d 970, 971 (Ind. 2009). Nevertheless, it is well-established that the “practice of law includes making it one’s business to act for others in legal formalities, negotiations, or proceedings.” Id. (citing Matter of Mitthower, 693 N.E.2d 555, 558 (Ind. 1998)).
It is not entirely clear from the parties’ submissions whether Respondent’s initial filings in the paternity action as counsel for the mother occurred on the first day of Respondent’s suspension or on the previous day. However, we conclude that the minute entry requesting a final hearing, which Respondent filed on the mother’s behalf purportedly as her “translator,” unquestionably constitutes the practice of law during his suspension. Accordingly, we find that Respondent is guilty of indirect contempt of this Court.
This Court has inherent and statutory authority to punish contempt of court by fine and imprisonment. Mittower, 693 N.E.2d at 559. Under the circumstances, the Court concludes that a fine of $500 is appropriate discipline for the contempt in this particular case.
During a bench trial Sept. 28, Lehman argued that he only gave “general instruction” to those clients, the Prosecutor’s Office says. However, prosecutors say he took cash payments from at least two clients in exchange for legal advice.
Judge David Bonfiglio of Elkhart Superior Court 6 on Tuesday found Lehman guilty of three counts of practice of law by a non-attorney, a Class B misdemeanor, the Prosecutor’s Office says. Though Lehman argued he only provided legal instructions that could have easily been found online and was not practicing law, the judge was unconvinced.
“All of the victims sought out an attorney they believed was an attorney in good standing,” Bonfiglio wrote.
Ind. Decisions - Court of Appeals issues 1 opinion(s) today (and 8 NFP memorandum decision(s))
For publication opinions today (1):
In Robert E. Quinn v. State of Indiana, a 14-page opinion, Sr. Judge Barteau writes:
Quinn argues that Indiana Code section 35-41-4-2(b)’s DNA extension to the statute of limitations violates federal and state constitutional prohibitions of ex post facto laws. Quinn did not present his ex post facto constitutional claims to the trial court. Instead, when Quinn moved to dismiss the charges of child molesting and criminal confinement, he alleged only that the State violated the statute of limitations. He did not present ex post facto claims at the evidentiary hearing on the motion to dismiss. Thus, he has procedurally defaulted his ex post facto claims for appellate review. See Saunders v. State, 848 N.E.2d 1117, 1122 (Ind. Ct. App. 2006) (constitutional claim waived for appellate review; defendant had presented a different claim to the trial court), trans. denied.NFP civil decisions today (3):
Waiver notwithstanding, the DNA extension to the statute of limitations does not impose a punishment for an act that was not punishable at the time, nor
does it impose an additional punishment to that which was then prescribed. The DNA extension does not violate federal or state constitutional prohibitions of ex post facto laws. * * *
Next, Quinn argues that the State failed to act with due diligence in discovering the DNA evidence that led the State to charge him with child molesting and criminal confinement. [ILB - the charges resulted from a 1988 "cold case" investigation] * * *
Under the facts and circumstances of this case, the State’s employees acted reasonably in the manner in which they maintained, discovered, and tested the DNA evidence that led to Quinn’s convictions, thereby establishing the due diligence requirement of Indiana Code section 35-41-4-2(b). Quinn’s request to vacate his child molesting and confinement convictions must fail.
NFP criminal decisions today (5):
Ind. Courts - "Class Action Lawsuit to be Filed Over Inadequate Johnson County Public Defense System"
The ILB yesterday received a news release announcing a press conference to occur this afternoon in Johnson County. From the release:
On October 8, 2015, Kenneth Alford and other individuals incarcerated in the Johnson County Jail will join together to sue the Johnson County Commissioners, all of the judges in Johnson County, and all of the Johnson County public defenders for their failure to provide adequate representation in the criminal justice process. These individual are presumed innocent, and as accused enjoy the right to defense in all criminal cases under the United States and Indiana Constitution.The release concludes by pointing out that "not that long ago, the salaries of judge judges, prosecutors, and family services were supported by the taxes from the local counties. Those services became the responsibility of the state and placed under the administration of a uniform service with standards and accountability."
As enunciated in the landmark decision of the United States Supreme Court in Gideon v. Wainwright, and in many cases that follow, the provision of an ineffective defense attorney is in fact a violation of the right to adequate and proper representation.
They bring this action on behalf of all others who are currently being represented by public defenders in the Johnson County courts. They challenge the failure of the circuit court and the various superior courts to properly fund and provide adequate support for public defenders.
It is the hope that they will find a remedy that will reform the Johnson County public defense system. It is also the hope of the individual inmates that this lawsuit will spark interest in the larger question of public defender services throughout the entire state, and that, like other states (including neighboring Kentucky), the State of Indiana will adopt a state-wide approach that is not reliant on county funding.
The ILB will post the complaint when it is made available. [Now available here]
Ind. Courts - Still more on "Couple wrongfully accused of child death settles for $31M"
"The DCS essentially took an incredible tragedy and made it worse," said attorney Richard Waples, who also represented the Knox family.
DCS spokesman James Wide referred all questions to the Indiana attorney general's office, which represented state officials in the lawsuit.
Bryan Corbin, spokesman for the Indiana attorney general's office, said state officials "acted reasonably under the circumstances, based on the information available to them at the time, and consistent with the state’s duty to protect children and enforce laws for public safety."
Corbin pointed out that the jury awarded the family $70 million less than what the Finnegans' attorneys had asked for. He said the attorney general's office, which represents state government in about 2,700 civil lawsuits per year, is considering whether to appeal the verdict or seek a reduction in the monetary award.
Ind. Courts - HEC files suit challenging the Constitutionality of State’s Right to Farm Laws
Some quotes from yesterday's news release:
(DANVILLE, IN)- The Hoosier Environmental Council filed suit in Hendricks County Superior Court today, with the aim of protecting long-suffering rural families and, more broadly, to challenge the constitutionality of Indiana’s so-called Right to Farm laws.The ILB has obtained a copy of the 19-page, worth reading in full, complaint in Himsel v. Himsel.
The plaintiffs in the case include a retired farm family from Hendricks County whose quality of life and property values have been greatly diminished due to air pollution and extreme odors from a newly built concentrated animal feeding operation (CAFO) with 8,000 hogs. Unfortunately, Indiana’s Right to Farm Act (RTFA) and a new “right to farm” law passed in 2014 (SEA 186), provide special legal protections to industrial-scale livestock operations that effectively eliminate the ability of retired farmers and other long-time rural residents, like the plaintiffs, to protect their homes and families from the life-disrupting pollution of a nearby CAFO.
“Our family has lived on this property and farmed it for generations,” said Richard Himsel, one of the named plaintiffs. “I grew up on this farm and my wife and I raised our children here. But this CAFO has literally ruined our lives. The odors are so foul and so invasive, that it makes it difficult to eat or sleep, our throats hurt constantly, we have to keep the windows and doors closed all the time, and we can’t even sit outside and enjoy the fresh air because there isn’t any. My wife now lives with our daughter because my wife can’t take it anymore. No one wants to buy our property because of the smell, so we can’t even move away – we’re prisoners in our own home.”
“Indiana’s Right to Farm laws can be profoundly harmful to rural Hoosiers like the Himsels who, in many cases, have lived in their homes for decades, and suddenly find themselves living next door to thousands of animals that produce the same amount of raw sewage as a small, town would,” said Kim Ferraro, senior attorney with the Hoosier Environmental Council. “A favorable court ruling in this case will not only end our clients’ suffering and restore their property rights, but will also restore balance in Indiana policy with respect to agriculture so that the rights and interests of rural Hoosier families are given equal protection and no longer take a back seat to the special interests of the corporate livestock industry.”
Indiana’s Right to Farm Act (RTFA) was originally enacted in 1981 in response to urban sprawl – to prevent urban/suburban newcomers to rural areas from suing farmers because they don’t like the ordinary smells of agriculture. But farmers generally no longer raise livestock in traditional pasture settings. Now, primarily, contract growers confine thousands of animals in warehouses controlled by giant corporations. These giant corporations, not traditional family farmers, are the ones unfairly protected by the RTFA. Also, due to the powerful livestock agriculture industry lobby, the RTFA was amended to prevent longtime rural residents -- including retired farmers who didn’t move to the country but were there first -- from defending themselves when a CAFO moves in next door.
Making matters worse, Indiana lawmakers recently passed SEA 186 to require regulators and courts to interpret and apply state law in a way that does not impede -- and in fact protects -- the livestock industry’s use of its preferred industry practices which include the use of CAFOs. No other industry or economic sector enjoys the privilege of knowing state government agencies and courts must interpret the law to serve and protect that industry’s special interests and both laws violate Plaintiffs’ equal protection and due process rights, and amount to an unconstitutional taking of their property rights.
Almost all states have some sort of Right to Farm laws on the books originally intended to protect real farmers. But with the transformation of farming to a corporate-controlled industry, some states are rethinking whether such laws are fair and still serving their intended purpose. In 1998, Iowa became the first state to repeal its Right to Farm Act.
The Indianapolis Star this morning has a long story by Kristine Guerra about the lawsuit. Some quotes:
[Richard] Himsel, his wife, Janet, and two neighbors are suing 4/9 Livestock LLC, located less than a mile from his property, as well as his cousin, Sammuel Himsel; and his children, Cory and Clinton Himsel, who operate 4/9 Livestock.The ILB has had a number of posts over the years re statutes and case law on the "right to farm" in Indiana, as well as on legislative efforts to continue to expand it, including by constitutional amendment. The most recent post may be this July 24, 2014 post on the Randolph County Maxwell Farms cases.
Himsel said the problem began about two years ago, when the livestock company operated by his relatives built a concentrated animal feeding operation, or CAFO, next door to his home. The feedlot included two 33,500-square-foot buildings that warehoused up to 8,000 hogs and collected, stored and disposed of millions of gallons of feces and urine in the fields near Himsel's property, according to a 19-page complaint filed in Hendricks Superior Court.
Himsel is one of four plaintiffs who are alleging that the presence of the feedlot near their properties have diminished the quality of their lives. The civil lawsuit also challenges the constitutionality of Indiana's Right to Farm laws, which, the complaint says, unfairly protects giant corporations and industrial-scale livestock operations. The nonprofit Hoosier Environmental Council filed the lawsuit on behalf of the plaintiffs Wednesday.
Himsel came from a farm family. He owns a 26-acre farm in rural Danville where he planted crops and raised livestock until he retired in 2000. He now lives alone in the two-story wooden home he inherited from his parents. His children have moved out and so did his wife, who now lives with her daughter. Himsel said the odor coming from the livestock less than a mile southwest of his home causes his wife to have headaches and a sore throat. * * *
The lawsuit alleges that the defendants built the feedlot close to where people live, despite the health hazards involved. Such facilities generate large quantities of wastes, as well as air pollutants, such as ammonia, hydrogen sulfide and methane, the suit says. Health problems could include bronchitis, pulmonary disease and asthma.
More broadly, the lawsuit says, Indiana's Right to Farm laws, which are meant to help farm families, only protects the interests of giant corporations that control contract growers confining thousands of animals. * * *
The state's Right to Farm Act, in particular, which was originally enacted to protect farmers from lawsuits by urban and suburban residents who moved to rural areas, now protects conglomerates, not individual farmers, Ferraro said.
"No other industry or economic sector enjoys the privilege of knowing state government agencies and courts must interpret the law to serve and protect that industry's special interests," according to the lawsuit, which also alleges violation of the plaintiffs' equal protection and due-process rights.
The property where the feedlot is located also was not zoned for a massive agricultural operation. That property was zoned agricultural residential. But the defendants, according to the complaint, received approval in 2013 from the Hendricks County Commissioners to rezone the property to allow for a more intense agricultural operation.
Construction of the feedlot was finished in September 2013 and about 8,000 hogs were moved in the following month.
The plaintiffs are seeking compensatory damages. They're also asking the court to issue an injunction ordering the defendants to end what they say has been a nuisance.
Another, even longer list of related ILB entries is found via a search for the term "CAFO".
Ind. Gov't. - "St. Joseph Co. Democrats file public records complaint against county commissioners"
From WNDU.com yesterday, this story that begins:
On Wednesday, the St. Joseph County Democrats, along with Indiana Public Access Counselor Luke Britt, filed a formal complaint against the St. Joseph County commissioners.ILB: The story, which may be based on a news release, links to a packet of correspondence which (despite the lede) appears to indicate only that a formal complaint was filed with the Public Access Counselor on Oct. 7th.
The complaint involves the commissioners' alleged attempt to charge an excessive fee for access to public records, denying an in-person inspection of public records, and having delayed access to public records beyond "reasonable" timeframe limits.
The original request to access public records was filed on September 3.
The request centered around Commissioner Deb Fleming's proposed plan to eliminate voting locations ahead of the 2016 elections.
Since then, the Democratic Party says in-person inspections have been denied, and the commissioners attempted to charge between $2,000 to $5,000 for records.
Still, no records have been provided.
“We have no choice but to file a formal complaint at this time," explains Democratic Party Chairman Jason Critchlow. "It has been nearly five weeks and no records have been provided. Does that seem reasonable to the average person? This should have been simple and straightforward, but I’m forced to believe Commissioner Fleming is intentionally stalling a taxpaying citizen’s fundamental right to inspect public records.”
Wednesday, October 07, 2015
Ind. Courts - More on "Couple wrongfully accused of child death settles for $31M"
The award, while large, is $70 million less than the total that the couple’s lawyers had asked for in their final arguments, [AG office spokesman Bryan Corbin] said. The jury denied the couple’s request for punitive damages and awarded compensatory damages only.ILB: The ILB has obtained a copy of the 95-page, 6/20/12 amended complaint filed in the ND of Ind. It concluded:
308. For each violation of 42 U.S.C. § 1983, Plaintiffs Roman Finnegan, Lynnette
Finnegan, Johnathon Abair, Tabitha Abair, and Katelynn Salyer seek to recover the following:
1. compensatory damages in an amount to be determined by a jury;
2. punitive damages in an amount to be determined by a jury;
3. reasonable attorney and expert fees pursuant to 42 U.S.C. § 1988;
4. an injunction against DCS, Dr. Laskey and/or Dr. Cavanaugh making any
determinations on the cause and manner of death in pediatric injury cases; and
5. any further relief that may be appropriate.
Ind. Courts - "New court gives struggling vets a 2nd chance"
Vic Ryckaert of the Indianapolis Star reported Oct. 2:
The Indianapolis Veterans Court, which opened Friday, will be able to give [veternas] a second chance.ILB: In response to questions from the ILB, Judge Certo responded today:
"When they get off track, we have the obligation to keep our promise and help them to get back on track," Marion Superior Court Judge David J. Certo said during a ceremony in his courtroom Friday morning to kick off the new court.
This will be a different kind of court, less about punishment and more about healing.
Certo called it a "treatment-oriented program," akin to drug court, which works to get addicts into counseling, instead of prison.
"If you made a boneheaded mistake, everyone understands," Certo said. "We want to push you out of the system and get things back on track if we can." * * *
Veterans Court will hear cases every Friday morning, beginning next week. Veterans accused of low-level crimes will be assigned to this court, where they will be hooked up with a mentor and given a chance to change their lives.
"If we can get you engaged with the VA (Veterans Affairs), with services you've already earned, we're not likely to see you again," Certo said.
The Indianapolis Veterans Court is located in Court 12, and I am the presiding judge. We will accept a transfer case from other court after the defendant’s application is approved by our court team. The Indianapolis Veterans Court is a separate, problem-solving court docket, and we received provisional certification from the Indiana Judicial Center.
We’ve worked for more than three years to establish the Indianapolis Veterans Court, and I feel grateful to the U.S. Department of Justice-Office of Justice Programs for their grant to open our program. I also appreciate the help of my colleagues on the Marion Superior Court bench and the Court’s Executive Committee for their support. Mostly I feel grateful to the veterans we’ll serve and to the veterans in our community who have helped push this effort to fruition.
Ind. Decisions - 7th Circuit decides one Indiana case today
In Manuel v. Terris (SD Ind., Magnus-Stinson), a 4 page opinion, Judge Posner writes:
Manuel, a federal prisoner, filed a petition for habeas corpus (28 U.S.C. § 2241) directed at the warden of his prison and claiming an entitlement to a reduction in his prison sentence. The district court, disagreeing, denied the petition. * * * Affirmed.
Ind. Decisions - Court of Appeals issues 1 opinion(s) today (and 10 NFP memorandum decision(s))
For publication opinions today (1):
In Steven M. Kelly v. Rebecca J. Kelly , a 16-page opinion, Judge Bradford writes:
Appellant-Respondent Steven M. Kelly (“Husband”) and Appellee-Petitioner Rebecca J. Kelly (“Wife”) (collectively “the parties”) were divorced in 1995. The parties entered into a property settlement agreement which was accepted by the trial court and provided that Husband would pay Wife five million dollars over the course of several years. In 1997, the parties, by written agreement, amended the original settlement agreement and established a new payment schedule under which Husband would pay Wife $300,000 each year until 2014 (“1997 PSA”). The parties entered into two subsequent agreements, in 1999 and 2003, under which Husband advanced or loaned money to Wife from the amounts she would be entitled to receive under the 1997 PSA. In 2007, Husband ceased making payments under the 1997 PSA payment schedule because he believed Wife had been advanced or loaned the maximum amount she would have been entitled to receive in the remaining eight years of the 1997 PSA.NFP civil decisions today (2):
In 2013, Wife filed a motion requesting that the trial court enforce the terms of the 1997 PSA, alleging that Husband owed her the annual payments from 2007 to 2014 and that the agreements made following the 1997 PSA were unenforceable because they were not approved by the trial court. The trial court agreed with Wife, finding that it did not have jurisdiction to consider the 1999 and 2003 agreements because it had not approved and incorporated those agreements into the dissolution decree. The trial court ordered Husband to pay Wife $2.4 million. We find that the parties were free to modify the settlement agreement without approval of the trial court and that the trial court erred in failing to consider the 1999 and 2003 agreements. We reverse and remand.
In Brian Andert v. State of Indiana and Bruce Lemmon, in his official capacity as Commissioner of the Indiana Department of Correction (mem. dec.), a 9-page opinion, Judge Najam writes at #9:
Andert attempted to show irreparable harm when he alleged in his motion for the preliminary injunction that sex-offender inmates who refuse to admit to guilt as part of the INSOMM program will have their credit class lowered, such that they will earn less credit time. However, as the trial court correctly noted, our supreme court recently held that when the State presents an inmate with a choice to participate in a DOC program that may lead to a reduced sentence, such as through credit time or a release on parole, that opportunity is a “constitutionally permissible choice” to participate that does not compel self-incrimination and, therefore, does not violate the Fifth Amendment. Bleeke, 6 N.E. 3rd 934-35. Therefore, Andert has not shown that a potential loss of credit time amounts to irreparable harm or supports his claim on the merits. * * *NFP criminal decisions today (8):
 Although being incentivized to admit guilt by a reduction in one’s release date does not constitute compulsion according to Bleeke, 6 N.E.3d 907, neither Bleeke nor any other Indiana case has addressed whether being required to admit guilt as part of a DOC program while a post-conviction relief action is pending is prohibited under the Fifth Amendment. * * * However, this is not the case to decide this issue of first impression.
Ind. Decisions - Supreme Court issues two opinions today, re synthetic drugs (spice)
In Christopher Tiplick v. State of Indiana, an 18-page, 5-0 opinion, Justice Massa writes [ILB emphasis]:
Christopher Tiplick faces criminal charges for possessing, selling, and dealing in the chemical compound designated XLR11, and dealing and conspiracy to commit dealing in look-alike substances. He sought dismissal of all counts, on the grounds that: (1) the charging information failed to reference the Indiana Board of Pharmacy’s Emergency Rule 12-493(E), which criminalized XLR11; (2) the applicable statutory schemes are impermissibly vague under both the United States and Indiana Constitutions; and (3) our General Assembly impermissibly delegated the authority to criminalize XLR11 to the Pharmacy Board under the Indiana Constitution. The trial court denied Tiplick’s motion, and he appealed. We too find no constitutional or statutory infirmity to any of the charges, but find the charging information inadequate with respect to the XLR11-related charges, necessitating dismissal of those counts. * * *In Aadil Ashfaque v. State of Indiana, a 1-page, 5-0 opinion, Justice Massa writes:
I. The Synthetic Drug Statute Is Not Unconstitutionally Vague. * * * “Synthetic drug” is defined in Section 321, it names the Section 4.1 emergency rules as the only additional source for prohibited substances, and Section 4.1(c) describes where to look for those published rules, based on the procedures contained in Indiana Code section 4-22-2-37.1 (2012). This is not a “maze,” but rather a chain with three links—three discrete statutes which give clear guidance as to how to find everything falling within the definition of “synthetic drug” under Section 321. Such a statutory scheme is not unduly vague.
II. The Look-Alike Statutes Are Not Unconstitutionally Vague. * * * Therefore, the text of the Look-Alike Statutes gives adequate notice to ordinary persons of the conduct proscribed. * * * There are thus no grounds to find the Look-Alike Statutes are subject to arbitrary enforcement, or were arbitrarily applied to Tiplick.
III. The Synthetic Drug Statute Is Not an Unconstitutional Delegation of Legislative Authority. Tiplick also asserts that Section 4.1 is in derogation of the Distribution of Powers Clause of the Indiana Constitution, because it impermissibly assigns the legislative function of enacting criminal statutes to the Pharmacy Board, an executive agency. * * *
Accordingly, it appears to be a matter of first impression whether our General Assembly may delegate rule-making power to an administrative agency if violation of such rules would result in penal sanctions.9 This issue contains two pertinent questions: (1) is such a delegation permissible under the Indiana Constitution; and (2) even if generally permissible, what test should we apply to determine whether a particular delegation of this kind is valid? * * *
Based on the weight and consistency of this authority, we find that the Distribution of Powers Clause of the Indiana Constitution does not prohibit our General Assembly from delegating rule-making authority to administrative agencies where violation of such rules may result in criminal penalties by statute, and moreover, that it is appropriate to apply Indiana’s traditional analysis to determine whether such a delegation is valid.
In Indiana, “although the legislature cannot delegate the power to make a law, it can make a law delegating power to an agency to determine the existence of some fact or situation upon which the law is intended to operate.” City of Carmel v. Martin Marietta Materials, Inc., 883 N.E.2d 781, 788 (Ind. 2008)
(internal quotations omitted). Such delegations are valid when “accompanied by sufficient standards to guide the agency in the exercise of its statutory authority.” Healthscript, 770 N.E.2d at 814. These standards “need to be as specific as the circumstances permit, considering the purpose to be accomplished by the statute.” Barco Beverage Corp. v. Ind. Alcoholic Beverage Comm’n, 595 N.E.2d 250, 254 (Ind. 1992).
Here, the Pharmacy Board has not been empowered to legislate with respect to dealing, conspiracy to commit dealing, or possession of synthetic drugs; that power has already been exercised by the General Assembly, as contained in relevant part at Indiana Code sections 35-48-4-10(a)(1) and -11 (Supp. 2012). The Pharmacy Board has merely been given the power to determine, via emergency rule, whether additional substances should qualify as “synthetic drugs” under Section 321—in other words, “to determine the existence of some fact or situation upon which the law is intended to operate.” * * *
In sum, we find Section 4.1 does not constitute an impermissible delegation of legislative authority to the Pharmacy Board under the Distribution of Powers Clause.
IV. The XLR11-Related Counts Must Be Dismissed for Failure to Reference the Emergency Rule. * * * Second, Tiplick claims the information was required to reference the Emergency Rule rather than just the criminal statute, because without it, there is nothing to indicate with specificity the criminality of XLR11. On this technical point, we find Tiplick to be correct. * * *
Tiplick was charged under Indiana statutes with dealing, conspiracy to commit dealing, and possession of synthetic drugs. Yet, the only synthetic drug listed in the information or the probable cause affidavit is XLR11. XLR11 was only illegal at that time pursuant to the Emergency Rule, and neither the charging information nor the probable cause affidavit reference that Rule. We thus find the charging information inadequate under Jennings. * * *
Conclusion. XLR11 became a criminal substance in Indiana on September 15, 2012, and Christopher Tiplick is alleged to have violated that rule a mere five days later. While he may have the dubious honor of being the first person in Indiana history so charged, being first does not entitle him to a free pass. As Justice Joseph Story opined more than 180 years ago:It is a common maxim, familiar to all minds, that ignorance of the law will not excuse any person, either civilly or criminally . . . . There is scarcely any law, which does not admit of some ingenious doubt, and there would be perpetual temptations to violations of the laws, if men were not put upon extreme vigilance to avoid them.Barlow v. United States, 32 U.S. 404, 411 (1833). For the foregoing reasons, we affirm the trial court’s denial of Tiplick’s motion to dismiss the charges against him under the Look-Alike Statutes (counts I through VI and XVI), we dismiss the XLR11-related charges (counts VII through XV and counts XVII through XVIII) only for insufficiency of the charging information, and remand to the trial court for all other proceedings consistent with this opinion.
Aadil Ashfaque appeals the trial court’s denial of his motion to dismiss charges of dealing in and possession of a synthetic drug, namely XLR11 [(1-(5-fluoropentyl)indol-3-yl)-(2,2,3,3-tetramethylcyclopropyl)methanone]. For the reasons set forth in our companion decision of Tiplick v. State, also issued today, we find no constitutional or statutory infirmity to these charges, but nevertheless dismiss them due to the inadequacy of the charging information, and remand to the trial court for all other proceedings consistent with that opinion.
Ind. Courts - "Couple wrongfully accused of child death settles for $31M"
Sarah Reese has a brief story today in the NWI Times [ILB emphasis]:
HAMMOND | A federal jury in Hammond on Tuesday awarded more than $31 million to a Knox family who sued five DCS officers, an Indiana State Police detective and a doctor after the parents were wrongfully accused of causing their daughter's death.There appears to be much more to this story. From a Nov. 7, 2007 story (8 years ago) in the Pharos Tribune:
Roman and Lynnette Finnegan were awarded the verdict after a three-week trial in U.S. District Court, said Richard Waples, one of the family's attorneys.
The Finnegans' 14-year-old daughter, Jessica, was found dead in their Francesville, Ind., home in 2005. The Indiana Department of Child Services and Indiana State Police suspected the Finnegans caused Jessica's death and ultimately took custody of the couple's three other children and arrested the Finnegans, Waples said.
It was later determined that Jessica, who had a congenital heart defect and suffered from seizure disorder, died as a result of a medication error by her family doctor, Waples said. The doctor had prescribed too much warfarin, which caused hemorrhages in Jessica's brain, court records state.
The defendants in the case included Laurel Myers, Regina McAninch, Tracy Salyers and Reba James, all DCS employees, former DCS Director James Payne, Indiana State Police Detective Jennifer McDonald and Antoinette Laskey, a pediatrician who was employed at Riley Hospital for Children.
FRANCESVILLE — The nightmare might be coming to an end for a Francesville couple charged last spring in the death of their 14-year-old daughter.
Lynette Finnegan and her husband, Roman, had been charged with neglect of a dependent in the December 2005 death of her daughter, Jessica Salyer. The charges grew out of an investigation by the Indiana Department of Child Services in Pulaski County.
In November 2006, the Indiana Department of Child Services in Pulaski County removed two other daughters from the home as it began to investigate the circumstances surrounding Jessica’s death.
Roman Finnegan, who worked for the Indiana Department of Correction, was suspended from work because he had been charged with a felony.
Jasper County Coroner Gordon Klockow — who dealt with Salyer’s case because she was taken to the Jasper County Hospital the day she died — said in his verdict July 17 that the skull fracture investigators had claimed was caused by head trauma was actually caused by the autopsy itself.
Her death instead has been ruled a result of cardiac arrest related to an error in her prescription. Jessica, who had her first heart surgery at the age of 2, had been on medication much of her life to treat a heart condition and seizures.
Lynnette Finnegan was reunited with her daughters in August. By late October, charges had been dropped against Roman, and last week, they were dropped against Lynnette as well.
Roman Finnegan told the Lafayette Journal and Courier he expected to be able to return to work next week.
Still, the Finnegans told the newspaper they were not quite yet ready to put the case entirely behind them. They said they still looked forward to confronting state officials in a court of law. DCS staff counsel Mike Boonstra told the Journal and Courier that as of Friday, the Department of Child Services still had a case involving the Finnegan family pending in court.
Law - "Newspaper not liable for alleged defamatory letter to editor published online"
That is the heading to this post by Chicago attorney Evan Brown in his blog, InternetCases. The post begins:
Plaintiff — a lawyer and self-identified civil rights advocate — sent several letters to local businesses claiming those businesses did not have enough handicapped parking spaces. Instead of merely asking the businesses to create those parking spaces, he demanded each one pay him $5,000 or face a lawsuit.The summary:
One local resident thought plaintiff’s demands were greedy and extortionate, and wrote a letter to editor of the local newspaper covering the story. The newspaper posted the letter online. Both the newspaper and the letter’s author found themselves as defendants plaintiff’s defamation lawsuit.
The letter-writer settled with plaintiff, but the newspaper stayed in as a defendant and moved to dismiss, arguing that federal law immunized it from liability for content provided by the third party letter-writer.
The Appellate Court of Illinois has sided in favor of a local newspaper in a defamation lawsuit brought against the paper over a reader’s allegedly defamatory letter to the editor. The court held that the Communciations Decency Act (at 47 U.S.C. 230) “absolved” the newspaper of liability over this appearance of third party content on the newspaper’s website.
Ind. Courts - "Former Lake Co. cop said he chopped up machine guns for illicit profit"
From the NWI Times yesterday, a long story by Bill Dolan that begins:
HAMMOND | A former county police officer and firearms enthusiast told a federal court jury Tuesday that the illicit gun trade going on in the Lake County Sheriff's Department bothered him.
But it wasn't because buying banned weapons under the pretense of using them for law enforcement and then chopping them up for resale on the Internet for private profit was a violation of his oath to uphold the law.
"I didn't like destroying perfectly good machine guns," Ronald Slusser testified Tuesday in the U.S. District Court trial of a Philadelphia gun dealer, pleading innocent to conspiracy to cover up machine gun law violations with a tissue of phony county government documents. * * *
Slusser, who was skilled at disassembling machine guns and selling them online, sometimes within hours of posting them on a firearms website, took advantage of a hot market for H and K gun barrels, which sold for double the retail price of the fully assembled guns.
However, he said they had to be wary of federal law restricting ownership of the automatic weapons to the military, law enforcement and certain gun dealers.
To make their trade appear legitimate, the machine guns were purchased in the name of the sheriff's department to skirt the ban. Joseph Kumstar, who was third highest ranking officer, had the authority to buy guns for the department and generate phony paperwork indicating the guns were purchased with public money for exclusive law enforcement use.
Ind. Gov't. - "Indiana Dunes liquor license denied" [Updated]
State officials have upheld a local board’s decision denying a liquor license to a politically connected developer who won a contract to bring a restaurant, bar and banquet hall to the beachfront of Indiana Dunes State Park.ILB: Here is a long list of earlier ILB posts.
The state Alcohol and Tobacco Commission voted 4-0 Tuesday, siding with a Porter County board that denied a license to Chuck Williams in September. Williams says the decision imperils the whole multimillion dollar project to rehabilitate and build out the park’s dilapidated pavilion.
Though Williams made a convincing argument that alcohol sales are needed to make the project viable, his need for alcohol sales doesn’t “translate to a need for (those) services in the neighborhood and the community,” Chairman David Cook said of the Porter County board’s 3-1 vote rejecting Williams’ permit application. * * *
For five years, Williams worked behind the scenes on the project with state Department of Natural Resources officials, securing a decades-long privatization deal. But once the project was formally announced last March, it was engulfed in controversy amid accusations that Williams used political clout to get a sweetheart deal, working with the state long before the project went out to bid.
Williams, a high-ranking state Republican Party official who has donated handsomely to GOP causes, has denied his political connections played a role, and the Indiana DNR says it followed state and federal laws and did not give Williams preferential treatment. However, legal experts have said the deal raises red flags and amounts to a long-term give-away of cherished public parkland. They questioned why the state didn’t seek additional bids on the project. The only competing offer came from a nonprofit group of local conservationists, lawyers and finance professionals. * * *
Commission Vice Chairman David Coleman questioned why the state ceded so much control of the building to Williams.
“I think it’s the state’s duty to keep that building in tip-top shape and they just haven’t done it. It should be the tax payers sharing equally in that burden,” Coleman said.
[Updated at 1:19 PM] Here is the Gary Post-Tribune coverage, by Amy Lavalley. Some quotes from the long story:
"Pavilion Partners is disappointed by the state board's vote and continues to be surprised by the denial of the liquor license for the Dunes Pavilion," said Pavilion Partners spokeswoman Deb Butterfield, declining to comment beyond a prepared statement. "It is too early to determine what their next course of action will be and they will continue to explore their options."
Pavilion Partners has a 15-day window in which to file an appeal with the ATC. The appeal would go before an administrative law judge before heading again to the state board for a final decision.
Phil Bloom, director of the division of communications for the Indiana Department of Natural Resources, said in an email, "The Pavilion Restoration project is not contingent upon alcohol sales. While alcohol sales help with our ability to work with private partners, it does not change our plans with what we feel is needed." * * *
Pavilion Partners has already gutted the pavilion, constructed in 1930, and built new restrooms outside the pavilion. The group has not publicly released plans for the new banquet facility.
The state board has the option of overturning the ruling only if that ruling runs against state statute, said David Cook, chair of the state board. The statute notes the decision by the county commission can be overturned if its decision was arbitrary, capricious, an abuse of discretion or otherwise not in accordance with the law; if it's contrary to a constitutional right; if it's in excess of or contrary to statutory jurisdiction; if it's without observance of procedure required by law; or if it's unsupported by substantial evidence.
"Our review process is very clearly set out in that statute," Cook said. "Unless we make a determination they have violated one of those innumerable principles, there is no reason to overturn the local board's ruling."
Law - "Who Should Have Access to DNA Evidence?"
From the Sept. 28th NY Times Magazine, this long article by Emily Bazelon: "Who Should Have Access to DNA Evidence?" that begins:
Next week, the West Virginia Supreme Court will hear a case in which 30 former prosecutors from around the country have taken the unusual step of siding with the defense. It’s a battle over a DNA test, and whether prosecutors must turn the results over to a defendant when they point to his innocence — even if he has made the decision to plead guilty.Here is a column from yesterday, Oct. 6, by Hoppy Kercheval, in the Charleston, WVa Metro News, headed "Joe Buffey gets his day in court." It previews the case.
Here is a post-argument story in the Metro News, by Aaron Payne. Here is how the long report concludes:
The state maintains a two-suspect theory and Buffey used a condom, which would explain why his DNA was not found on the victim.
Seemingly, the majority of the justices were leaning toward the argument presented by Buffey’s representation.
Chief Justice Margaret L. Workman, who proclaimed herself as one of the more conservative judges when it comes to violent criminals on the bench, described the proceedings back in 2002 as relayed to her as a “bad movie” that started with no one altering Buffey to the fact the DNA testing was completed before sentencing.
“On top of that, you get the bad advice your lawyer gave you about ‘You’re not going to get any more time anyhow.’ Then you get the, weren’t there misrepresentations or misstatements made by the authorities to the grand jury? The ‘so called’ confession had so many inconsistencies with what the victim said occurred…It just really comes out a mess.”
Justices also inquired if they were to allow Buffey to vacate his guilty plea, would the state’s case be impeded in anyway should the opt to take it to trial and what other evidence the state had besides the confession.
Karlin closed his presentation to the court Tuesday morning by imploring them to allow Buffey the chance to use DNA evidence to clear his name of this heinous crime.
“Keep Brady alive,” he said. “In a world of plea bargains, minimize the false pleas and allow Mr. Buffey to vacate his plea and return for whatever the state wants to do. We’re ready to face it.”
Ind. Courts - Judge Posner and judicial internet research, continues
On August 20th the ILB posted "7th Circuit decided one Indiana case yesterday, a must read on independent research by judges." There was also a long follow-up post on Sept. 29th, "Judge Posner and the use of information gathered from the Internet." Yesterday, Eric G. Pearson posted in Wisconsin Appellate Law an entry headed "Judicial Internet Research: Does the First SCOTUS Decision of OT 2015 Bode Ill for Dr. Posner?" A few quotes:
The parties in Rowe currently are briefing the issue of whether the case should be heard en banc (see our post here), and we’ve suggested (here and in other forums) that this issue might be ripe for review—not only by all judges of the Seventh Circuit in regular active service—but by the nine justices sitting at One First Street.
Lo and behold, yesterday the Supreme Court decided, per curiam, the first case of October Term 2015, Maryland v. Kulbicki, No. 14-848 (Oct. 5, 2015), in which it upbraided the Maryland Court of Appeals for “apparently conducting its own Internet research nearly two decades after the trial.” Slip op. at 4.
Law - "Short-circuiting defendants’ ability to cross-examine forensic evidence is not only unjust—it paves the way for bad science"
There has been much litigation in Indiana and elsewhere over use of evidence from breathalyzer and other tests for measuring blood alcohol - exactly how were the results determined? But, as reported in an article this week in Slate, by Rebecca Wexler, code is everywhere, and defendants should have the right to inspect the software used to convict them:
Secret code is everywhere—in elevators, airplanes, medical devices. By refusing to publish the source code for software, companies make it impossible for third parties to inspect, even when that code has enormous effects on society and policy. Secret code risks security flaws that leave us vulnerable to hacks and data leaks. It can threaten privacy by gathering information about us without our knowledge. It may interfere with equal treatment under law if the government relies on it to determine our eligibility for benefits or whether to put us on a no-fly list. And secret code enables cheaters and hides mistakes, as with Volkswagen: The company admitted recently that it used covert software to cheat emissions tests for 11 million diesel cars spewing smog at 40 times the legal limit.That is just the start of the long article.
But as shocking as Volkswagen’s fraud may be, it only heralds more of its kind. It’s time to address one of the most urgent if overlooked tech transparency issues—secret code in the criminal justice system. Today, closed, proprietary software can put you in prison or even on death row. And in most U.S. jurisdictions you still wouldn’t have the right to inspect it. In short, prosecutors have a Volkswagen problem.
Take California. Defendant Martell Chubbs currently faces murder charges for a 1977 cold case in which the only evidence against him is a DNA match by a proprietary computer program. Chubbs, who ran a small home-repair business at the time of his arrest, asked to inspect the software’s source code in order to challenge the accuracy of its results. Chubbs sought to determine whether the code properly implements established scientific procedures for DNA matching and if it operates the way its manufacturer claims. But the manufacturer argued that the defense attorney might steal or duplicate the code and cause the company to lose money. The court denied Chubbs’ request, leaving him free to examine the state’s expert witness but not the tool that the witness relied on. Courts in Pennsylvania, North Carolina, Florida, and elsewhere have made similar rulings.
Tuesday, October 06, 2015
Ind. Gov't. - Supreme Court grants emergency transfer in House public records case, bypassing COA review
The Indiana Supreme Court has today, in an order filed within the hour, granted the plaintiffs' motion for emergency transfer in the House email public records case, CAC, et al. v. Koch:
Having considered the parties submissions, the Court hereby GRANTS the appellants’ verified motion. Pursuant to Appellate Rule 56(A), the appeal shall proceed in this Court as if it had originally been filed here and shall be subject to the deadlines set forth in the Appellate Rules relating to the record and briefing.For background on this aspect of the case, see this post from Sept. 10th and this one from Sept. 25th. For the entire list, see the category, GA and APRA.
Ind. Decisions - Court of Appeals issues 2 opinion(s) today (and 3 NFP memorandum decisions) [Corrected]
For publication opinions today (2):
In Jermaine McKinley v. State of Indiana, a 13-page opinion, Judge Robb writes:
Following a jury trial, Jermaine McKinley was convicted of dealing in cocaine as a Class A felony. McKinley appeals his conviction, raising one issue for our review: whether the trial court properly instructed the jury as to the requisite mental state for the offense of possession of cocaine with intent to deliver. Finding no fundamental error in the instruction of the jury, we affirm McKinley’s conviction for dealing in cocaine. * * *In Jill Miller v. Rosehill Hotels, LLC d/b/a Holiday Inn Express; Intercontinental Hotel Group d/b/a Holiday Inn Express, a 21-page opinion in a slip and fall case, Judge Brown writes:
Under of the facts of this case, intent to deliver was the central issue at trial. Although defining “intent to deliver” may have been preferable, terms in common use that can be understood by a person of ordinary intelligence do not always need to be defined. Manley v. State, 656 N.E.2d 277, 279 (Ind. Ct. App. 1995), trans. denied. Reading the jury instructions as a whole and in the context of all the information given to the jury, we cannot say the instructions were misleading regarding the requirement of intent to deliver. Accordingly, we find no fundamental error in the trial court’s instruction of the jury.
Jill Miller appeals the trial court’s entry of summary judgment in favor of Rosehill Hotels, LLC d/b/a Holiday Inn Express and Intercontinental Hotel Group d/b/a Holiday Inn Express (together, the “Hotel”) and the denial of her motion to correct error. Miller raises one issue which we revise and restate as whether the court erred in entering summary judgment in favor of the Hotel and abused its discretion in denying her motion to correct error. We reverse and remand. * * *NFP civil decisions today (1):
As to whether Miller voluntarily accepted a known and obvious risk of danger as a matter of law, we conclude that a reasonable inference from Miller’s deposition testimony is that she was not aware of the relative slickness of the parking lot and walkways on the Hotel’s property until after she had walked on the parking lot either part or all of the way to her vehicle. To satisfy its burden of making a prima facie showing that it was entitled to summary judgment, the Hotel was required to designate evidence showing that Miller had actual knowledge and appreciation of the specific risks involved and voluntarily accepted those risks. * * * [B]ased on the designated evidence, we cannot say that Miller voluntarily accepted the risk of a known and obvious danger as a matter of law.
In addition, under these circumstances a trier of fact could reasonably determine that the Hotel should have anticipated that Miller would attempt to walk from her vehicle back to the carport or sidewalk despite the obviousness of the risk or danger. * * *
Construing all factual inferences in favor of Miller as the nonmoving party, we conclude that the Hotel failed to carry its burden of establishing that Miller voluntarily accepted a known and obvious risk as a matter of law or that it did not breach its duty to maintain its property in a reasonably safe condition for its invitees as a matter of law. Accordingly, the entry of summary judgment in favor of the Hotel was improper. See Countrymark, 892 N.E.2d at 691-692.
For the foregoing reasons, we reverse the entry of summary judgment in favor of the Hotel and against Miller and remand for further proceedings.
NFP criminal decisions today (2):
Ind. Gov't. - More on "State decision on alcohol plan for Dunes Pavilion project looms Tuesday"
INDIANAPOLIS | The Indiana Alcohol and Tobacco Commission followed the recommendation of the Porter County Alcoholic Beverage Board and voted 4-0 on Tuesday to deny the sale of alcohol at the restored pavilion at Indiana Dunes State Park.
Courts - "SCOTUS Plans to Highlight Revisions in Its Opinions"
Adam Liptak writes today in the NY Times:
The Supreme Court announced on Monday that it would disclose after-the-fact changes to its opinions, a common practice that had garnered little attention until a law professor at Harvard wrote about it last year.The ILB has had a number of posts in the past on how opinions corrections are handled (or not) in the 7th Circuit, and in Indiana appellate courts. See, for example, Oct. 1, 2014 and June 5, 2014.
The court also took steps to address “link rot” in its decisions. A study last year found that nearly half of hyperlinks in Supreme Court opinions no longer work.
And the court said it would bar “line standers” who hold places for lawyers eager to see high profile arguments.
The move on editing is a major development. Though changes in the court’s opinions after they are issued are common, the court has only very seldom acknowledged them.
Many of the changes fix spelling or factual errors. Others are more substantial, amending or withdrawing legal conclusions.
Starting this term, a court statement said, “post-release edits to slip opinions on the court’s website will be highlighted and the date they occur will be noted.”
The court’s website includes sample opinions to show how all of this will work. “The location of a revision will be highlighted in the opinion,” the statement said. “When a cursor is placed over a highlighted section, a dialogue box will open to show both old and new text.” * * *
It is not clear, Professor Lazarus said, whether the court would take additional steps later in the editing process, which can last five years before authoritative hardcover books are produced, to make all changes public.
The court said it would also address what it called “the problem of ‘link rot,’ where Internet material cited in court opinions may change or cease to exist.” The court will now collect and post the materials it links to on a dedicated page on its site.
Ind. Gov't. - "Bill surcharges charge up electric bills"
Keith Benman of the NWI Times has this long, illuminating (sorry) story on the impact of "trackers" on electric bills. Some quotes:
Consumer groups in Indiana, both residential and industrial, lay much of the blame for the consistent hikes in electric prices imposed by all five of Indiana's large investor-owned utilities on bill surcharges known as “trackers.” They allow utilities to "track" their costs for projects and other expenses -- then pass the cost on to customers.
Those groups say the trackers have essentially replaced traditional rate cases, where utilities open the books on all components of their business in proceedings before the Indiana Utility Regulatory Commission.
“Trackers are just completely out of control in the state of Indiana right now,” said Kerwin Olson, executive director of Citizens Action Coalition. “And that is largely why we have had such a big rise in electricity prices.” * * *
Decades ago, most utilities had just one tracker -- for coal costs -- which were volatile and usually totally out of a utility's control, Olson said. Today, it's not unusual for utilities to have eight or more trackers.
About 13 percent of a NIPSCO residential customer's bill this year was made up of bill surcharges known as trackers. At utilities Duke and IPL, 34 percent and 30 percent respectively of a customers bill is made up of such surcharges.
Trackers are authorized by legislation passed by the Indiana General Assembly. Utilities then apply to the Indiana Utility Regulatory Commission to implement them.
Indiana's large manufacturers, united under the banner of Indiana Industrial Electricity Consumers Inc., have been making the same case to state legislators, saying the increased costs associated with trackers are hurting Indiana's economic competitiveness.
The manufacturers would like to see utilities required to file full-blown rate cases very four years, rather than relying on trackers to pay for major projects, according to Jennifer Wheeler Terry, legislative director for Indiana Industrial Electricity Consumers.
Environment - "2nd Circuit orders EPA to revise ship ballast dumping regulations"
The Michigan City News-Dispatch highlights this AP story by John Flesher about a ruling that will impact Lake Michigan and the other Great Lakes. The long story begins:
TRAVERSE CITY, Mich. (AP) — A federal appeals court ordered the government Monday to rewrite its regulations on ballast water discharges from ships, one of the leading culprits in the spread of invasive species across U.S. waterways.
Environmental groups contended in a lawsuit that an industry-wide permit issued by the U.S. Environmental Protection Agency two years ago wasn't tough enough to prevent vessels from introducing additional harmful organisms such as zebra and quagga mussels, which have caused heavy economic and ecological damage in the Great Lakes and spread as far as the West Coast.
The 2nd U.S. Circuit Court of Appeals sided mostly with the environmentalists, saying the EPA erred in numerous ways, including settling for international limits on live organisms in ballast water when technology was available to meet tougher standards.
The court also faulted the agency for failing to consider onshore treatment of ballast water, exempting vessels built before 2009 that operate only in the Great Lakes from the discharge limits, and requiring inadequate monitoring of discarded water to make sure it complies with the rules.
"This decision is welcome news for the millions of families, anglers, hunters, paddlers, beach-goers, and business owners, who have borne the brunt of damages from aquatic invasive species for far too long," said Marc Smith, policy director for the National Wildlife Federation, one of the groups that had sued.