Saturday, December 20, 2014
Ind. Decisions - "Jury sides with fired teacher: $1.9 million judgment against Catholic diocese"
That is the headline to Rebecca S. Green's story today in the Fort Wayne Journal Gazette, reporting on yesterday's verdict. Some quotes:
Almost every single thing for which Emily Herx asked the jury, she received.
Nearly $2 million in damages, and vindication, after the jury ruled that the Catholic Diocese of Fort Wayne-South Bend discriminated against the former language arts teacher at St. Vincent de Paul Catholic School when they fired her for undergoing in vitro fertilization.
The verdict came after about 51/2 hours of deliberation Friday afternoon, capping off a four-day jury trial before U.S. District Judge Robert Miller Jr. in the expansive federal courthouse just a few blocks from the Cathedral of the Immaculate Conception, the center of the diocese.
As she waited for the jury to come in, Herx sat ramrod straight in her chair at the table next to her attorney, Kathleen DeLaney, her face anything but calm as she clearly tried to control her breathing and anxiety.
Throughout the trial, she heard herself characterized by the defense as a potential drug abuser, an emotional basket case and as someone who committed a sin so grave and immoral that no circumstances could justify it.
But after the verdict was read, she seemed to uncoil with relief, crying and holding onto DeLaney in a long and tearful embrace.
At issue in the case was whether the diocese discriminated against Herx because of her gender by treating her differently than similarly situated male employees, or because of her attempts to become pregnant, by forcing her to choose between in vitro fertilization and her job.
Throughout the case, both sides stressed that Herx was fired for undergoing in vitro fertilization. For Herx, the decision to continue the treatment abhorred by the church was her last and safest chance to become pregnant with another child.
For the diocese, the matter had nothing to do with her attempt to become pregnant but with her choice of method. As part of her contract, Herx had signed a morals clause, promising to uphold Catholic teaching. When she did not do so, diocesan officials had no choice but to remove her from their teaching roster.
Repeatedly, the priests and bishop spoke on the stand of having wanted to see her show remorse or regret for making the decision she made.
Herx never did. * * *
During closing arguments Friday morning, DeLaney asked the jury for a total of $2,171,124 in damages – including compensation for lost wages, pain and suffering and enough money to punish the diocese for its conduct. Her annual salary had been around $28,000.
Under cross-examination Thursday, Bishop Kevin C. Rhoades testified that the diocese had net assets of about $30 million, but said a victory for Herx in the lawsuit could affect parts of its operation.
While the total amount of $1,950,001 awarded to Herx was close to what she had asked, the jury of seven men and five woman awarded her only $1 in punitive damages.
Diocesan attorney John Theisen asked Miller to order the amount of the award capped at $300,000, per statutory requirements. DeLaney argued that the cap did not apply in this case.
The judge asked both sides to brief their arguments over the next few days. * * *
The diocese intends to appeal the jury’s verdict to the U.S. 7th Circuit Court of Appeals in Chicago.
As he hustled out of the courthouse, Theisen told the small scrum of reporters that the case remained an issue of religious freedom, and that exemptions in civil rights laws for religious employers should have protected the diocese from the unfavorable verdict.
“It never should have brought the case to trial,” he said.
Friday, December 19, 2014
Ind. Decisions - 7th Circuit decides one Indiana case today
In USA v. Clark (SD Ind., Barker), a 15-page opinion, Judge Williams writes:
Milford Clark strolled into a credit union wearing a two‐tone baseball hat and sunglasses, walked out, and got into his blue Ford Crown Victoria. Five days later, a man fitting Clark’s description robbed a bank wearing a two‐tone baseball hat and sunglasses and left in a blue Ford Crown Victoria. Authorities interviewed and ultimately arrested Clark for the robbery. Clark wanted to represent himself and the magistrate judge found that Clark waived his right to counsel for proceedings before that court. The district court considered the issue anew on a motion from the government and asked Clark questions about his decision to proceed pro se. Ultimately, Clark decided against self‐representation. He was convicted, and now argues on appeal that the district court infringed on his Sixth Amendment right to proceed pro se because it improperly reconsidered an issue already decided by the magistrate judge. We reject this argument because the district court could analyze whether Clark’s waiver was valid since the magistrate judge’s ruling was limited to “this juncture” of the proceedings, namely Clark’s initial appearance. Moreover, the addition of DNA evidence to the government’s case gave the court reason to question whether Clark fully understood the perils of going pro se and the court properly alerted Clark about how that evidence changed the nature of the case. We also find the credit union evidence was properly admitted for a non‐propensity purpose, to establish Clark’s identity. Though we are troubled by the government’s introduction of more evidence than necessary to show Clark’s identity, including a video and witness testimony that were used to characterize Clark’s actions as “casing” the credit union, any errors in introducing more than just a still photo and failing to weigh the probative and prejudicial values of the evidence on the record were harmless since Clark met the physical description of the robber and his DNA was found at the Bank. Therefore we affirm.
Ind. Decisions - "Jury rules in favor of teacher in discrimination lawsuit"
From WANE, Fort Wayne, this evening:
A federal jury has ruled in favor of a former elementary school teacher who sued the Fort Wayne-South Bend Catholic Diocese for discrimination after her contract was not renewed when it was learned she had undergone in vitro fertilization to try and get pregnant. The unanimous verdict was delivered at 4:30 pm. The Diocese plans to file an appeal in the next 28 days.Here is a list of earlier ILB entries.
Emily Herx was a teacher at St. Vincent de Paul Catholic School when she was notified by the Diocese that her contract for the 2011-12 school year would not be renewed because of her use of in vitro.
Ind. Courts - Amicus Briefs in Indiana: Rare but Welcomed and Impactful
Commentary by Joel Schumm, professor at Indiana University's Robert H. McKinney School of Law
Imagine you are an Indiana Supreme Court justice faced with a stack (yes, we’re still waiting on electronic filing) of briefs in about 20 cases for the weekly conference. You are trying to decide which of those cases present issues of statewide significance worthy of the Court’s limited time and docket space on “important” issues under Appellate Rule 57(H).
About once or twice a month the stack looks a little different. An interested group, not a party to the case, has filed a friend-of-the-court or amicus brief explaining why the case presents an issue worthy of Supreme Court review. You’d probably take notice.
Analyzing data from 2013, this post considers the infrequency of amici briefs filed in the Indiana Supreme Court, the entities that submit them, and their apparent impact.*
Last year the Indiana Supreme Court considered whether to grant transfer in 775 cases. Just 17 of those cases (a little over 2%) included an amicus brief. Ten of those 17 cases included just one amicus brief. **
The largest number of amici in a transfer case (four separate briefs) were filed in Smith v. Delta Tau Delta. Two briefs were filed in five cases; three were filed in one.
That’s a mere 27 briefs in all transfer cases, which pales in comparison to the more than 30 briefs filed in just one Seventh Circuit case (the same-sex marriage challenge) earlier this year. Or the more than 800 amici filed with the U.S. Supreme Court in 2013-14, which was a decline from more than 1,000 the previous term.
Unlike the U.S. Supreme Court’s two stage process of petitions (and responses) for discretionary review, followed by a second round of briefing on the merits, Indiana has a one-step, combined process. Thus, amici must almost always become involved in a case before knowing if the justices are interested, which could suppress amici interest.
The Indiana Supreme Court welcomes amici participation. I’m not aware of a request to file an amicus brief being denied, and even late requests appear to be routinely permitted.
Motions to strike amici by an unhappy party appear to be routinely denied. For example, in the right to work case, the Court wrote in an order:
Summarizing, Appellees request that the court reconsider allowing amicus participation because the NFIB's brief provides inapplicable citations from other states not relating to this case or the Indiana Constitution, the NFIB individuals are "pursuing their own agenda" by raising irrelevant issues, certain persons and entities were denied permission to participate as amici by federal district courts, and ILF's brief is "openly partisan" and adds nothing unique to the State's position argued in its brief. The Court, however, generally welcomes participation of amicus curiae, though such participation does not commit the court to addressing issues raised by amicus. Furthermore, Appellees have an opportunity to present their own argument in their brief, including a response to arguments presented by amici.Some opinions have even included a grateful footnote: “We thank all amici for their helpful briefs.”
Transfer was granted in 65% (11/17) of the transfer cases with one or more amici briefs. This is nearly seven times the overall grant rate last year of about 9%. The odds of a grant of transfer were highest in civil cases with a published Court of Appeals’ opinion (about 25%), and cases with amici easily beat those odds. (And with one exception, the 17 transfer cases were all from published opinions in civil cases; Brewington was the only criminal transfer case.)
Even with a thorough understanding of all the briefs, issues, and opinions, it would be difficult in many cases to pinpoint the impact of the amici. One notable exception, however, is Drake v. Dickey, where the Court granted transfer solely to address a statement in a footnote in the Court of Appeals’ opinion, which was the sole subject of the amicus brief filed by the Indianapolis Bar Association, Appellate Practice Section.
Although the content of a brief is almost always its primary contribution, the endorsing entities cannot be overlooked. No one is going to be surprised if the Hoosier State Press Association Foundation weighs in on a freedom of press issue or the Insurance Institute of Indiana is concerned about an issue involving insurance coverage. But some cases have included amici from some unlikely suspects, such as the Brewington blogger intimidation case, which drew the following collection of entities and individuals on the same brief: Eagle Forum, the Hoosier State Press Association, the Indianapolis Star, The Association of Scholars, the Coalition for Open Government, the James Madison Center For Free Speech, NUVO, James W. Brown, Anthony Fargo, and Sheila S. Kennedy.
Beyond that case, which also included an amicus brief from the ACLU of Indiana, the following filed amici briefs with the Indiana Supreme Court in 2013:
- Hoosier State Press Association Foundation (4 cases)
- Indianapolis Bar Association, Appellate Practice Section (2 cases)
- Indiana Legal Foundation (2 cases)
- Indiana Trial Lawyers Association (2 cases)
- America's Health Insurance Plans
- United Policyholders
- Professional Firefighters Union Of Indiana & Hendricks County Professional Fire Fighters Local 4406
- Fraternal Order of Police of Indiana
- Automobile Dealers Association of Indiana
- Indiana Prosecuting Attorneys Council
- The Insurance Institute of Indiana
- Indiana Coalition For Open Government
- Renewable Fuels Association
- Indiana Land Title Association
- National Association of Insurance
- Nat’l Federation of Independent Business Small Business Center
- Ind. State Building & Constr. Trade Council
- United Steel Workers (And Other Unions)
- Professor Kenneth Dau-Schmidt
- Child Advocates
- Associated Builders and Contractors, Indiana Chapter
- Indiana Association of Cities and Towns & Indiana Municipal Lawyers Association
I’ve filed many pro bono amici briefs over the years, and I’m sure many other lawyers are willing to help provide a voice to interested groups on important issues pending before the Indiana Supreme Court. The justices appear to welcome the input, which can and not infrequently does make a difference in a case.
*The focus of this post is the Indiana Supreme Court. Amici briefs were filed in eight Court of Appeals’ cases (all civil) in 2013. Two briefs were filed in three of the cases; one was filed in the other five. Seven of the eight were decided by published opinions.
**Amicus briefs were also filed in two other, non-transfer Indiana Supreme Court cases. Five separate amici were filed in Zoeller v. Sweeney (the right to work case), which was a direct appeal, and two were filed after a grant of transfer and upon direction (State Public Defender) or invitation (Indiana Tech Law Professors) in Wilson v. State, a pro se criminal appeal.
Ind. Gov't. - Correction: Public Access Counselor says Notre Dame police subject to public records law
For the foregoing reasons, it is the Opinion of the Public Access Counselor the NotreThe $$$ Indiana Education Insight (h/t) featured the story on the front page of its Nov. 10, 2014 issue.
Dame Security Police Department should be considered a public law enforcement agency subject to the Access to Public Records Act.
Ind. Decisions - Court of Appeals issues 4 today (and 11 NFP)
For publication opinions today (4):
NFP civil opinions today (5):
NFP criminal opinions today (6):
Ind. Gov't. - Public Access Counselor says Notre Dame police subject to public records law [Corrected]
A long story today in the SBT, by Margaret Fosmoe, is titled "Notre Dame police subject to public records law, [PAC] opinion says." The story begins:
The University of Notre Dame’s Security Police department is a public law enforcement agency, with the same requirements to maintain and release public records as all other police agencies in the state, according to an opinion by Indiana’s public access counselor.ILB: The PAC opinion is not yet available.
“The police force is established by the governing body of a private institution, but their powers come from the state of Indiana. I am not comfortable saying an organization can hide behind the cloak of secrecy when they have the power to arrest and create criminal records and exercise the state’s police powers,” wrote Luke Britt, an attorney who serves as Indiana’s public access counselor.
His formal opinion was released Thursday in a letter to Tribune Executive Editor Alan Achkar.
The Tribune’s complaint, filed last month, had stated in part: “The public has a right to know the details about crimes, accidents and other incidents that occur on a private university’s campus, which typically attracts large public crowds, sometimes numbering in the tens of thousands. Many of those people are not directly affiliated with the university but still rely on the university police for their safety.”
The university has a professional campus police force, with sworn officers who carry guns and have the power to make arrests and enforce state laws. But university officials have long maintained that Notre Dame’s status as private institution makes it exempt from the state’s public records law. * * *
Three previous public access counselors had issued opinions concluding a police force that answers solely to a private university is private, and thus not subject to the state’s public records law.
On Thursday, Britt, who became the public access counselor in 2013, took a different stance.
“The Notre Dame law enforcement agency is clearly operating under the color of the law, enforcing Indiana criminal code and not mere campus policy or disciplinary procedures,” Britt wrote. “They also have the authority to police the surrounding community. They even have a 911 dispatch.
“If a law enforcement agency has police powers, then they should be subject to the typical scrutiny given to traditional police forces. Police powers come from the state — they do not spring forth organically. University police hold themselves out as a law enforcement agency enforcing criminal code.”
[More] This post has been corrected by a later post today.
Ind. Courts - "City Judge prevails in East Chicago court funding fight"
Yesterday's Court of Appeals opinion in Gilda Orange, et al., Members of the Common Council of the City of East Chicago, Ind. v. Hon. Sonya A. Morris (ILB post here) is the subject of a story today by Dan Carden of the NWI Times. Some quotes:
The East Chicago City Council is prohibited from reducing spending on its city court if the judge can show the budget cut will impair operations, the Indiana Court of Appeals ruled Thursday.ILB: It seems Indiana city courts and city judges have been much in the news recently. There have been a number of stories about discussions by city governments re closing their city courts, such as this one from May 20, headed "Goshen mayor Allan Kauffman suggests cutting city court." A quote:
In a 3-0 decision, the appellate panel agreed with Lake Circuit Judge George Paras who ordered the council to restore $65,000 of the $83,000 it sought to cut from the city court's 2013 spending plan.
Appeals Judge Cale Bradford said East Chicago City Judge Sonya Morris sufficiently demonstrated the city's budget reduction would force the layoff of essential employees and require the city court to cease operations.
Specifically, Bradford said, Morris established the budget cut presented "a clear and present danger of impairment of operations" because East Chicago's City Court is a smaller percentage of the city budget than city courts in nearby municipalities, total court salaries were lower in 2012 than 2002 and the challenges presented by a low-income and Spanish-speaking population.
The appeals court was not persuaded by the City Council's claim that its 16 percent budget reduction spread across all city departments also should affect the $832,000 spent annually on its court.
"The council ... did not consider budget reductions already made by the city court, develop any understanding of court administration or make an independent determination of the reasonableness of the city court’s operations before cutting its budget by 10 percent," Bradford said.
Morris also won approval from the appeals court to require the City Council to pay her attorney fees for the appellate portion of her budget challenge.
The ruling, which still can be appealed to the Indiana Supreme Court, sets a precedent where city councils can eliminate their city courts, but cannot reduce court budgets without the judge's consent.
The city court has operated at a deficit for at least 10 years, according to income and expense data provided by Kauffman. The court ended 2013 with a $164,210 loss, and in 2012, the court ended up $120,949 in the red.In addition, of course, are the recent reports about city judges in Muncie and Clarksville.
Indiana code has allowed city councils to abolish city courts every fourth year since 2006. If the city does not vote whether to keep the court open this year, the council will have to wait until 2018 to revisit the issue. [ILB: Here is the law, IC 33-35]
Ind. Decisions - "Supreme Court OKs arrests for 'annoying' drunks"
Updating this Dec. 18th ILB post headed "Supreme Court decides one today, reading reasonable person standard into public intoxication law," here is the NWI Times story on the opinion, Rodregus Morgan v. State of Indiana, reported by Dan Carden. Some quotes:
The Indiana Supreme Court on Thursday upheld the constitutionality of the state's public intoxication statute that makes it a misdemeanor crime if a person is drunk in a public place and "harasses, annoys or alarms another person."
The 5-0 ruling overturns a Feb. 13 decision by the Indiana Court of Appeals that struck down the "annoys" portion of the law as impermissibly vague.
Justice Steven David, writing for the high court, said "annoys" only is vague if it stands alone. When the word is considered alongside "harasses" and "alarms," as it must be, a reasonable person easily can understand the types of behavior that are prohibited.
Applying that standard, the Supreme Court vacated the 2012 public intoxication conviction of Rodregus Morgan, 52, of Indianapolis.
Morgan was sleeping in a downtown bus shelter when an Indianapolis police officer tried to waken him. When Morgan became agitated and reluctant to leave the shelter, the officer arrested him for public intoxication claiming Morgan smelled of alcohol and his behavior was annoying.
David said a sleeping individual is unlikely to annoy a reasonable person, especially in this case as Morgan was alone, except for his brother and the police officer, and he was not preventing others from using the bus shelter. * * *
Prior to 2012, Indiana's public intoxication law made it a crime to be drunk in public under any circumstance, including as a passenger in a vehicle operated by a sober driver.
The law was changed by the General Assembly to generally require a drunk person be endangering themselves or another person to be charged with public intoxication.
Thursday, December 18, 2014
Ind. Courts - Still more on "Judicial Qualifications Commission files charges against Muncie City Court Judge"
Moving at unprecedented speed (in the ILB's memory), the Supreme Court today acted on the Judicial Qualifications Commission petition filed with the Court Dec. 15th. The Court ordered that Judge Bennington be suspended with pay, until further notice, effective at midnight:
On December 11 , 2014, the Indiana Commission on Judicial Qualifications ("Commission") filed a "Notice of the Institution of Formal Proceedings and Statement of Charges" against Respondent, the Honorable Dianna L. Bennington, Judge ofthe Muncie City Court. Four days later, the Commission filed a "Verified Petition for Interim Suspension" pursuant to Indiana Admission and Discipline Rule 25(VIII)(E), which provides, "Upon petition by the Commission, the Supreme Court may impose, pending the disposition offormal charges, an interim suspension with pay ifthe Court deems the interim suspension necessary to protect public confidence in the integrity of the judiciary."Here is the most recent earlier ILB entry, from Dec. 15th.
Having considered the Commission's Verified Petition for Interim Suspension, the Court hereby GRANTS the Verified Petition. Pursuant to Admission and Discipline 25(VIII)(E), Dianna L. Bennington is hereby SUSPENDED FROM OFFICE WITH PAY effective at 12:00 a.m. on Friday, December 19, 2014. This suspension will continue in effect until further order ofthis Court.
Ind. Gov't. - "State plans more prison cell units"
Niki Kelly of the Fort Wayne Journal Gazette reports today in a story that begins:
Indiana will build eight prison cell units in 2017 and 2018 to cope with a rising prison population.
The increases come despite a comprehensive criminal justice reform bill passed by lawmakers that was supposed to reduce overall Indiana Department of Correction population by sending many low-level offenders to county jails or community corrections programs.
Aaron Garner of the DOC said population has dropped initially but will start to rise again in 2017.
That is because legislators also reduced credit time for many offenders, which means most felons will spend at least 75 percent of their sentence in prison. This is up from 50 percent.
And by early 2017 the state runs out of beds for adult males.
Legislators on the State Budget Committee hearing the presentation Wednesday seemed distressed by the news.
Sen. Karen Tallian, D-Portage, noted that during the legislative session there were differing projections floating around from the DOC, Legislative Services Agency and a third-party contractor.
She questioned what assumptions the DOC is using, and Garner said it is a mix of new advisory sentences and historical sentencing trends. Judges have new discretion in sentencing in the law, but it’s unclear whether they will use it.
“Until we get a better feel for sentencing practices under the new law we just don’t know,” Garner said.
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Ind. Decisions - Court of Appeals issues 5 today (and 21 NFP)
For publication opinions today (5):
In Gilda Orange, et al., Members of the Common Council of the City of East Chicago, Ind. v. Hon. Sonya A. Morris , a 17-page opinion, Judge Bradford writes:
In 2012, Appellants/Defendants Gilda Orange, et al., in their capacities as members of the Common Council of the City of East Chicago, Indiana (collectively, “the Council”), reduced by $82,000 the 2013 budget of the City Court of the City of East Chicago, Indiana (“the City Court”), which is presided over by Appellee/Plaintiff the Honorable Sonya A. Morris, Judge. In October of 2012, Judge Morris filed a verified complaint in mandamus in Lake Circuit Court, seeking an order that the Council fully fund the City Court’s requested budget for 2013 and that the Council also pay the City Court’s reasonable expenses in prosecuting the action. The Council moved to dismiss Judge Morris’s complaint on the ground that it did not use the Indiana Supreme Court’s judicial assignment process as outlined in Indiana Trial Rule 60.5.In Dawn Duty v. Boys and Girls Club of Porter County and Chuck Leer, an 11-page opinion, Judge Najam concludes:
Special Judge George C. Paras was appointed to hear the complaint, denied the Council’s motion to dismiss, and held trial. Following trial, Judge Paras ordered the Council to appropriate an additional $65,000 to fund the City Court (“the Mandate”) and for each party to pay its own expenses and attorney’s fees. The Council contends that (1) Judge Morris failed to meet her burden to establish that the mandated funds were reasonably necessary to operate the City Court, (2) Judge Morris should have been required to use the judicial appointment process of Trial Rule 60.5, (3) existing probation funds could have cushioned the effect of budgetary cuts, and (4) the Council’s appeal is not moot. The City Court counters that (1) the Mandate was necessary to preserve the judicial independence of the City Court, (2) the mandated funds are reasonably necessary to fund court operations, (3) the Council failed to establish that the City Court’s budget is excessive or that East Chicago could not fund the budget, and (4) the City Court is entitled to appellate attorney’s fees and expenses. We consolidate and restate the issues as (1) whether Judge Morris produced sufficient evidence to support the mandate of funds, (2) whether Judge Morris should have been required to use the procedure outlined in Trial Rule 60.5, and (3) whether the City Court is entitled to appellate attorney’s fees and expenses. We affirm the judgment of the trial court and remand for calculation of the City Court’s appellate attorney’s fees and expenses. * * *
We conclude that because Judge Morris carried her burden to establish that the requested funds were reasonably necessary, the trial court did not err in granting her mandate request. We further conclude that Judge Morris used the proper procedure to prosecute her mandate action and so will not reverse the judgment of the trial court on that basis. Finally, we conclude the City Court is entitled to an award of its appellate attorney’s fees and expenses and so remand for calculation of those fees and expenses.
The trial court did not err when it dismissed Duty’s claim against BGC alleging wrongful discharge. But the trial court erred when it dismissed Duty’s claim against Leer alleging tortious interference with a contractual relationship. Duty may proceed with that claim on remand.In In Re: the Guardianship of M.N.S.; J.L.M. v. M.S.S, a 9-page opinion, Judge Najam concludes:
The evidence supports the trial court’s conclusion that Mother is an unfit parent. Mother’s contentions on appeal amount to a request that we reweigh the evidence, which we will not do. Mother makes no contention that the adoption is not in Child’s best interests. Notwithstanding Mother’s waiver of that issue, we hold that the evidence supports the trial court’s conclusion that the adoption is in Child’s best interests. I.C. § 31-19-9-8(a)(11)(B). The trial court did not abuse its discretion when it granted Stepmother’s adoption petition without Mother’s consent.In T.H. and C.H. v. R.J. and K.J., a 19-page opinion, Judge Pyle writes:
Grandparents appeal the juvenile court’s order granting sole physical and legal custody of B.J. to R.J. (“Mother”) and Stepfather (collectively, the “Parents”). The juvenile court had previously adjudicated Grandparents as de facto custodians of B.J., thereby giving them the ability to seek custody. On appeal, Grandparents argue that the evidence did not support the juvenile court’s findings of fact and its ultimate conclusions. The Grandparents also claim they were entitled to continued court-ordered visitation with B.J.In Thomas Mack v. State of Indiana , a 24-page opinion, Judge Najam writes:
Concluding that the evidence supported the juvenile court’s factual findings, that the Grandparents failed to rebut the presumption of awarding custody of B.J. to the Parents, and that there was no error in discontinuing court-ordered visitation with Grandparents, we affirm the juvenile court’s order.
Among other things, we hold that, in light of the facts and circumstances of this case, a lapse of at least “a few minutes” between a declarant’s perception of an event and his statement describing that event was too long to qualify the statement as a present sense impression under Indiana Evidence Rule 803(1). We also hold that the admission of this hearsay violated Mack’s right to confront the declarant. Nonetheless, these errors were harmless beyond a reasonable doubt. As such, on these and all other issues, we affirm Mack’s convictions.NFP civil opinions today (6):
NFP criminal opinions today (15):
Ind. Law - Firearms on campus? Legislators to try again this year
Reprinted in the Indiana Economic Digest is Maureen Hayden's long, fact-filled story on efforts to legalize firearms on campus. SIt begins:
Another gun battle may be looming at the Capitol, this time involving firearms on campus.
Gun advocates again hope to prevent state colleges and universities from restricting students who want to bring licensed handguns on campus.
A measure in the works would allow students the protection of a gun from menaces lurking on and near campus, advocates say - especially at night.
University officials oppose the Legislature's meddling in their existing policies. The state's two largest schools, Indiana University and Purdue University, have resisted previous attempts to keep them from imposing firearms rules that are tougher than existing state law.
Joe Newport, head of public safety at Indiana State University, said in an email that keeping students safe on campus isn't an easy job.
“I’m certain allowing possession of firearms would make it more difficult," he said.
In recent years, the General Assembly has loosened firearm restrictions and forbidden cities and towns from banning handguns on most public property.
Last year, a bill that would have required K-12 schools to hire armed guards failed after a contentious fight. But legislators did vote to allow adults to keep guns locked in their vehicles in K-12 school parking lots.
A similar measure to ease college campus restrictions died last year.
But Rep. Heath VanNatter, R-Kokomo, who plans to co-author a new version of the bill, hopes it comes up for debate when legislators convene in January.
“It’s a law that makes sense,” said VanNatter. “Law-abiding citizens with licensed handguns should be able to protect themselves virtually anywhere.”
Ind. Courts - More on: Really? Two public complaints in two years, immortalized in court opinions, is not enough? [Updated]
Bryan Corbin, spokesman for the attorney general, said smoking is not permitted and does not happen inside the agency's offices. He said the records in the case that came before Riley were filed before Najam raised his objections and that changes have been made.The ILB has added emphasis - "this category"? Does that "category" mean the ones that otherwise might smell of tobacco smoke?
"The Attorney General's Office has shifted this category of criminal cases into a new paperless workflow using electronic scans of court records, not original paper copies," Corbin said in an email to the Indianapolis Star. "As we now scan such records, the condition of paper in the paper file should not be an issue, at least not for the Attorney General's Office."
[Updated at 4:41 PM] Above the Law has now picked up this story, again.
Ind. Courts - More on: Supreme Court's presentation to the State Budget Committee
Ind. Decisions - Supreme Court decides one today, reading reasonable person standard into public intoxication law
In Rodregus Morgan v. State of Indiana, a 13-page, 5-0 opinion, Justice David writes:
Rodregus Morgan was convicted under Indiana’s public intoxication statute for being intoxicated in a public place and engaging in annoying conduct. Morgan challenges his conviction on two possible grounds. First, that the Indiana public intoxication statute is unconstitutionally vague. Second, that there was insufficient evidence for his conviction. * * *
[W]e uphold the constitutionality of Indiana’s public intoxication statute, Ind. Code § 7.1-5-1-3, by reading a reasonableness standard into “annoys.” * * *
[Here] the requirements for conviction under Indiana’s public intoxication statute have not been met, and there is insufficient evidence to sustain Morgan’s conviction. * * *
Conclusion. An objective reasonable person standard should be read into Indiana’s public intoxication statute when applying the term “annoys.” Under that reading, the statute is not unconstitutionally vague. Furthermore, in applying the reasonableness standard, there is insufficient evidence to sustain Morgan’s conviction for public intoxication. We therefore vacate Morgan’s conviction for Count II Class B misdemeanor public intoxication.
Ind. Decisions - "Supreme Court dismisses final right-to-work challenge"
Dan Carden reports in a long story today in the NWI Times:
Indiana's right-to-work law will remain in effect for the foreseeable future after the Indiana Supreme Court tossed the sole remaining constitutional challenge to the controversial labor statute.The Times accompanies the story with the one-page Zoeller v. Sweeney ruling dismissing the lawsuit.
In an order dated Tuesday but released Wednesday, the state's high court vacated Lake Circuit Judge George Paras' Aug. 13 ruling that found the 2012 law unconstitutionally required labor unions provide services to nonunion members without compensation.
The action was not unexpected after the Supreme Court upheld the right-to-work law Nov. 6 in a 5-0 decision overturning a similar finding by Lake Superior Judge John Sedia that the law was unconstitutional.
Ind. Courts - Supreme Court's presentation to the State Budget Committee
Each budget year state governmental entities appear before the State Budget Committee, presenting their plans and budget requests for the next biennium. Here is this year's schedule. Yesterday morning, the Supreme Court made its presentation.
The ILB looks forward every two years to reading the Court's transmittal letter, which is the overview of its requests. For instance, here is a Nov. 24, 2008 post discussing and linking to then CJ Shepard's 15-page transmittal letter, accompanying the FY 2009-2011 request. And here is the 30-page Supreme Court Transmittal Letter for the 2013-2015 biennium.
This year, according to this budget committee page (scroll down to Dec. 17), it appears the Supreme Court did not prepare a transmittal letter to accompany the bare-bones sheets of numbers. This seems odd, in this era of more openness.
The numbers themselves are very interesting, but difficult to understand without the explanation and overview.
Ind. Courts - "Is City Court really needed in Winchester?"
So asked Darrel Radford, Winchester News-Gazette City Editor, in this snippet on Dec. 17:
Winchester’s City Court doesn’t bring in a lot of dollars. But some officials believe having it makes a lot of sense.
Monday’s City Council meeting turned into a cross-examination of sorts about the court, particularly since its veteran judge, David Coffman, has decided not to run for re-election next year.
Clerk-Treasurer Vicki Haney said from a fiscal responsibility standpoint, perhaps it would be a good time to discuss the court and its value. She reported that revenues over the past three years has only topped about $5,000, while the annual budget to keep the court going is $38,000.
Ind. Gov't. - "Marshall County to Join Lawsuit over Theft of Documents"
Marshall County Attorney Jim Clevenger and Marshall County Recorder Marlene Mahler discussed with the commissioners this week the theft of 2,700 documents totaling 39,000 pages out of the county’s computer system.
Clevenger noted that several other counties are facing the same issue with the same company and have been asked to join a multi-county action against the company. Representatives of LPS Real Estate Data Solutions reportedly went in and took data out of the recorder’s office without going through the proper channels to pay for the data wanted. A civil action will be filed against LPS to recover damages for the stolen data and punitive damages.
Chicago Attorney Jason Williams has submitted a proposed contingency fee representation agreement to represent the county in federal court. He’ll be responsible for all expenses.
The recorder’s office would normally charge $1 per page so the company would owe $39,000. The lawsuit would triple that amount.
Wednesday, December 17, 2014
Ind. Decisions - 7th Circuit decides one Indiana case today
In Kurt Stuhlmacher v. Home Depot U.S.A., Inc. (ND Ind., Rodovich), a 9-page opinion, Judge Williams writes:
Kurt Stuhlmacher’s parents pur-chased a ladder from Home Depot so that their son could work on the roof of a cabin he was building for them. Kurt was using the ladder for the first time when it fell, causing him to fall. Kurt and his wife brought a personal injury action against Home Depot and the ladder’s manufacturer, Tricam Industries. At trial, the Stuhlmachers’ expert, Dr. Thomas Conry, testified that the ladder was defective, likely causing Kurt to sense instability and involuntarily shift his weight. The magistrate judge struck Dr. Conry’s testimony, finding that Dr. Conry’s explanation of how the accident oc-curred did not “square” with Kurt’s testimony that the lad-der shot out to his left.
Because the testimony was stricken, the Stuhlmachers did not have any evidence showing causation, so the judge entered judgment as a matter of law for the defendants. We hold that the magistrate judge abused his discretion in strik-ing Dr. Conry’s testimony. We reverse the judgment of the district court and remand the case for a new trial.
Ind. Courts - Really? Two public complaints in two years, immortalized in court opinions, is not enough?
That is what the ILB wrote in this post, on Oct. 7, 2014, after the press had picked up on this Oct. 2nd ILB post, which referenced two different Court of Appeals opinions remarking in footnotes that the transcript had returned to the court reeking of tobacco.
Today, in Gary Elvers v. State of Indiana, on p. 2, the Court writes, in no uncertain terms:
In two prior memorandum decisions, our court noted that the record emitted a foul odor consistent with cigarette or pipe smoke, and we asked that those who handle the appellate record refrain from such contamination in the future. See Rice v. State, No. 49A02-1401-CR-12 (Ind. Ct. App. Sept. 30, 2014); Wampler v. State, No. 09A02-1201-CR-61 (Ind. Ct. App. July 3, 2012). It appears that our requests were disregarded because the record in the instant case is permeated with the same repugnant stench. The fact that all three of these malodorous records were handled by the same Deputy Attorney General prompts us to direct this third entreaty to the Office of the Attorney General with the demand that our request for clean, unscented records be heeded.The Deputy Attorney General on all three cases is listed on the opinions as Ian McLean. As a reader noted in commenting on one of the earlier posts:
If all state offices are indeed smoke-free, it is surprising that such a strong odor of smoke remains with a transcript weeks later when the case arrives in a judge's office.
Ind. Decisions - Court of Appeals issues 5 today (and 9 NFP)
For publication opinions today (5):
In Robert Holland v. Lake County Treasurer John Patelas , an 8-page opinion with a pro se appellant, Judge Riley writes:
Issue. Whether Holland received insufficient notice of the tax sale proceedings in violation of his right to due process, thereby rendering Born’s tax deed void. * * *Dennis Boyer and Richard Smith v. Ernest Smith, Suzanne Cassidy, and In-Plas, Inc. is a 14-page opinion by Sr. Judge Barteau.
Holland seeks reversal of the trial court’s Order granting the issuance of a tax deed to Born. Specifically, he claims that he is entitled to relief under Indiana Trial Rule 60(B)(1)-(4),(6), and (8) because he was deprived of his Property without due process. Notwithstanding the fact that Holland’s argument is entirely void of cogent reasoning and primarily relies on facts that are not in the record, we find that another procedural defect precludes our review of the merits of this case. See Ind. Appellate Rule 46(A)(8)(a). * * *
[W]e conclude that Holland’s appeal is improperly before our court because the trial court did not rule on his Motion to Set Aside pursuant to Trial Rule 60(B). Dismissed without prejudice and remanded for further proceedings.
In Joseph Dixson v. State of Indiana , a 7-page opinion, Chief Judge Vaidik writes:
Joseph Dixson was convicted of Class A misdemeanor battery after a tussle with a security officer. Dixson now appeals, arguing that the trial court erred in instructing the jury on self-defense at his trial. Because this case does not involve deadly force, we conclude that the trial court erred in instructing the jury that, among other things, Dixson had to show that he had a reasonable fear of death or great bodily harm in order to prevail on his self-defense claim. We find the error to be harmless, however, and we therefore affirm. * * *In Gary Elvers v. State of Indiana, an 18-page opinion, Judge Riley concludes:
Although we conclude that the trial court erred in instructing the jury, reversal is not necessary. Any error in instructing the jury is subject to a harmless-error analysis. Randolph v. State, 802 N.E.2d 1008, 1011 (Ind. Ct. App. 2004), trans. denied. Errors in the giving or refusing of instructions are harmless where a conviction is clearly sustained by the evidence and the instruction would not likely have affected the jury’s verdict. Id. at 1013. That is true here because the uncontradicted evidence shows that Dixson did not have a right to be in the Duvall cafeteria when the incident occurred: he disregarded the facility’s protocols for entering the cafeteria and he disregarded Hoosier’s commands to re-enter the cafeteria correctly. See McCullough, 985 N.E.2d at 1138 (a defendant claiming self-defense must show three things, including that he was in a place where he had a right to be and he acted without fault). The same evidence also shows that Dixson did not act without fault. Because the uncontradicted evidence negates Dixson’s self-defense claim, we cannot conclude that the error in instructing the jury affected the jury’s verdict.
Based on the foregoing, we conclude that the Synthetic Drug Law is not unconstitutionally technical; the State properly enhanced Elvers’ charges based on the weight of the synthetic drugs in their adulterated form; the Information sufficiently apprised Elvers of the crimes with which he was charged; the search warrant is not defective; and there is sufficient evidence to support a conviction for dealing in a synthetic drug. We further conclude that the State improperly charged Elvers with two Counts of dealing in the synthetic drug JWH-122 and remand with instructions for the trial court to vacate the conviction on Count V.In Tyrone Winkleman v. State of Indiana, a 14-page opinion, Chief Judge Vaidik writes:
Tyrone Winkleman was convicted of Class A felony robbery resulting in serious bodily injury, Class A felony kidnapping, and Class B felony criminal confinement, and sentenced to seventy-six years for kidnapping a truck driver in Elkhart, Indiana. Winkleman now appeals, arguing that the trial court committed fundamental error in instructing the jury because it omitted an element from the kidnapping instruction, failed to advise him of his Boykin rights before he pled guilty to the habitual-offender allegation, and abused its discretion in identifying four of the aggravators when sentencing him. Concluding that the jury instruction does not constitute fundamental error, Winkleman has failed to establish on this record that he did not know he was waiving his Boykin rights, and the trial court did not abuse its discretion in identifying the aggravators, we affirm the trial court.NFP civil opinions today (2):
NFP criminal opinions today (7):
Ind. Decisions - Supreme Court decides one today
In Shawn Blount v. State of Indiana, a 15-page, 5-0 opinion, Justice Massa writes:
Shawn Blount appeals his conviction for being a serious violent felon in possession of a firearm, arguing (1) the trial court erred by admitting a detective’s testimony that a witness identified Blount as the suspect, and (2) he was prejudiced by a material variance between the allegations against him and the proof used to convict him. We are asked to decide whether the detective’s testimony was inadmissible hearsay; finding it was, we hold the trial court abused its discretion by admitting it. Nevertheless, because we conclude the error was harmless and find no variance between the charging information and the evidence presented at trial, we affirm Blount’s conviction. * * *
Ultimately, the State’s use of a direct quote from the charging information—“on or about”—during closing argument cannot and does not constitute a variance where time is not an element of the offense. Because we find no variance between the pleading and the proof, we find no error.
Courts - More on "Ferguson, Missouri Demands High Fees To Turn Over City Files"
On Sept. 29th the ILB posted "Ferguson, Missouri Demands High Fees To Turn Over City Files. And it should come as no surprise! What about Indiana?." This was followed on Nov. 12th by "Conference of Chief Justices and Conference of State Court Administrators respond to 'Guilty and Charged'" and on Nov. 24th by "Indiana Trial Court Fee Manual worth perusing."
On Dec. 10th the St. Louis RFT (Riverfront Times) published this long story by Lindsay Toler, headed "Ferguson, 6 St. Louis County Cities Sued to Stop 'Illegal' Municipal Court Fees." The story begins:
It's not just Ferguson.Here is a report on the St. Louis City and St. Louis County region municipal courts that begins:
At least six other St. Louis county municipalities impose the municipal court fines and fees that drew widespread criticism during Ferguson protests as unnecessarily predatory against poor and black residents. Now a team of lawyers has filed seven class-action lawsuits demanding that courts halt their rapacious fine structures and reimburse defendants in Ferguson, Beverly Hills, Fenton, Jennings, Pine Lawn, Wellston and Velda City.
Thomas Harvey, founder of the ArchCity Defenders, which provides legal services to the homeless and working poor, says there's no basis in state law for some of the fees some courts levy, such as a $50 fee to recall a warrant or a $15 fee for the letter alerting a defendant that he or she failed to appear in court.
"These fees have nothing to do with justice," Harvey tells Daily RFT. "We have to separate out the generation of revenue from the administration of justice."
This report is the product of Better Together’s study of municipal courts in St. Louis City and County. The data and the qualitative evidence in this report point to a troubling and systemic issue in our region: Many of the municipal courts in St. Louis County have lost the trust of their communities, particularly those in which residents are predominantly African-American and poor. In these municipalities, because of a lack of oversight and an overreliance on court fines and fees, the courts are viewed as punitive revenue centers rather than centers of justice.
Ind. Gov't. - Kentucky ethics enforcer says tough rules curb lawmaker misconduct
Maureen Hayden, CNHI State Reporter, has a long story Monday in the Greensburg Daily News. A few quotes:
Anthony Wilhoit was pleased to hear some Indiana good-government advocates describe his beloved Kentucky as the state with the “toughest ethics law” in the nation.The ILB has obtained a copy of the Harvard report mentioned in the story. The story looks at public perception of corruption in the three branches of government and how each state scores. "Illegal executive corruption" is rated "moderately common" in both Indiana and Illinois, among other states. This was a surprise to the ILB: Illinois, of course, has had many recent governors sent to prison! Both Indiana and Illinois, as well as Kentucky, scored "very common" (4 out of 5) for "Illegal Corruption Legislative." For "Illegal Corruption Judicial", Indiana scored 1 out of 5 - "not at all common."
For 17 years, as head of the independent Kentucky Legislative Ethics Commission, Wilhoit's been the chief enforcer of rules that govern the conduct of lawmakers as it relates to their elected duties. * * *
Wilhoit is glad to hear that Indiana legislative leaders have pledged to tackle ethics reform – a decision brought on by high-profile scandals over the last year that exposed some gaping holes in ethics rules. But he cautions that stricter rules that force legislators to be more transparent aren’t a panacea.
“It’s good, but that doesn’t necessarily prevent them from doing things they shouldn’t,” Wilhoit said during an interview.
He knows. He’s gotten after legislators in Kentucky for violating wide-ranging rules that, among other things, compel lawmakers to disclose any economic interest in a matter that comes before them -- and then bars them from ever voting or even voicing support for it.
A lawyer and judge in an earlier career, Wilhoit favors preventative action when he can. He recalls watching live video of a state Senate debate and seeing a particular lawmaker move to vote.
“I knew he had a clear conflict of interest, so I called down to the floor and got him on the phone,” Wilhoit said. “I warned him not to do it.”
And he didn't.
Most the time, Wilhoit and his commission rely on lawmakers to follow the rules. Not everyone does, no matter the clarity of the rules.
A few years ago, the commission fined a lawmaker who voted to include a $170,000, no-bid sewer project in the state budget without disclosing some key information: The lawmaker owned the company that was awarded the bid.
Wilhoit thought that might result in a felony charge. That fell through when a chief witness dropped dead. * * *
Kentucky’s bumpy road to ethics reform came only after two major scandals in the 1990s. One was a federal bribery investigation that exposed 15 lawmakers who sold their votes, some for as little as $100. The other involved a governor’s spouse convicted of extorting more than $1 million in contributions from state contractors.
“We can’t say that kind of behavior doesn’t go on now,” Wilhoit said. “But it’s not one-tenth of what it was back then.”
Wilhoit’s commission has taken some hits for not being tough enough. A Harvard University study released last week gave both Indiana and Kentucky poor grades for their legislative ethics.
Wilhoit said the study, based on polling of political reporters, is too harsh.
But its conclusion still worries him. It’s why he spends much of his time “trying to hammer” the message to lawmakers that their behavior matters.
“I tell them, 'You all got to be very careful about the appearance of the things you do,'” he said. “Because people just don’t trust their leaders anymore.”
Tuesday, December 16, 2014
Stage Collapse - More on: "Cincinnati girl hurt at state fair challenges Indiana damages cap"
The videocast of yesterday's oral argument in J.P., et al, v. Mid-American Sound, et al is now available.
Ind. Decisions - Supreme Court decides one today, re modification of child support orders
In Mark Rolley v. Melissa Rolley, a 2-page, 5-0 per curiam opinion, the Court concludes:
The Court of Appeals and the parties draw our attention to conflicting precedent in this field. Compare Hay v. Hay, 730 N.E.2d 787, 794-95 (Ind. Ct. App. 2000), and Reinhart v. Reinhart, 938 N.E.2d 788, 791-93 (Ind. Ct. App. 2010) (both reasoning that an agreed child support order can be modified only upon a showing of a substantial and continuing change in circumstances), with Marriage of Kraft, 868 N.E.2d 1181, 1185-89 (Ind. Ct. App. 2007), and Rolley, 13 N.E.3d at 526-31 (both reasoning that under the modification statute an agreed child support order can be modified based on either a substantial and continuing change in circumstances or, after twelve months, a twenty percent deviation).ILB: The ILB has emphasized the statement signifying that this Supreme court opinion must be read in conjunction with a portion of the COA opinion (which the ILB has linked).
We agree with Judge Pyle’s analysis and the result reached by the Court of Appeals in the present appeal. We therefore grant transfer, adopt that portion of the opinion of the Court of Appeals that addresses the available grounds for modification, and incorporate it by reference. See Ind. Appellate Rule 58(A)(1). We summarily affirm the part of the opinion of the Court of Appeals addressing the trial court’s calculation of Mark’s support obligation. See App. R. 58(A)(2).
Ind. Decisions - Court of Appeals issues 7 today (and 15 NFP)
For publication opinions today (7):
In In Re the Paternity of T.H., Tyrone Hutchins, Jr. v. Kellishia Kelly, a 9-page opinion, Judge Riley writes:
Appellant-Respondent, Tyrone Hutchins (Father), appeals the trial court’s denial of his Petition to Rescind or Vacate Paternity Affidavit. We affirm.In Thomson, Inc. n/k/a Technicolor USA, Inc., et. al. v. XL Insurance America, Inc. f/k/a Winterthur International America Insurance Co., et. al., a 19-page, 2-1 opinion, Judge Kirsch writes:
Father raises one issue on appeal, which we restate as follows: Whether the trial court abused its discretion when it denied Father’s Petition seeking to rescind or vacate the paternity affidavit which he executed when he was a minor. * * *
The Indiana Code has no provision for the filing of an action to disestablish paternity. In re Paternity of H.J.B., 829 N.E.2d 157, 159 (Ind. Ct. App. 2005). Rather, the Indiana statutes governing paternity actions provide a means to establish paternity, not to disestablish it. * * *
Time and again, we have emphasized that allowing a party to challenge paternity when the party has previously acknowledged himself to be the father should only be allowed in extreme and rare circumstances. In re Paternity of R.C., 587 N.E.2d 153, 157 (Ind. Ct. App. 1992). This is not one of those circumstances. At no point during the proceedings does Father enunciate a belief that he is not T.H.’s biological father. Even though he unsuccessfully requested a paternity test in 2008, when the child was nine years old, Father never once stated that he doubted T.H.’s paternity. Rather, he readily admitted to having had sexual relations with Mother and, at the time of the birth, clearly fostered no doubt that he was the child’s biological father. Moreover, it was Father who took the initiative in November 2000, to request court-ordered visitation. Despite numerous court appearances since 2000, Father did not raise the issue of rescinding the paternity affidavit until September 14, 2013—curiously after all his requests for modification of child support fell for naught. Stripped to its bare essence, Father’s argument boils down to an invitation to reweigh his and Mother’s credibility and to find in his favor—this task which is not reserved for us. We affirm the trial court.
Thomson, Inc. n/k/a Technicolor USA, Inc. (“Thomson”) appeals the trial court’s order granting summary judgment in favor of XL Insurance America, Inc. f/k/a Winterthur International America Insurance Company (“XL”) on Thomson’s claim for insurance coverage. Thomson raises several issues on appeal, of which we find the following dispositive:In Sandra Akiwumi v. Eric Akiwumi, invloving a pro se appellant, Judge Crone wrrites:
I. Whether the trial court erred in granting summary judgment to XL because the trial court incorrectly concluded that the known loss doctrine prohibited Thomson from recovering under its primary or umbrella policies issued by XL as to the Taiwan site.
II. Whether the trial court erred in granting summary judgment to XL because a material issue of fact exists as to whether Thomson knew about contamination at the particular area of the Circleville, Ohio site at issue. * * *
Based on the evidence, we conclude that a material issue of fact exists as to whether Thomson had actual knowledge of its liability as to contamination at the raw materials handling area prior to the purchase of XL’s policies. Because a material issue of genuine fact exists, summary judgment was not proper, and the trial court erred in granting XL’s motion as to the Circleville Plant. We, therefore, reverse the trial court’s grant of summary judgment in favor of XL and remand for further proceedings. Reversed and remanded.
ROBB, J., concurs.
BAKER, J., dissents with separate opinion. [that begins, at p. 16] I respectfully dissent. I believe that the known loss doctrine prohibits Thomson from recovering its damages stemming from both the Taiwan and Ohio sites.
Underlying the known loss doctrine is a well-established and prudent principle that “a party may not intentionally turn a blind eye in order to avoid application of the known loss doctrine.” Gen. Housewares, 741 N.E.2d at 414 n.3. In other words, the application of this doctrine—or the declination to apply it—should not encourage would-be insureds to bury their heads in the proverbial sand. That would be bad public policy, indeed.
Sandra Akiwumi (“Mother”) appeals the trial court’s order finding her in contempt for denying Eric Akiwumi (“Father”) parenting time with their son and failing to notify Father of her new employer’s name, address, and phone number. Mother also appeals the trial court’s award of attorney fees to Father. She argues that she was denied due process because she was not afforded a full opportunity to be heard. She also argues that the evidence is insufficient to support the trial court’s contempt findings and that the trial court abused its discretion in ordering her to pay attorney fees. We conclude that Mother was not denied due process, that there is sufficient evidence to support the contempt findings, and that she waived her challenge regarding attorney fees. Accordingly, we affirm.In Chad Folkening, DSL.Com, Inc. and eCorp, v. Megan Van Petten n/k/a Megan Van Petten Walton, a 10-page, 2-1 opinion, Judge Crone concludes:
Based on the foregoing, we affirm the trial court’s conclusion that the ten-year limitation period of Indiana Code Section 34-11-2-11 applies and therefore affirm its judgment in favor of Van Petten. Affirmed.In In Re: The Marriage of Helen Fisher v. Ronald Fisher, a 10-page opinion, Judge Robb writes:
MATHIAS, J., concurs.
RILEY, J., dissents with opinion. [that begins, a p. 10] I respectfully disagree with the majority’s reasoning to affirm the trial court’s “conclusion that the ten-year limitation period of Indiana Code [s]ection 34-11-2-11 applies” rather than the six-year statute of limitation of I.C. § 34-11-2-9, which is imposed on written contracts for the payment of money.
Following dissolution of the marriage of Helen Fisher and Ronald Fisher, Helen appeals the trial court’s division of property. Helen raises the following issues for our review: (1) whether the trial court abused its discretion in valuing and distributing an IRA account; and (2) whether the trial court abused its discretion by declining to deviate from the presumptive fifty-fifty split of marital assets. Concluding the trial court erred in its valuation and distribution of the IRA, but that the trial court did not abuse its discretion by dividing the marital assets evenly, we affirm in part, reverse in part, and remand for further proceedings consistent with this opinion.In Preferred Professional Ins. Co., and Hills Ins. Co. Inc., v. Crystal West, William West, and Ind. Dept. of Ins., Patient's Comp. Fund, a 31-page opinion, including a concurring opinion, Judge Kirsch concludes:
We affirm the Marion County trial court’s determination that the Wests’ allegations constitute claims of common law negligence, not medical malpractice, and thus do not fall within the MMA. Accordingly, its grant of summary judgment in favor of the Wests and PCF was not erroneous. Affirmed.In In the Matter of the Civil Commitment of W.S. v. Eskenazi Health, Midtown Community Mental Health, a 12-page opinion, Judge Crone writes:
BAKER, J., concurs.
ROBB, J., concurs in result with separate opinion. [that begins, at p. 30] I respectfully concur in the result reached by the majority. I, too, agree that the Wests’ claims do not fall within the MMA and therefore the trial court properly granted summary judgment to the Wests and PCF. However, I would arrive at that conclusion by a slightly different path.
W.S. appeals the trial court’s order on review of his regular mental health commitment. W.S. has been involuntarily committed to Eskenazi Health, Midtown Community Mental Health (“Midtown”) pursuant to a regular commitment since March 2009. Following a hearing upon W.S.’s petition for review, the trial court determined that W.S. is mentally ill and gravely disabled and should remain under a regular commitment at Midtown for a period of time expected to exceed ninety days. The court’s order provided, as a condition of the regular commitment, that W.S. take all medication as prescribed. W.S. argues that the trial court’s order is not supported by clear and convincing evidence. Finding clear and convincing evidence that W.S. is mentally ill and gravely disabled but that the trial court should hear additional evidence regarding the portion of the order regarding medication, we affirm and remand for further hearing.NFP civil opinions today (6):
State of Indiana and Indiana Department of Correction v. Ray Miles (NFP) - "The State appeals the Madison Circuit Court’s order determining that Ray Miles (“Miles”) is not required to register as a sex offender for his lifetime. We affirm."
NFP criminal opinions today (9):
William Temple v. New Castle Correctional Facility (NFP) - "The Henry Circuit Court failed to follow this Court’s explicit instructions to transfer this cause to the Marion Superior Court. Instead, on July 21, 2014, the trial court denied Temple’s petition and granted summary disposition to New Castle Correctional Facility. Inasmuch as the trial court failed to follow this Court’s instructions on remand, we again reverse and remand with the same instructions."
Ind. Gov't. - More on "In Spencer County, more than $200,000 worth of public records were copied without payment"
Updating this ILB post from Dec. 10th, the ILB has received a copy of a ND Ind. order from Dec. 4, 2013 in a similar case, also involving LPS Real Estate Data Solutions, and another Indiana county, St. Joseph.
Here, in an order denying a motion for judgment on the pleadings, LPS unsuccessfully contended that St. Joseph County cannot have it both ways:
On November 24, 2011, Defendant LPS Real Estate Data Solutions Inc. (“LPS”) entered into an Agreement with the Recorder, whereby they agreed to pay a monthly access fee in order to access and abstract documents from the Recorder’s databases. [DE 30 ¶¶ 8, 9 and DE 29-1]. The Agreement is attached to the complaint as an exhibit. [DE 29-1]. Under the Agreement, LPS paid a $500 monthly fee for unlimited access to the Laredo system. [DE 30 ¶¶ 8, 9 and DE 29-1]. The Agreement also contained a clause stating that “[c]opies of documents made from the Laredo system shall be charged $1.00 per page as per statute.” [DE 29-1 ¶ 8A].From the Court's discussion:
St. Joseph County alleges that in March 2013, it discovered that LPS downloaded 42,606 documents or 191,924 pages from the Laredo system without paying for the copies. [DE 29 ¶ 10]. Though LPS had presumably paid its monthly access fees as called for in the Agreement, St. Joseph County alleges that LPS breached the Agreement by failing to pay an additional $1.00 per page copy fee for documents it downloaded from the Laredo system. [DE 29 ¶ 11]. St. Joseph County accordingly initiated this action on May 13, 2013 by filing a complaint against LPS Real Estate Data Solutions, Inc., and LPS Applied Analytics LLC. [DE 1].
The parties’ dispute centers around the extent of the Recorder’s authority to charge fees relating to its provision of enhanced access to its public records. “As an additional means of inspecting and copying public records,” Indiana law authorizes any local public agency to “provide enhanced access to public records maintained by the public agency.” Ind. Code § 5-14- 3-3.6(b). Enhanced access is defined as the “inspection” of a public record by anyone other than the governmental entity and that “(1) is by means of an electronic device other than an electronic device provided by a public agency in the office of the public agency; or (2) requires the compilation or creation of a list or report that does not result in the permanent electronic storage of the information.” Id. § 5-14-3-2(f). The public agency may fulfill its duty of enhanced public access by “enter[ing] into a contract with a third party under which the public agency provides enhanced access to the person through the third party’s computer gateway or otherwise . . . .” Id. § 5-14-3-3.6(c)(2). If the agency contracts with a third party to provide the enhanced access, it may charge the individual receiving access a “reasonable fee to either the third party to a contract or to the public agency, or both.” Id. § 5-14-3-3.6(e). The statute does not specifically define “reasonable.” * * *
[T]he Court simply cannot conclude at the pleading stage, without any factual development, whether the fees the Recorder seeks to collect would be reasonable. Reasonableness is by its nature a fact-intensive inquiry, and without any information as to the actual cost to the Recorder of providing the services at issue or the prices it charges other consumers for those same services, and without any case law interpreting the boundaries of reasonableness in this context, judgment on the pleadings is not warranted on this basis. * * *
St. Joseph County invokes several other sources for the Recorder’s authority to collect the fees at issue, but neither properly applies. It suggests that the statute governing the fees a county recorder must charge requires the Recorder to charge $1 for each of the copies at issue. The specific provision requires a recorder to charge: “[o]ne dollar ($1) per page not larger than eight and one-half (8 1/2) inches by fourteen (14) inches for furnishing copies of records and two dollars ($2) per page that is larger than eight and one-half (8 1/2) inches by fourteen (14) inches.” Id. § 36-2-7-10(b)(5). However, by referencing page sizes, this provision plainly applies to paper copies of records that the Recorder “furnish[es],” not to the electronic copies at issue here, so this provision does not independently justify the fees in question. * * *
In conclusion, the Recorder is authorized to charge a reasonable fee for the enhanced access services it provided to LPS. However, the Court cannot conclude on the basis of only the pleadings whether the fees at issue are reasonable. Therefore, the Court cannot conclude that the Agreement’s incorporation of Indiana law prohibits such charges or that the Agreement is void as ultra vires. Accordingly, LPS’ motion for judgment on the pleadings is DENIED.
Ind. Gov't. - "Non-compliant state child services agency seeks analysis of standards"
The Indiana Economic Digest has now posted Chelsea Schneider's lengthy Sunday story from the Evansville C&P. It begins:
INDIANAPOLIS - The Indiana Department of Child Services’ failure to meet a state law aimed at limiting the workloads of its family case managers led the agency to be in non-compliance in Vanderburgh County and most of the state.
DCS officials revealed the agency lacked the staffing required to meet the standard in all but one of its 19 regions when presenting to a committee of state fiscal leaders in preparation of the Indiana General Assembly crafting a new, biennium state budget in 2015.
But DCS is not asking the state for more funding to hire more family case managers. Instead, they plan to launch an analysis of the workload standard to see if the current state law is realistic.
“The goal is not to keep throwing positions out there without at some point conducting a reassessment where we can improve processes, shift administrative functions, where we can leverage technology more effectively,” said Doris Tolliver, DCS chief of staff.
To comply with the law, at least 77 additional case managers are needed statewide, Tolliver said. Vanderburgh County would require approximately 10 more case managers, with Warrick County needing approximately four additional case managers, according to agency figures for last fiscal year.
DCS determines whether a region is complying with the law using a monthly average of cases handled by family case managers. Under the law, family case managers in a given region should not average more than 12 new cases or 17 ongoing cases. The law enacted in 2007 follows a national standard.
The news caught the highest ranking Indiana Senate Democrat off guard. Senate Democratic Leader Tim Lanane, who wrote a letter to Gov. Mike Pence regarding DCS’ non-compliance with the law, said the agency planning to launch a study wasn’t a “very satisfactory answer.”
“We certainly wouldn’t say to our citizens ‘Well, it’s optional for you to follow the law and you can take a look at how we ought to change this law as an excuse for not doing that,’” Lanane said.
The state, Lanane said, should tap into its $2 billion budget surplus to fund the 77 family case managers.
Law - "Linking To Briefs To Develop Business"
Reasons why your firm should have a publicly accessible appellate brief bank are spelled out in this Above the Law article by Mark Herrmann. Links to several brief banks, including Winston & Strawn and Jones Day. Some of the comments to the post are also worth reading. such as:
I whole-heartedly agree. First, almost all of our stuff is public anyway -- if they want to see your briefs as a template, they can just go to PACER and get it, so there's little use in trying to "protect" it. Second, it's rare that an issue is so cookie-cutter that upon seeing it the client will say they have no further use for you. More likely they will want to retain the expert litigator to apply that knowledge to their circumstances.
Moreover, a brief isn't some million-dollar idea --it's a commodity that's already been used and paid for, so by sharing it as a business-development tool, you're potentially reaping a benefit from something that someone else has already paid you for.
Ind. Courts - "Trial postponed in alleged Facebook threats case"
Interesting story by Steven Porter in the Lafayette Journal & Courier. Some quotes:
A federal jury trial that had been scheduled to begin this week in the case of a Pine Village man who allegedly made death threats against two cops and two judges on Facebook was postponed another five months. * * *
Defense attorney Ashwin Cattamanchi requested the delay in order to have more time to prepare for trial and explore possible guilty plea agreements, court documents state. He also requested that Bradbury be granted access to the law library at the Lake County Jail where he's being held.
Studying up on the law would enable Bradbury to obtain "a better understanding of the legal aspects of his case and to assist counsel in his defense," Cattamanchi wrote.
U.S. Magistrate Judge Andrew Rodovich denied the request, however, ruling Dec. 9 that Bradbury "does not have a constitutional right to access a law library once he has been provided with competent legal counsel." * * *
Bradbury is accused of threatening to "blow the Tippecanoe County Courthouse to pieces," but he and his supporters have argued that the inflammatory language he used was mere "satire."
Stage Collapse - "Cincinnati girl hurt at state fair challenges Indiana damages cap"
Yesterday oral argument was heard before a Court of Appeals panel in J.P., et al, v. Mid-American Sound, et al. Oddly, there was no live videocast of the argument. The ILB has been told by the COA representative that the videocast soon will be made available via the court's archive at the same link. As of this writing, it has not yet been uploaded. There is, however, some press coverage of the argument.
From the AP, this story - a few quotes:
The teen's attorney, Robert Peck, argued the cap on total damages from a single incident means people are unconstitutionally denied equal treatment, WIBC and WISH reported. He said that if she had suffered the same injury but had been the only casualty, she could have sought up to the $700,000 in individual damages.From a WRTV6/WIBC story by Eric Berman:
"The court understands the issues," Peck said after the hearing. "It's now in their hands." * * *
Because the maximum amount of money approved under state law already had been paid, Marion County Judge Theodore Sosin ruled in March that the cap is constitutional and the state and other defendants were not liable to pay Jordyn's claims. Her appeal of that ruling was the basis for Monday's oral arguments.
Judges questioned whether the cap violates the law requiring open access to courts. Once the teen turned down the settlement, there was no money left for her to sue for.
Fisher argued Jordyn's offer was equal to everyone else who did not suffer serious permanent injuries: 65 percent of her medical bills, with no compensation for emotional distress. He argued the Indiana Supreme Court has explicitly given legislators the power to limit the state's liability, to ensure a catastrophic incident doesn't bankrupt the treasury.
Indiana law limits what a person can collect in damages from the state to $700,000. Attorney Robert Peck isn't challenging that cap. But Peck argues a $5 million cap on the total the state can pay out in a single incident means people are unconstitutionally denied equal treatment. He notes if Jordyn had suffered the same injury but had been the only casualty, she could have sought up to the $700,000 maximum. Instead, the state offered $1,700 as her share of the $5 million pool.Jill Disis of the Indianapolis Star has this story - some quotes:
Solicitor General Tom Fisher argues Jordyn's offer was equal to everyone else who didn't suffer serious permanent injuries: 65 percent of her medical bills, with no compensation for emotional distress. He argues the Indiana Supreme Court has explicitly given legislators the power to limit the state's liability, to ensure a catastrophic incident doesn't bankrupt the treasury.
Judges questioned whether the cap instead runs afoul of the law requiring open access to courts. Once Jordyn turned down the settlement, there wasn't any money left to sue for.
Jordyn was the only one of 65 victims eligible for the settlement to turn it down. Her mother and sister were seriously injured and accepted a $400,000 settlement. Legislators later approved a one-time increase in the money pool to $11 million to cover medical bills in full, but didn't allow any new recipients or claims.
The state on Monday defended the caps outlined by the Tort Claims Act, saying it had already made an offer to Polet and had paid out the maximum amount to the other victims.
That argument was a success in Marion Superior Court earlier this year, when a judge ruled in favor of the state.
Arguing for the state Monday, Solicitor General Thomas Fisher said government officials worked to create compensation amounts that were as fair as possible.
“Not everyone is going to get the full value of what their claim is worth,” Fisher argued before the three-judge appellate court panel. “We’re not setting out on this to be unfair and arbitrary.”
Under current Indiana law, the liability of government entities is limited to $700,000 per victim. But in an event involving multiple deaths or other injuries, the liability is capped at a combined total of $5 million.
“We have no problem with the individual cap,” Peck said. “What we are questioning is how that operates given that the aggregate cap then destroys the claims of those who have just been injured catastrophically with others.”
In a statement released after oral arguments, Attorney General Greg Zoeller defended the cap.
Ind. Courts - Former Marion attorney turns himself in on warrant
Karla Bowsher has a story today in the Marion Chronicle-Tribune, but it is $$$ and all we can read is the snippet:
ILB: I looked up Mr. Beal in the Roll of Attorneys. He resigned from the Indiana bar on 8-14-2013. The Roll lists 18 concluded disciplinary cases for Mr. Beal.
A former Marion attorney who resigned last year amid misconduct charges was arrested Sunday on suspicion of forgery and check fraud, jail records show.
Shane Beal, 43, turned himself in to the Grant County Sheriff's Department after a warrant was issued in connection with one felony forgery and two counts of check fraud, Sheriff's Sgt. Eric Fields said. Grant County Prosecutor Jim Luttrull Jr. could not immediately be reached for comment late Monday.
In addition, the ILB located a Court of Appeals opinion from May 7, 2014 that begins:
Appellant-Defendant, Shane Beal (Beal), appeals the trial court’s denial of his motion for summary judgment, concluding that a genuine issue of material fact exist as to whether Beal’s representation of Appellee-Plaintiff, Edwin Blinn, Jr. (Blinn), in a federal criminal case constituted legal malpractice. We affirm.The case is Beal, Shane, et al. v. Blinn, Edwin Jr., trans. pending.
Monday, December 15, 2014
Ind. Decisions - A Lot of Law on the Way? Ten Opinion Days Remain in 2014
Commentary by Joel Schumm, professor at Indiana University's Robert H. McKinney School of Law
There are fancy clocks counting down the shopping days until Christmas, but for many appellate lawyers this time of year brings thoughts of a gift in the form of one or more opinions from the Indiana Court of Appeals. As explained in a post written about this time last year, the Court’s general desire to move cases quickly, coupled with its reporting on a calendar year basis, have generally meant that many opinions are issued near the end of the year.
That post and one written at the end of the year cataloged the number of opinions issued in the last five days of the year for the past several years.
For the past two years the average age of pending cases at year’s end has been just one month (literally 1.0). Therefore, expect a serious effort to decide many of the cases pending for more than a few months. Because a long delay in deciding a case may be caused by the three-judge panel working through a novel issue or one or two judges writing concurring or dissenting opinions, several of these opinions will likely be issued as for-publication opinions.
The Court has issued 2,027 opinions (as posted on its website, which includes rehearing opinions) so far this year. The comparable number was 2,103 last year, which might mean 2014 marks the first year-over-year increase in opinions after several years of declining numbers.
Ind. Decisions - More on "In vitro case ruled fit for trial: Diocese arguments rejected"
Updating a long list of earlier ILB entries on the Emily Herx lawsuit, including this one from Dec. 2nd, Rebecca S. Green of the Fort Wayne Journal Gazette, who has been covering this lawsuit from the beginning, reported Sunday, Dec. 14th, in a lengthy, great story headed "Jury's call: Did diocese discriminate against teacher?" that begins:
It’s come down to this: a federal court showdown between a former Catholic school teacher and the local diocese the week before Christmas.That just gives a sample, read the whole story.
For more than two years, the case of Emily Herx versus the Fort Wayne-South Bend Catholic Diocese has been winding its way through the legal channels of the U.S. civil courts – from the District Court in Fort Wayne to the 7th Circuit Court of Appeals in Chicago and back down again.
Earlier this month, the federal court of appeals cast aside the last attempt by the diocese to keep the case from going to a jury, bringing the former language arts teacher and the local bishop to an expansive federal courtroom on South Harrison Street.
At issue is whether diocesan officials discriminated against Herx in the spring of 2011, when they declined to renew her contract at St. Vincent de Paul School after she informed them she was undergoing in vitro fertilization treatments to conceive a baby.
Herx contends similarly situated male teachers, caught doing something the church views as immoral, would get to keep, and have kept, their jobs. Diocesan officials argue she violated the terms of her contract by undergoing the treatment, failing to conduct herself at all times in accordance with the teachings of the Catholic church.
So over what is predicted to be about five days, beginning Tuesday, area men and women will sit and listen to arguments and evidence, all in order to decide whether the largest religious institution in the area legally wronged a woman for trying to have a baby by means contrary to Catholic teaching.
Ind. Courts - SBT exit interview with St. Joe Prosecutor Michael Dvorak
Virginia Black of the South Bend Tribune has this long story today. Some quotes from a long, must read story:
as Dvorak prepares to leave the 10th floor space -- he announced earlier this year he would not run for a third term, and Chief Deputy Ken Cotter won the seat in November -- the office is considerably different than he found it in 2003.
The former state legislator and defense attorney has led the local criminal justice system through unprecedented changes in technology, for instance. We take for granted digital photos and recordings and cell phone GPS tracking now, but police, prosecutors and judges were forced to wrangle with the science as they began to enter courtrooms as evidence over the last decade.
Dvorak inherited the Metro Homicide Unit, originally created by former Prosecutor Michael Barnes in the early 1990s after Barnes did not file charges in the triple homicide Osco murders because of what he perceived as inadequate police work. Dvorak used that model of combining officers from the county, Mishawaka and South Bend police departments into one specialized crime-fighting unit to add the county-wide Special Victims Unit and the Fatal Alcohol Crash Team.
The units are so successful that he says Lake County officials have recently asked to visit so that they might set up a similar system.
Crimes against women and children are still harder to prove than other crimes, he acknowledges, despite the success of the SVU.
"The shocking part to me has been when you're in the courtroom and you poll jurors (during voir dire), how many jurors — 30, 40, 50, 60 years old — were victimized or know a victim? And you ask, 'Did you report it?' 'No,'" the prosecutor says. "So what's going on now in our community is maybe our numbers go up, does that mean we've got more problems? No, it means the community has greater confidence that something might be able to be prosecuted."
A prosecutor's decisions are often unpopular. Over the years, for instance, YWCA CEO Linda Baechle has accused his office of not prioritizing sex and domestic violence cases. During all three elections, whose outcomes Dvorak never took for granted, he bristled over such topics as conviction and plea agreement rates.
Conviction rates are difficult to measure, he says, because if they're high, it might be that a prosecutor is taking only sure wins to court, not merely that the staff is skilled.
During his time as prosecutor, he has fired a couple of deputies over big mistakes, but he has also seen several move into judges' seats. He says he feels privileged to have worked with a dedicated staff "to work for government wages and to give their best effort to really do well."
Through it all, he has taken exception to media coverage in an age where reporters are often forced to simplify fine points of law and complicated cases, and anonymous people can post withering and uninformed attacks on websites and social media. But to his credit, and unlike some other prosecutors in the area, he has been unusually responsive to media questions.
"We're kept on our toes by the silent footsteps of the media behind us, as we should be. And part and parcel of that is the media are going to get it wrong, and they're going to criticize us unfairly," Dvorak says. "That's all part of the imperfect system."
Ind. Gov't. - "Public Access Counselor to City Council: Be careful when calling caucuses" [Updated]
That is the headline to this Dec. 14th story in the Evansville Courier & Press by John Martin. ILB readers don't learn much news out of Evansville anymore because the C&P is behind a total paywall. The snippit which is available reads:
EVANSVILLE - The Indiana Public Access Counselor — responding to a complaint filed by the Courier & Press about a recent closed caucus involving Democrats on the Evansville City Council — implored the City Council to be more judicious when calling caucuses in the future.The ILB has been able to locate the Nov. 21st PAC opinion - Re: Formal Complaint 14-FC-254; Alleged Violation(s) of the Open Door Law by Evansville City Council. The opinion reiterates that official action may not take place in a caucus. A quote from the ruling:
I often counsel governing bodies that caucuses are a slippery slope. While they may be necessary at times to truly discuss political strategy, they should be used judiciously. The frequency of caucuses will naturally differ from entity to entity, however, any closed door meetings are treated with scrutiny and rightfully so. Mr. Danks specifically references the appearance of impropriety. This should not be taken lightly.[Updated 12-16-14] Today the Indiana Economic Digest has posted the full C&P article published yesterday.
Ind. Courts - "LaPorte prosecutors sued for alleged eavesdropping"
That is the headline to Madeline Buckeley's long weekend story in the South Bend Tribune. Some quotes:
Arrested on suspicion of murder, LaPorte County resident John Larkin agreed to an interview with Long Beach police officers with his attorney present. The Long Beach man gave a statement, but then privately conferred with his attorney when police left the room.
Unbeknownst to both him and his attorney, police and prosecutors recorded the private conversation and later listened to it while building a case against the man, a recently filed lawsuit alleges. Larkin is currently charged with voluntary manslaughter in connection with the 2012 shooting death of his wife. He says the shooting was in self-defense.
Court records show prosecutors listened to 12 minutes of conversation between Larkin and his attorney in what the lawsuit alleges was a violation of attorney-client privilege, as well as state and federal law.
The lawsuit accuses the LaPorte County prosecutor's office of eavesdropping on conversations between defendants and attorneys that take place at police stations or the county jail, noting at least one other example.
"It is a very egregious situation that should be addressed," said Chicago attorney Gregory E. Kulis, who filed the civil rights complaint on behalf of Larkin.
Prosecutors in March charged Brian J. Taylor with murder in the shooting death of a 24-year-old woman. Court documents show that Taylor told his attorney where he disposed of the gun during what they believed was a private conference at the police station. Police listened to the conversation and retrieved the gun.
Taylor's lawyers challenged the issue, and the Indiana Court of Appeals is hearing the case in a rare interlocutory appeal, which means the court takes the case before it is adjudicated. Taylor was released from jail while his appeal progresses.
The attorneys handling Larkin's criminal case are hoping for the same result, as they are asking the appeals court to hear the case while it is pending in LaPorte Circuit Court.
In the petition to the appeals court that alleges misconduct, Larkin's attorneys ask the court to grant a motion that LaPorte Superior Court Judge Kathleen Lang previously denied: to disqualify LaPorte County prosecutors from handling the case.
"They can't legally or ethically prosecute this case after listening to privileged material," said Chicago lawyer Michael Ettinger, one of Larkin's defense attorneys. * * *
Court records show deputy prosecutor Robert Neary said in court he listened to the recording, as well as Prosecutor Bob Szilagyi, deputy prosecutor Kristen Armstrong and an intern, Stephen Wicks. Armstrong later denied listening to the recording, though the defense's petition to the appeals court said her signature was on a document that contained a transcript of the 12-minute conversation.
Ind. Courts - More on "Judicial Qualifications Commission files charges against Muncie City Court Judge" [Updated]
Updating this ILB post from Dec. 11, which included a link to the 31-page charging document, the Supreme Court public information officer announced this morning:
Today, the Judicial Qualifications Commission filed a petition with the Supreme Court asking that Judge Bennington be suspended.The ILB has now posted the 11-page memo in support of the Commission's petition for interim suspension, which cites "a pervasive pattern of injudicious public conduct which has escalated during the Commission's investigation."
[Updated at 12:33 PM] Here is the new Muncie Star-Press story on the latest action.
Ind. Decisions - Court of Appeals issues 1 today (and 3 NFP)
For publication opinions today (1):
In Goodrich Quality Theaters, Inc. and Roncelli, Inc. v. Fostcorp Heating and Cooling, Inc., Wilson Iron Works, Inc., et. al., a 4-page, 2-1 opinion on a petition for rehearing, Judge Robb concludes:
On rehearing, the appellees all contend that because Roncelli posted a bond to release the lien on the real estate that provided for payment of any judgment recovered “including costs and attorney’s fees allowed by the court,” Ind. Code § 32-28-3-11(b), they are entitled to recover attorney fees against the bond. Notably, none of the appellees argue Goodrich, as an owner of the property, is liable for their attorney fees. And they all agree their original claim to fees was based solely on the mechanic’s lien statute which, as we held previously, applies only to property owners. Although Roncelli’s undertaking assures payment of any judgment plus costs and fees allowed by the court, it does not give the appellees greater rights or impose greater liability on Roncelli than the underlying obligation. Because Roncelli is not an owner of the property or the structure, it is not liable for attorney fees under the mechanic’s lien statute and cannot be liable for them under the bond. We therefore re-affirm our previous decision that the trial court erred in awarding attorney fees to the appellees.NFP civil opinions today (1):
BRADFORD, J., concurs.
RILEY, J., would deny rehearing.
NFP criminal opinions today (2):
Stage Collapse - "Appeals panel to weigh constitutionality of Indiana’s tort claim cap"
As listed in the ILB's earlier post today, the Court of Appeals will hear oral argument at 1:30 in the case of J.P., et al v. Mid-American Sound, et al.
Troy Kehoe of WISHTV has just posted this story - some quotes:
INDIANAPOLIS (WISH) – One of the victims hurt in the 2011 Indiana State Fair stage collapse will ask a state appeals court Monday to declare the state’s cap on damage payments unconstitutional.
Attorneys for Jordyn Polet of Cincinnati plan to argue that the self-imposed cap does not allow all victims to be paid equally, and has resulted in the denial of the right for Polet and other plaintiffs to seek the amount of financial damages they see fit.
Polet, who was 10-years-old at the time of the collapse, sustained leg and ankle injuries during the collapse, and suffers from post-traumatic stress disorder, according to court documents. Her sister Jaymie and mother Jill sustained much more serious injuries, and their family friend Megan Toothman later died from injuries sustained during the collapse.
Indiana’s Tort Claims Act sets the maximum total payout to victims from a single event at $5 million. That money was paid to 62 victims. In late 2012, state legislators also allocated an additional $6 million in supplemental relief to 59 victims, bringing the state’s total payout to State Fair victims to $11 million in public funds.
Jordyn Polet elected not to settle, suing the state instead, and was not paid as part of the $11 million allocated to victims. Because the maximum amount of money approved by the Tort Claims Act has already been paid, Marion County Judge Theodore Sosin ruled that the State and other defendants are not liable to pay her claims.
Polet’s attorneys will appeal that ruling Monday.
“The $5 million cap, both on its face and as applied, violates Plaintiff’s constitutional rights, which provides in relevant part [that] all courts shall be open, and every person for injury done to him and his person, property or reputation, shall have remedy by due course of law. The State’s decision to disperse the entire $5 million available under the cap to other victims of the Indiana State Fair stage collapse and then pay Ms. Polet nothing also violates [her constitutional rights],” her attorneys wrote in a legal filing supporting their original motion.
Ind. Decisions - Transfer list for week ending December 12, 2014
Here is the Clerk's transfer list for the week ending Friday, December 12, 2014. It is one page (and 8 cases) long.
One transfer was granted last week, with opinion:
- William A. Parks v. State of Indiana - This was a May 22, 2014 NFP opinion where the COA Ruled: "Parks raises one issue which we revise and restate as whether his sentence is inappropriate in light of the nature of the offense and the character of the offender. We affirm."
The Supreme Court, in its Dec. 10th opinion (see ILB post here), found the sentence to be excessive in a 3-2 decision.
Ind. Gov't. - "State Board of Accounts audit rips Beverly Shores record keeping"
That is the headline to this Dec. 9th Chesterton Tribune story by Jeff Schultz. It begins:
An audit released on Dec. 2 by the Indiana State Board of Accounts requests that Beverly Shores Clerk-Treasurer Laura Sullivan pay back to the Town a total of $6,696.91 for penalties, interest and late fees she is responsible for since taking office nearly three years ago.From the end of the long story detailing the failures:
The report asked that Sullivan reimburse $4,873.95 for penalties, late fees and interest to the Internal Revenue Service incurred in 2012 and 2013 from late payments and late filings of federal withholding taxes. With that are charges of $1,313.82 for late payments of state withholding taxes and $458.14 for late payments to the Indiana Department of Workforce Development.
Town officials and employees like the clerk-treasurer are to pay claims and remit taxes in a timely fashion, according to the report.
The report has been forwarded to the Indiana General Attorney’s office and the Porter County Prosecutor.
The Town on multiple occasions was informed by legal notice that a tax warrant was issued for failure to pay taxes due, the audit said. It has paid $6,645.91 total in penalties, interest and late fees for failure to deposit state and federal taxes on time, the audit said, and Sullivan is to pay back the amounts out of her pocket.
State examiner Paul D. Joyce, in a letter town officials dated Sept. 29, 2014, said that audit found that accurate accounting records were not maintained and because bank reconcilements were not performed with cash recorded in accounting records, there was no way to verify a cash balance.
[Town Council President Geof Benson] told the Chesterton Tribune that the Town Council was aware of the problems with [Laura] Sullivan and the discrepancies in the audit, which is done by the SBA every two years, came as no surprise. Concerns about Sullivan’s performance had been brought up regularly by town officials and residents, Benson said, but Sullivan is an elected official and therefore could not be dismissed by the Town Council.On Sunday, Dec. 12th, columnist David Rutter of the Gary Post-Tribune had a story about the debacle. A few quotes:
Sullivan could not be reached for comment on Monday.
Sullivan took office after her victory in 2011 over independent candidate Gail Saum, by 71.5 to 28.5 percent margin. A Chesterton Tribune article from that time quotes Sullivan saying her goals were to improve services to Town residents with new electronic and online technology.
A press release sent by the Porter County Democrats last week said that Sullivan will be resigning on Dec. 31 “to pursue other endeavors.” Democrat Jon L. Voelz has been appointed to take over Sullivan’s term effective Jan. 1 for what would have been the last remaining year of her term.
In the Dems’ press release, Voelz is identified as part-time clerk of the Violations Bureau.
Laura Sullivan was swept into office on the crest of a 2011 populist landslide. The people of Beverly Shores spoke, and what Sullivan was selling, the people were buying.ILB: Here is Ms. Sullivan's listing in the Indiana Roll of Attorneys, indicating she is suspended. Here is the July 18, 2006 order of the Supreme Court. You may access the 39-page, 2013 Beverly Shores audit report (Porter County) from this ISBOA database.
Modern efficiency, sound bookkeeping, integrity, goodness and no more smoking in the town hall. Yes, Sullivan would change everything. And about time, too, she said. * * *
Six hundred souls live in Beverly Shores in 340 domiciles, many of them vacation and part-time abodes at the shore. Quiet prevails. Noise is illegal, as is sex on the beach.
But there’s virtually nothing about Beverly Shores that explains Sullivan, or what she did, or how she did it, or why no one stopped her or, well, anything. Her torturous assault on the town’s bookkeeping is the stuff of fiduciary legend.
Here’s the abridged version: She messed up the village books so badly in three years that no one — even state auditors whose job is to untangle such knots — could tell what happened or how deep the chasm is.
Is the money gone? Or maybe it’s in the wrong bank account or perhaps stuffed in a motel mattress somewhere? No one quite knows.
Ever since 2011, Sullivan did almost nothing that any municipal clerk-treasurer does — balance checkbooks, reconcile bank deposits, make sure money is sent to the right places, abide by fiscal rules, pay the electric bill, funnel payroll taxes to the state and feds.
It was not that she did these tasks inefficiently. She apparently did not do them at all.
At the least, the state told her to repay $6,500 or so to cover IRS delinquencies and fines while the village tries to figure out the size of the financial our pickle it has been bequeathed. Town officials said they saw the big sour financial glacier crashing down but could not run fast enough to escape it, or her. * * *
Why Beverly Shores thought Sullivan was a good candidate is open to debate. Why she thought so is equally opaque.
Folks perhaps didn’t know she lost her right to practice law in 2006. She was accused of leaving multiple bankruptcy clients dangling over the abyss for years.
Sullivan allegedly ignored paperwork, meetings, deadlines and letting her clients know how far up the financial creek they were going to sail. Sounds familiar.
Her defense? I’m really sorry, and I did the best I could.
She also told the Indiana Supreme Court Disciplinary Committee, which banished her for at least 90 days without automatic reinstatement, that it wasn’t all her fault because she was suffering from an “acute illness.”
Sullivan presented no evidence that she was ill.
She abstained from the same defense this time. This time it was just a glacier-sized sour pickle and math that never added up.
At the end, she was sorry as heck. It was the best she could do.
Ind. Gov't. - "The share of state support in university budgets continues to decline"
A good editorial this weekend in the Fort Wayne Journal Gazette this weekend points out the ramifications. A sample:
Since 2008, Indiana’s per-student appropriation for its public universities has fallen by 13.5 percent, from $5,132 per student to $4,442. In addition, Gov. Mike Pence’s administration has placed further pressure on universities, demanding funding cuts to help build the state’s reserves.
To their credit, some lawmakers seem to understand the connection between declining state support and tuition increases. In a meeting at IPFW in August, Senate Budget Committee chairman Luke Kenley, R-Noblesville, said he was concerned that major cuts to university funding would prompt the schools to seek more money from students.
That certainly has been one effect. Another, particularly at the flagship Indiana and Purdue campuses, has been to enroll more students from abroad and from out of state. Paying full tuition rates, they help subsidize costs for Indiana students receiving in-state tuition.
In a sort of can’t-win scenario, IU and Purdue are catching heat from lawmakers who complain they aren’t serving enough students from Indiana. Forty-three percent of IU-Bloomington’s freshman class this year come from overseas or out of state; 44 percent of Purdue’s undergraduate enrollment is international students or from outside Indiana.
Catch-up: What did you miss over the weekend from the ILB?
From Sunday, December 14, 2014:
From Saturday, December 13, 2014:
- Ind. Decisions - More on: Fed. District Court grants PPINK summary judgment on its equal protection claims re statutory abortion clinics requirements
From Friday afternoon, December 12, 2014:
- Ind. Decisions - "Supreme Court makes decision in Camp Tecumseh case"
- Ind. Decisions - Why is this decision today categorized as NFP?
Ind. Decisions - Upcoming oral arguments this week and next
This week's oral arguments before the Supreme Court (week of 12/15/14):
Thursday, Dec. 18
- 9:00 AM - Board of Commissioners of Jefferson County v. Teton Corp., et al. (72S04-1410-CT-642) After a fire occurred during renovation work and damaged the courthouse, Jefferson County filed a complaint against the general contractor and subcontractors. The Scott Circuit Court entered summary judgment for the contractors. A majority of the Court of Appeals affirmed, disagreeing with Midwestern Indemnity Co. v. Systems Builders, Inc., 801 N.E.2d 661 (Ind. Ct. App. 2004), and holding that, under the construction contract, Jefferson County agreed to waive subrogation for all claims covered by its insurance policy, not merely claims for losses to "Work" property. Bd. of Comm'rs of the County of Jefferson v. Teton Corp., 3 N.E.3d 556 (Ind. Ct. App. 2014), vacated. The Supreme Court has granted a petition to transfer and assumed jurisdiction over the appeal.
ILB: This was a This was a 2-1 Feb. 4, 2014 COA opinion about whether Jefferson County's property insurance policy covered some of the costs of rebuilding the courthouse after a fire.
- 9:45 AM - Robert L. Dixon v. State of Indiana (84S01-1410-CR-683) A Terre Haute police officer observed Dixon’s car make a turn without signaling, and the officer made a traffic stop. By the time the officer had exited the police car, Dixon had exited his own. The officer ordered Dixon to return to his car, and after examining Dixon’s driver license, recognized Dixon as the person who, the officer had been previously told, had been selling narcotics in the area. A subsequent pat-down search revealed Dixon possessed cocaine. The Vigo Superior Court denied Dixon’s motion to suppress the cocaine. A divided Court of Appeals reversed in Dixon v. State, 14 N.E.3d 59 (Ind. Ct. App. 2014), vacated. The Supreme Court has granted a petition to transfer the case and has assumed jurisdiction over the appeal.
ILB: This was a 2-1 COA opinion from July 22, 2014, where the issue was: Whether Dixon’s patdown search following a traffic infraction violated his rights under the Fourth Amendment of the United States Constitution.
- 10:30 AM - Craig Sampson v. State of Indiana (87A01-1312-CR-534) At Sampson’s trial on a charge of child molesting, the Warrick Superior Court allowed testimony about whether the victim showed evidence of coaching and about the Child Sexual Abuse Accommodation Syndrome. The Court of Appeals affirmed in Sampson v. State, No. 87A01-1312-CR-534 (Ind. Ct. App. Aug. 19, 2014) (NFP mem. dec.), vacated. The Supreme Court has granted a petition to transfer the case and has assumed jurisdiction over the appeal.
ILB: This was an Aug. 18th NFP opinion, involving a child witness and the potential of witness coaching.
Next week's oral arguments before the Supreme Court (week of 12/22/14):
- No oral arguments currently scheduled.
This week's oral arguments before the Court of Appeals (week of 12/15/14):
Monday, December 15
- 1:30 PM - J.P., et al v. Mid-American Sound, et al (49A04-1405-CT-207) Jordyn Polet sued the State for damages after she was injured in a stage collapse at the Indiana State Fair. The State argued it was immune from liability because the Indiana Tort Claims Act limits the State's liability to $5 million and that amount had already been paid to others. Polet, in a motion for summary judgment, challenged that immunity and the constitutionality of the liability cap. Her motion was denied and she appeals. The Scheduled Panel Members are: Chief Judge Vaidik, Judges Friedlander and May. [Where: Supreme Court Courtroom (WEBCAST)]
Tuesday, December 16
- 11:00 AM - Hunckler v. Air Sorce-1 Inc. (69A01-1405-CR-186) In this case, Nick Hunckler appeals the grant of summary judgment in favor of Timothy Miller and Air Sorce-1. Miller, as an employee of Air-Sorce 1, installed a new furnace in the home of Hunckler's acquaintance. Hunckler helped Miller slide the furnace down the basement stairs and sustained serious injuries to his hands in the process. Hunckler brought a personal injury action that the trial court dismissed on summary judgment. The trial court found that the defendants were entitled to judgment as a matter of law because Hunckler was a volunteer and the defendants did not breach the duty of care owed to a volunteer. The Scheduled Panel Members are: Judges Baker, Kirsch and Robb. [Where: Court of Appeals Courtroom (WEBCAST)]
- No oral arguments currently scheduled.
ONLY those Court of Appeals oral arguments presented in the Supreme or Court of Appeals Courtrooms will be accessible via videocast. [Note: This may be changing...]
The past COA webcasts which have been webcast are accessible here.
NOTE: For a printable version of this list of upcoming oral arguments, click on the date in the next line. Then select "Print" from your browser.
Saturday, December 13, 2014
Ind. Decisions - More on: Fed. District Court grants PPINK summary judgment on its equal protection claims re statutory abortion clinics requirements
New developments are expected next week in a challenge to Indiana’s abortion regulations.
Although no final judgment has been issued in the case, a federal judge sided with Planned Parenthood earlier this month, calling the two abortion laws at issue “irrational” and unconstitutional.
Attorneys for both sides are scheduled to discuss Monday whether they wish to proceed to trial next year.
“We are reviewing the state of the law to determine whether, in our opinion, the case should be final now, since we did win on the one claim,” said Kenneth Falk, legal director for the American Civil Liberties Union of Indiana, who’s representing Planned Parenthood in its suit.
U.S. District Judge Jane Magnus-Stinson wrote Dec. 3 that the state has no rational basis to impose one set of regulations on an “abortion clinic” and a different set of regulations on a “physician’s office” that provides the same services.
She noted that the Planned Parenthood clinic in Lafayette is a “prime example” of the ambiguity between the two classifications, since it employs a part-time physician and primarily dispenses birth control medication, not abortion-inducing drugs.
Magnus-Stinson wrote that the Indiana statutes in question clearly violate the the U.S. Constitution’s guarantee of equal protection under the law, but she denied the ACLU’s second argument.
Falk explained that his team made two parallel arguments in its motion for summary judgment. One cited equal protection; the other cited due process. Both claimed the new abortion regulations were unconstitutional.
In denying the second argument, Magnus-Stinson didn’t rule for either side. She simply stated that both legal teams made solid points that could be assessed in trial. * * *
Throughout the legal wrangling, Lafayette’s clinic has remained open thanks to an injunction preventing the regulations from taking effect.
“For the foreseeable future, it’s business as usual,” said Tammy Weaver, communications director for Planned Parenthood of Indiana and Kentucky.