Friday, July 25, 2014
Ind. Decisions - The oral argument in the Wis./Ind. SSM appeal has been scheduled
I'm told the oral argument before a three-judge panel now has been set for August 26th. Hope to post the order shortly.
Argument set for Tuesday, August 26, 2014, at 9:30 a.m. in the Main Courtroom, Room 2721. Each side limited to 20 minutes.   [14-2386, 14-2387, 14-2388] (RS)
These appear to be only the Indiana cases.
[Still more] I'm told this means Wis. and Ind. litigants have to share their argument time, and there may be a a tug of war over who's going to make the argument for each side, given the difficulty of splitting 20 minutes between more than a single counsel.
And as the panel likely will have questions, 20 minutes in not much ...
There will be three sets of Indiana plaintiffs, plus the Wisconsin plaintiffs, represented on one side, and the Indiana and Wisconsin attorneys general on the other.
Ind. Decisions - 7th Circuit denies Ind. and Wis. petitions for hearing en banc in their SSM appeals
Here is the one-page order.
Ind. Courts - Update on Same-Sex Marriages in Indiana from the ACLU
Ind. Decisions - Reminder: Elkhart 4 felony-murder convictions to be focus of ABC's Nightline Prime on Saturday
See this site for more on ABC's Nightline Prime on Saturday.
Ind. Decisions - "Legal briefs filed in Indiana and Wisconsin cases are majority anti-gay"
That is the headline from PinkNews, identified as "Europe's largest gay news service." Some quotes:
Marriage equality opponents have filed legal briefs citing everything from political theory to social stability to biblical text in the federal court cases concerning Indiana and Wisconsin’s same-sex marriage bans.This AP story from Thursday is headed "Briefs piling up in gay marriage rulings appeal." Some quotes:
Of the almost 20 legal briefs filed, almost all supported Indiana and Wisconsin in appealing the overturning of same-sex marriage bans in the states.
One brief was filed Monday by the attorneys generals of Colorado, Alabama, Alaska, Arizona, Idaho, Louisiana, Oklahoma, South Carolina, South Dakota, and Utah.
They argue the issue of same-sex marriage should be left to the people, not to the courts. * * *
Several religious groups filed a brief Tuesday stating: “Marriage has its origin, not in the will of any particular people, religion, or state, but rather, in the nature of the human person, created by God as male and female.
“If pursued consistently, a policy of voiding laws when they reflect controversial religious or moral judgments would mean the end of representative government as we know it.”
On Wednesday, Wisconsin’s Attorney General filed a legal brief in which he compared same-sex marriage to abortion, arguing there is no fundamental right to either and calling state laws defining marriage as between one man and one woman “reasonable.”
Other briefs filed include those by individuals, interest groups, and a group of five social science professors who say studies that defend same-sex parenting are flawed.
INDIANAPOLIS (AP) — Opponents of same-sex marriage cited political theory, social stability and even biblical text in legal briefs filed this week in federal court, where Indiana and Wisconsin are appealing rulings that overthrew their bans on gay weddings.See also this ILB post from July 23rd, noting about the 10 states' amicus brief: "These are many of the same 10 states that have signed on to the numerous amicus briefs authored in Indiana and filed by Attorney General Zoeller on behalf of the citizens of the State of Indiana in same-sex marriage cases throughout the country."
At least 20 briefs have been filed in the case that's currently before the 7th U.S. Circuit Court of Appeals, including several filed Wednesday. Virtually all of the briefs stand up for the states. * * *
A brief filed Tuesday by the United States Conference of Catholic Bishops, the National Association of Evangelicals, The Church of Jesus Christ of Latter-day Saints, The Ethics and Religious Liberty Commission of the Southern Baptist Convention, and The Lutheran Church's Missouri Synod cites both the Old Testament and the New Testament to back up its argument.
"Marriage has its origin, not in the will of any particular people, religion, or state, but rather, in the nature of the human person, created by God as male and female," the churches wrote. * * *
Among the other briefs filed in the case were briefs by special interest groups, individuals, and a group of five social science professors who claim that psychological studies validating gay parenting are flawed.
You can access all the amicus briefs here, at the website of one of the attorneys representing plaintiffs in one of the three Indiana same-sex marriage cases pending before the 7th Circuit.
Ind. Decisions - 7th Circuit decides a third Indiana case today, this one a reversal
In Leonard DeWitt v. Corizon, Inc (SD Ind., Lawrence), an 11-page opinion, Judge Williams writes:
Leonard Dewitt, a 51-year-old former inmate at the Indianapolis Re-Entry Educational Facility, challenges the grant of summary judgment against him in his deliberate indifference suit and also appeals the district court’s denial of his three motions to recruit counsel. Because we find that the district court abused its discretion in denying the motions for recruitment of counsel, and those denials affected Dewitt’s ability to develop and litigate his case, we will not reach the merits of the summary judgment order. Therefore, we reverse and remand so that the court may recruit counsel and so Dewitt can conduct further discovery in order to litigate the case. * * *
Accordingly, we REVERSE the district court’s denial of Appellant’s motions for recruitment of counsel, VACATE the district court’s judgment in favor of Appellees, and REMAND for proceedings consistent with this order.
Ind. Decisions - Supreme Court finds January 7, 2013 COA order is not an appealable final judgment
In a one-page order dated July 24th, in a case before the Court on a petition to transfer, the Supreme Court writes:
We find the January 7, 2013 order is not an appealable final judgment. The order does not dispose of all claims as to all parties and does not fit within any other definition of "final judgment" listed in Indiana Appellate Rule 2(H). In addition, the order appealed is not within any of the categories of interlocutory orders from which an appeal may be taken as of right under Appellate Rule 14(A), and the appellant did not seek certification to file a discretionary interlocutory appeal under Appellate Rule 14(B). The Appellate Rules therefore do not authorize this appeal.Here is the 2-1 Jan. 27, 2014 Court of Appeals opinion. Judge Brown's dissent begins: "I respectfully dissent from the majority’s conclusion that the order is a final judgment."
Accordingly, the Court GRANTS transfer, thereby vacating the Court of Appeals opinion, and DISMISSES the appeal.
Ind. Decisions - Court of Appeals issues 5 today (and 3 NFP)
For publication opinions today (5):
In Phyllis Dodson, as Special Administrator of the Estate of Eboni Dodson, Deceased v. Curt D. Carlson, Carmel Hotel Company, d/b/a Grille 39, Seven Corners, Inc., et al., a 9-page opinion, Judge May writes:
On February 22, 2010, Curt Carlson was driving home from a business meeting over dinner and drinks at the Renaissance Hotel in Carmel, Indiana. He struck a disabled vehicle on the side of I-465 and its driver, Eboni Dodson, was killed. Dodson’s estate (hereinafter “Dodson”) sued Carlson’s employer, Seven Corners, Inc., and others. The trial court granted summary judgment for Seven Corners on the ground there was no issue of fact as to whether Carlson was acting in the scope of his employment when he hit Dodson’s car. We affirm. * * *In Joseph D. Barnette, Jr., and Charlene Barnette, and City of Carmel Department of Community Services, Division of Building and Code Services, et al. v. US Architects, LLP, Albert D. Bowen, et al., a 19-page opinion, Judge Crone writes:
Dodson brought a wrongful death and negligence action against Carlson, the hotel, and Seven Corners. Dodson alleged Seven Corners was liable for Carlson’s actions under a theory of respondeat superior. The trial court entered summary judgment for Seven Corners, noting “It is assumed from the case citations of the parties that Indiana case law has not addressed a circumstance involving an employee consuming alcohol within the course of scope of [sic] employment, and then immediately engaging in a non-employment related activity, such as driving home.” * * *
Carlson was not acting in the scope of his employment at the time of the accident. The doctrine of respondeat superior is limited by the “going and coming” rule: “an employee on his way to work is normally not in the employment of the corporation.” * * *
That Carlson’s drinking before he drove home might have been in some way work-related does not render inapplicable the “going and coming” rule. * * *
As there was no designated evidence that would suggest Carlson was outside the “going and coming” rule, the trial court properly entered summary judgment for Seven Corners, and we accordingly affirm.
Carmel residents Albert D. Bowen and Julie A. Bowen hired US Architects to design what the Carmel Zoning Ordinance (“the Ordinance”) categorizes as an accessory building. The Bowens submitted the design plans to the Carmel Department of Community Services (“the DCS”), which issued a building permit and a certificate of occupancy. The Bowens’ neighbors, Joseph D. Barnette, Jr., and Charlene Barnette, complained to the DCS about the height of the Bowens’ building. The DCS notified the Bowens that their building violated the height limits of the Ordinance and advised them to apply for a variance with the Carmel/Clay Board of Zoning Appeals (“the BZA”), which they did. The BZA denied the variance. The Bowens did not appeal the DCS’s determination that their building is too tall, nor did they appeal the BZA’s denial of a variance. The DCS again notified the Bowens that their building violated the Ordinance, that they had to bring it into compliance, and that the DCS would be withdrawing the certificate of occupancy. The Bowens did not appeal that determination.In Chris T. Collins v. State of Indiana , a 12-page opinion, Judge Robb writes:
Instead, the Bowens and US Architects (collectively “the Plaintiffs”) filed a complaint for declaratory relief against the DCS and the BZA (collectively “the City”), seeking an interpretation of the Ordinance and a determination that their building complied with it. The City filed a motion for judgment on the pleadings based on the Bowens’ failure to exhaust their administrative remedies and counterclaimed for both an injunction ordering the Bowens to bring their building into compliance with the Ordinance and a civil penalty for a zoning violation. The Barnettes filed a motion to intervene, which the trial court granted, and joined the City’s motion for judgment on the pleadings. The Plaintiffs filed a motion for summary judgment. * * *
On appeal, the Plaintiffs contend that the appeal is moot because the Barnettes cannot enforce the Ordinance on the City’s behalf. We conclude that the appeal is not moot because a party of record in the trial court is a party on appeal, and we may grant appropriate relief to any party. Also, as intervenors and parties to the judgment, the Barnettes may appeal the trial court’s judgment to the extent that it is adverse to the interests that made intervention possible in the first place.
The Barnettes contend that the declaratory judgment action should be dismissed for lack of subject matter jurisdiction because the Bowens failed to exhaust their administrative remedies. We agree. The DCS is not estopped from enforcing the Ordinance because the relevant facts were equally known by or accessible to the Bowens and the City. And because the Bowens failed to exhaust their administrative remedies, which would have afforded them due process, they cannot complain about a due process violation. Therefore, we reverse and remand with instructions to dismiss the Plaintiffs’ declaratory judgment complaint as to the Bowens and for further proceedings consistent with this opinion, such as reconsideration of the City’s counterclaims.
Finally, US Architects contends that the trial court erred in determining that it lacks standing to bring a declaratory judgment action. Because any injury suffered by US Architects would be derivative of that suffered by the Bowens, and because it may not seek an advisory opinion for guidance in designing future buildings, we affirm the trial court on this issue and remand with instructions to dismiss the Plaintiffs’ declaratory judgment complaint as to US Architects.
In sum, we affirm in part, reverse in part, and remand for further proceedings consistent with this opinion.
Chris Collins, pro se, appeals the post-conviction court’s denial of his petition for post-conviction relief, raising the following issues for our review: (1) whether the post-conviction court erred by denying Collins’s request for subpoenas; (2) whether Collins was denied the right to assistance of counsel at his guilty plea hearing where he was represented by a certified legal intern; (3) whether Collins’s plea was knowing, intelligent, and voluntary; and (4) whether Collins was denied the right to effective assistance of counsel. Concluding the post-conviction court’s denial of Collins’s request for subpoenas was not an abuse of discretion and that its denial of Collins’s petition for post-conviction relief was proper, we affirm.In Jennifer L. Patch v. State of Indiana , a 7-page opinion, Judge May writes:
Jennifer L. Patch appeals her conviction of Class B felony conspiracy to commit burglary. She asserts two issues on appeal: 1. Whether the evidence was sufficient to support her conviction, and 2. Whether the trial court properly denied her motion for mistrial when the prosecutor conferred with a State’s witness between direct and cross examinations. We affirm.In Michael B. Eliseo v. State of Indiana, a 6-page opinion, Judge May writes:
Michael B. Eliseo appeals an order that he pay $300.00 for a supplemental public defender service fee and $166.00 in court costs. He asserts the trial court abused its discretion in imposing a public defender fee larger than $100.00 and erred in assessing the fee and costs without an explicit finding that he was able to pay. We affirm. * * *NFP civil opinions today (1):
Michael B. Eliseo appeals an order that he pay $300.00 for a supplemental public defender service fee and $166.00 in court costs. He asserts the trial court abused its discretion in imposing a public defender fee larger than $100.00 and erred in assessing the fee and costs without an explicit finding that he was able to pay. We affirm.
NFP criminal opinions today (2):
Ind. Decisions - 7th Circuit decides two Indiana case today
In Toni Ball v. City of Indianapolis (SD Ind., Barker), a 17-page opinion, Judge Rovner writes:
Plaintiff Toni Ball sued Indianapolis police detective Clifton Jones and various state and municipal defendants after she was arrested in error based on a probable cause affidavit that Jones prepared. The district court dismissed Ball’s claims against the state defendants and granted judgment on the pleadings as to all of the municipal defendants, leaving only her Fourth Amendment claim against Jones. Ball then sought leave to amend her complaint to abandon the remaining federal claim and assert only state-law claims against Jones. The court granted the motion to amend and, at Ball’s request, remanded the case to state court, where it had originated. Ball now appeals the district court’s adverse rulings on her other claims. We affirm. * * *In Che B. Carter v. Keith Butts (SD Ind., Barker), an 11-page opinion, Judge Bauer writes:
Because the allegations of the complaint did not support Ball’s claims for relief, apart from the Fourth Amendment false arrest and imprisonment claim that she later dropped, the district court properly dismissed and granted judgment on the pleadings as to those claims. The parties shall bear their own costs of appeal.
Che B. Carter (“Carter”) appeals the district court’s denial of his petition for a writ of habeas corpus under 28 U.S.C. § 2254. He contends that his appellate counsel rendered ineffective assistance by failing to challenge the attempted murder jury instruction given at his trial and that this unduly prejudiced him. Carter argues that the Indiana Supreme Court unreasonably applied Supreme Court precedent when it determined that he suffered insufficient prejudice to warrant relief. For the reasons that follow, we affirm the district court’s decision to deny Carter’s petition for a writ of habeas corpus. * * *
While Choate’s performance may well have been deficient, we find that the Indiana Supreme Court’s conclusion that Carter failed to satisfy the prejudice prong of the Strickland test was not an unreasonable one.
Ind. Courts - More on: Judicial Qualifications Commission issues advice to judges running for office
The ILB posted this Advisory Opinion #1 of 2014 from the Judicial Qualifications Commission, on June 26th, answering questions from judges and judicial candidates regarding conduct around judicial campaigns – both their own conduct and that of their opponent(s).
On April 25, 2014, Indiana Court Times had this article by Adrienne Meiring, headed "On Your Mark, Get Set…Go? The Ethics of Judicial Campaigns (part 1 of 2)."
A second article, "Speak when you are angry & you will make the best speech you’ll ever regret: The Ethics of Judicial Campaigns: Part 2," also by Ms. Meiring, Counsel for the Commission, dated June 26, 2014, is available here.
Ind. Decisions - Supreme Court decided one, posted late yesterday
Carol Sparks Drake v. Thomas A. Dickey, Craig Anderson, Charles E. Podell, and Duke Realty Corp. is a 2-page per curiam opinion. The Court:
... grants transfer and summarily affirms the Court of Appeals opinion pursuant to Appellate Rule 58(A)(2), with the exception of footnote 2, which is hereby vacated.As the Court explains:
The footnote indicates the appellees failed to denominate as a cross-appeal an argument rejected by the trial court that the appellees contend is an alternative ground for affirming the summary judgment order. * * *Here is the ILB summary of the Dec. 11, 2013 COA opinion. See also this Dec. 31, 2013 ILB post, headed "Lawyer Has Triable Tort Claim Against Client That Allegedly Got Her Kicked Out as Partner."
The Appellate Rules do not require the filing of a cross-appeal where the appellee does not seek reversal of the order or judgment appealed, but instead raises a ground for affirming that appears in the record and was rejected or not considered by the trial court or agency.
Thursday, July 24, 2014
Ind. Decisions - Court of Appeals issues 0 today (and 1 NFP)
Ind. Decisions - Court of Appeals issues 0 today (and 1 NFP)
For publication opinions today (0):
NFP civil opinions today (0):
NFP criminal opinions today (1):
Ind. Decisions - "2nd judge rules against Indiana’s right-to-work law"
Lesley Weidenbener, editor of TheStatehouseFile.com, reports today in the Indianapolis Star:
A Lake County judge has struck down Indiana’s 2012 right-to-work law that made it illegal for companies to compel nonunion members to pay fees for union services. * * *See this ILB post from Sept. 9, 2013, on the Sedia ruling. Here are a number of later ILB posts mentioning the ruling.
Lake Circuit Judge George Paras issued his ruling July 17 and said it would take effect immediately upon its entry into the chronological case summary, which makes it official. * * *
The Indiana Supreme Court has set oral arguments in a separate right-to-work case for Sept. 4.
In that case, Lake Superior Court Judge John Sedia also found the right-to-work law unconstitutional. But Sedia stayed his own ruling during the state’s appeal, which went directly to Indiana’s highest court.
The ILB does not recall another Indiana trial court declaring a state statute unconstitutional (unusual in itself) and then declaring that the opinion was to take effect immediately. One might call this unprecedented (at least until I learn differently). Compounding this, this week's ruling was made by a second judge in Lake County, on what look to be the same grounds as the first Lake Co. judge ruled last year, which earlier ruling is currently pending before the Indiana Supreme Court.
Attorney General Zoeller reportedly will be filing for an immediate stay.
Environment - Still more on: Right to Farm Act prevails in Randolph County lawsuits
Updating the ILB posts from July 16th and 17th on Judge Vorhees' rulings in the Maxwell Farm lawsuits, Seth Slabaugh of the Muncie Star-Press today has a long story headed "Pork powerhouse wins nuisance lawsuits: Delaware County judge throws out suits filed in Randolph County." Some quotes:
WINCHESTER — A trial-court judge has ruled in favor of one of the nation’s largest pork producers in four nuisance lawsuits brought by neighbors of industrial hog farms in Randolph County.The story continues:
The inventory of hogs and pigs in Randolph County more than tripled, from 55,443 to 177,605, between 2007 and 2012, according to the latest Census of Agriculture.
That sparked nuisance lawsuits against Goldsboro, N.C.-based Maxwell Foods, aka Maxwell Farms, which operates Buena Vista Sow Farm; Unionport Nursery Farm; Stone Road Farms; and Gary Foulke’s farm, all of which began production in the 2007-08 time frame.
Maxwell branched out to Indiana after North Carolina enacted a ban on construction of big hog farms because of environmental degradation, says Chris Hurt, an agricultural economist at Purdue University.
In addition, North Carolina's livestock industry uses more corn than is produced in the state. “They said, ‘We have to get our pigs to the corn,” Hurt said. “If North Carolina wanted expansion, they were not going to be able to do it in North Carolina.”
The lawsuits accuse Maxwell and other defendants of allowing hog waste to accumulate and “noxious fumes and odors to discharge from and be sensed beyond the boundaries of their property.”
But Special Judge Marianne Vorhees, of Delaware Circuirt Court 1, ruled the Indiana Right to Farm Act is constitutional. “Plaintiffs’ nuisance action can proceed only if they produce evidence that defendants were negligent, and defendants’ negligence was the cause of the odors,” Vorhees ruled. “Plaintiffs admitted they have no such evidence.”
Indianapolis attorney Rich Hailey, who represents the dozen plaintiffs, told The Star Press, “These are industrialized facilities. They are not family farms. The uncontroverted truth is all the plaintiff were living in those areas first (before the hog operations). Many had owned these properties for generations. These are people who grew up in the country. One day they looked out and had 4,000 to 8,000 hogs putting out 3 million gallons of untreated waste.”National Hog Farmer had this story July 18th headed "Indiana Pork Producers Prevail in Right to Farm Lawsuits."
The Right to Farm Act protects farmers if certain conditions are met, including “no significant change occurred in the type of agricultural operation on the locality.”
Under Indiana law, “changing from crop production to hog production does not constitute a significant change,” Vorhees ruled. She granted Maxwell a pre-trial summary judgment. * * *
“They take a big fan and blow the air out of those buildings,” Hailey said. “If they didn’t blow the noxious gases and odors from the buildings it would be fatal to workers and to the animals. Worse yet, they spread the waste on top of the soil, claiming it is fertilizer. It is fertilizer. So is human waste, but you’re not allowed to spread that on your lawn.”
Hailey said an appeal of the ruling is likely.
Successful Farming magazine ranked Maxwell Foods 11th in its “Top 25 U.S. Pork Powerhouses” in 2013. Maxwell ranked behind powerhouses like first place Smithfield Foods and eighth place Cargill but ahead of powerhouses including Tyson Foods and Hormel Foods.
Ind. Gov't. - Updating "Pence: Indiana won’t comply with prison rape law"
Updating a series of ILB posts on this issue, the most recent one from June 2nd, Indianapolis Star columnist Erika D. Smith has a story today connecting Gov. Pence's decision last month "that Indiana will opt out of the federal Prison Rape Elimination Act, a collection of guidelines designed to reduce sexual abuse behind bars," because the "law is too expensive to implement," with the 7th Circuit's ruling Monday finding a “severely sexualized climate” at the Pendleton state prison.
Ind. Decisions - Elkhart 4 felony-murder convictions to be focus of ABC's Nightline Prime on Saturday
Wednesday, July 23, 2014
Courts - "Federal prosecutors Are Reading Emails From Inmates to Lawyers"
From Stephanie Clifford's story today in the NY Times:
Jailhouse conversations have been many a defendant’s downfall through incriminating words spoken to inmates or visitors, or in phone calls to friends or relatives. Inmates’ calls to or from lawyers, however, are generally exempt from such monitoring. But across the country, federal prosecutors have begun reading prisoners’ emails to lawyers — a practice wholly embraced in Brooklyn, where prosecutors have said they intend to read such emails in almost every case.
The issue has spurred court battles over whether inmates have a right to confidential email communications with their lawyers — a question on which federal judges have been divided. * * *
In Brooklyn and across the country, the issue is being decided case by case. A spokesman for the Bureau of Prisons declined to comment, citing the continuing litigation.
Ind. Decisions - "Businesses have a legitimate interest in the orderly operations of their workplaces, which extends to taking actions to prevent employees from having sex on the premises"
That quote from this Wisconsin Appellate Law Blog commentary on Monday's 7th Circuit decision (Ortho-Bell v. State) relating to state employee conduct at Pendleton state prison. The blog post, by Ryan N. Parsons, is headed "Hoosier Daddy? Rampant Sexual Misconduct in Indiana Prison Shows Pitfalls for Employers."
Ind. Decisions - Court of Appeals issues 2 today (and 12 NFP)
For publication opinions today (2):
In Joseph Laycock v. Joseph Sliwkowski, M.D., a 13-page opinion, Judge Barnes writes:
Laycock raises one issue, which we restate as whether there is designated evidence that Dr. Sliwkowski caused injury or damages to Laycock. * * *In Willie L. Montgomery v. State of Indiana , an 8-page opinion, Judge Baker writes:
[B]ecause there is no claim, let alone evidence, that Laycock had a fifty percent or worse change of recovery from the original injury, we must conclude he has not established that the Mayhue approach applies here. Thus, traditional causation principles apply to his case. Accordingly, Laycock had the burden of producing expert testimony rebutting Dr. Sliwkowski’s evidence that he did not cause Laycock’s injuries. * * *
Because the designated evidence does not establish a genuine issue of material fact on the issue of causation, the trial court properly granted Dr. Sliwkowski’s motion for summary judgment. We affirm.
In this interlocutory appeal, appellant-defendant Willie Montgomery challenges the trial court’s denial of his motion to dismiss the charge of Failure to Register as a Sex or Violent Offender1 in Vanderburgh County. Montgomery argues that the trial court erred in dismissing his motion because he had already been prosecuted for failing to register as a sex offender in Pike County. More particularly, Montgomery contends that prosecuting him for failing to register in both counties is barred under Indiana Code section 35-34-1-4(a)(7) and violates double jeopardy principles. We find that the charge in question is not barred under Indiana Code section 35-34-1-4(a)(7) and does not violate double jeopardy principles. We remand to the trial court for trial.NFP civil opinions today (4):
NFP criminal opinions today (8):
Ind. Courts - "10 states join Indiana’s appeal of federal judge’s same-sex marriage ruling" [Updated]
Tim Evans reports in the Indianapolis Star:
The attorneys general of 10 states have joined in Indiana’s appeal of a federal judge’s ruling that found the state law banning same-sex marriage unconstitutional.Here is the amicus brief, authored by the Attorney General of Colorado, and joined by the other states listed.
In a filing this week, the attorneys general of Alabama, Alaska, Arizona, Colorado, Idaho, Louisiana, Oklahoma, South Carolina, South Dakota and Utah filed a friend of the court brief alleging it is not the judicial branch’s role to determine whether same-sex marriage should be permitted.
ILB: No surprises here! These are many of the same 10 states that have signed on to the numerous amicus briefs authored in Indiana and filed by Attorney General Zoeller on behalf of the citizens of the State of Indiana in same-sex marriage cases throughout the country. See for example, this amicus brief, authored in Indiana and filed by the State of Indiana in the 9th Circuit, in support of the Governor and Attorney General of the State of Nevada. It was joined by ALABAMA, ALASKA, ARIZONA, COLORADO, IDAHO, MONTANA, NEBRASKA, OKLAHOMA, SOUTH CAROLINA AND UTAH.
Notice, however, that these numbers may be falling, this Feb. 26, 2013 ILB post notes:
Indiana is also the lead counsel on an amicus brief in Windsor, joined by 16 other states, arguing in favor of the federal Defense of Marriage Act (DOMA).Among those who joined the Indiana-authored Windsor amicus brief were states such as Wisconsin, Michigan, and Virginia, now, like Indiana, parties in their own same-sex marriage lawsuits.
Ind. Courts - "Man who threatened to bomb courthouse arraigned on federal charge"
Man who threatened to blow up Tippecanoe County Courthouse "arraigned in federal court Monday after a grand jury indicted him on a single charge: willfully making a threat to use fire or explosive materials.." See the IndyStar story by Steven Porter.
And don't miss the July 7th ILB post titled: "Threats v. satire in social media age", which I introduced as "A very long and important story today by Dave Bangert of the Lafayette Journal Courier. The nutshell subhead: 'Did Samuel Bradbury write threats or satire when he threatened judges and cops and vowed to blow up the Tippecanoe County Courthouse? Similar free speech questions headed to Supreme Court.'"
Ind. Courts - "New rules for Clark County Drug Court"
JEFFERSONVILLE — Changes have been made to the Clark County Drug Treatment Court participant handbook that will allow those in the alternative-to-prison initiative to more easily succeed in the program, officials say.
The court held an orientation last week to notify the nearly 40 people who remain in the program of the modifications, which were handed down from the Indiana Judicial Center, or IJC.
Clark County Circuit Court No. 4 Judge Vicki Carmichael was given temporary certification to continue offering drug court in the community after the IJC stripped the program’s certification from Clark County Circuit Court No. 2 Judge Jerry Jacobi earlier this year, following accusations of misconduct by the then-drug court staff.
Carmichael says the most significant changes involve curfew, collection of fees and medically assisted treatments.
Prior to the updates, the program’s participants were subjected to a blanket curfew of 11 p.m., but now the court and case managers have discretion to modify or completely lift a participant’s curfew.
Carmichael said she and others on the drug court staffing team were concerned about participants with employment opportunities or obligations that conflicted with their curfews.
“We didn’t want to have that be a violation,” Carmichael said. “We wanted to address curfew on a case-by-case basis. There can be some incidents where a curfew isn’t necessary for [employment] situations. That was really the impetus behind changing the curfew regulation.”
With fewer curfew restrictions, some participants may now be able to attend required substance abuse meetings scheduled later in the day that would have previously prevented them from meeting curfew.
When the program operated in Clark County Circuit Court No. 2, participants paid out of pocket for each drug test administered, or amassed a significant debt to the court.
Now, a monthly fee of $50 covers all drug-testing fees for each participant.
Under the old structure, a participant was not able to fully anticipate what fees he or she would have to pay each week for drug tests, as the amount of tests a participant may be subject to each week can fluctuate as well as type of tests, which vary in cost. * * *
Finally, the new handbook for the program redefines the regulations regarding prescribed medication, specifically methadone, suboxone and subutex, which are used to treat opiate dependence.
Previously, those who were actively using methadone or other relevant medications could enter the drug court program, but could not progress through the stages, which is required to graduate, if they continued using the substances.
“There is a fine line that the courts have to follow. We can not interfere with medical treatment, and these are medical treatments,” Carmichael said. “That is a person’s right to have medical treatment, so it shouldn’t exclude them from participating in drug court.”
Carmichael hopes the new handbook will be as well received by the participants as has the overall drug court program since it was moved to her court.
“The comments I have heard in court is that they appreciate the structure. They have appreciated the work that the prosecutor and defense attorneys and [the case managers] have put in to make it successful,” she said. “I think, from the drug court-participant standpoint, it is a program now that they believe in.”
Ind. Gov't. - "Squawk over chickens muted for now" in Porter
Paulene Poparad of the Chesterton Tribune reported earlier this month on a council meeting in the adjoining town of Porter:
Porter Town Council member David Wodrich moved to amend the zoning ordinance regulating backyard chickens, but the motion died for lack of a second Tuesday.This list of many other related posts was created via a search for "chickens" in the ILB.
The council took public input on the matter followed by council members Jeannine Virtue, Elka Nelson and Rob Pomeroy expressing concern over relaxing the rules as suggested. President Greg Stinson was absent.
Police chief James Spanier said the current Porter ordinance regulating urban chickens was adopted in 2005 and modeled after Valparaiso’s at that time.
In May, Porter resident Laura Madigan asked that the town allow chickens on smaller residential lots than the current 5-acre minimum. After last night’s meeting she urged supporters of urban chickens to keep coming back.
"I think if more people are concerned about it, it might make a difference if it’s brought up repeatedly,” she said.
Madigan removed her chickens after learning they weren’t allowed on her property because of its size; Tuesday she told the council that chicken owners have no right to conduct an illegal activity, but they do have a right to challenge an unreasonable ordinance.
Also speaking to relax the rules were Eric Joll and Journey Joll; he brought the matter to the council in 2013 but the issue was never revisited.
This time, six residents as well as council members presented opinions on property rights versus municipal zoning, enforcement, fresh eggs for a healthier lifestyle, and whether chickens are pets or farm animals.
Wodrich, a restaurant owner, said he favors two chickens --- no roosters --- with restrictions and registration for a normal lot. He said chicken owners typically are dedicated, although Nelson said history hasn’t always proven that to be the case.
Virtue said it’s an invalid argument that property rights are being denied by not allowing chickens on smaller lots. A town can exercise control over property in a legal manner, she explained, and having chickens is a want, not a right, and no one has the right to conduct illegal activity.
Virtue also noted there is an expense to amending town ordinances and she’s not sure it’s warranted at the request of two families, especially when more people she’s talked to are opposed to or neutral about it than in favor.
Resident Norm Tapper, Madigan’s neighbor, said relaxing the rules regarding chickens would discourage potential buyers of adjacent property resulting in a lower property value; chickens also can carry disease and face being abandoned when they stop laying eggs, according to Tapper.
Madigan said there’s no evidence chickens lower property values, and dogs/cats can be considered nuisances as well, especially if allowed to run. Nevertheless, “You don’t say you can’t have beagles.” Wodrich agreed dogs can present problems for neighbors.
The concerns voiced are appropriate to talk about, said Madigan, but chickens shouldn’t be banned over a theoretical problem with no evidence to back up whether it actually occurs.
Eric Joll said one can get salmonella in a restaurant but they’re not banned. He said the discussion was turning into a pro-chicken and anti-chicken divide when there is a middle ground to be found through good enforcement of sensible regulations.
Resident Milissa Beale said she has 1 acre and her family eats a lot of eggs so she prefers to know where they come from. Chickens also offer the opportunity for 4H interaction. She called for further investigation but said a few chickens on 1 acre isn’t excessive.
Council member Elka Nelson said she did educate herself on the topic, including talking to people who tired of their chickens after a few years. If town rules are relaxed, Nelson predicted it could be an administrative nightmare to enforce new rules like requiring a license to keep chickens with several requirements involved.
Nelson also observed it can be more expensive per-egg when chicken upkeep is factored into the cost than buying organic eggs at the store. “I love grass-fed beef. Can I have a cow in the front yard?” she asked, reminding residents that restrictions as well as rewards come with living in a town.
Virtue asked whether the council wanted to let the current ordinance stand or begin the process of amending it, which would include a future public hearing. Wodrich called for changes, but no one else supported doing so at this time.
Ind. Decisions - 7th Circuit finds a “severely sexualized climate” at the Pendleton state prison.
When a female counselor at Pendleton Correctional Facility complained that some one was using her desk at night, an internal investigation quickly uncovered the truth.
Prison employees working the night shift were having sex on the woman’s desk.
But when the counselor asked the prison’s internal affairs investigator what should be done about the discovery, she was in for yet another surprise.
“I suggest,” the investigator told the counselor, “you wash off your desk every day.”
The exchange is among details in a federal lawsuit filed by the counselor, who, ironically, was fired in 2010 for having sex with a Department of Correction employee on his desk at the prison about 60 miles east of Indianapolis.
In a ruling Monday, a three-judge federal appeals court panel said a district judge in Indiana was wrong to dismiss the discrimination and hostile work environment claims leveled by Connie J. Orton-Bell in connection with her dismissal. The ruling notes a “severely sexualized climate” at the state prison.
The order handed down by the 7th Circuit Court of Appeals panel details the atmosphere inside the prison as “saturated” with sexual comments aimed at female employees and a don’t-ask-don’t-tell attitude toward workers having sex on the job.
Tuesday, July 22, 2014
Ind. Decisions - 7th Circuit decides one Indiana case today, a reversal
In U.S. v. Haitham Mohamed (SD Ind., Barker), a 25-page opinion, Judge St. Eve (Amy J. St. Eve, District Judge for the United States Dis-trict Court, Northern District of Illinois, sitting by designation) writes:
On March 26, 2013, a jury convict-ed Haitham Mohamed of one count of knowingly transport-ing and possessing contraband cigarettes in violation of 18 U.S.C. § 2342(a). Mr. Mohamed appeals his conviction, claiming that the district court erred in denying his motions for judgment of acquittal pursuant to Federal Rule of Criminal Procedure 29. For the reasons set forth in the following opinion, we agree and reverse the district court’s decision. * * *
We do not believe that Mr. Mohamed’s possession of cigarettes in Indiana under these circumstances is sufficient to support a finding, beyond a reasonable doubt, that Mr. Mo-hamed intended to sell, distribute, or otherwise dispose of the cigarettes in Indiana. * * * Without evidence that Mr. Mohamed intended to sell or otherwise dispose of the cigarettes in Indiana, the government failed to prove beyond a reasonable doubt that Indiana law required the cigarettes to bear Indiana tax stamps. Mr. Mohamed’s conviction, therefore, cannot stand.
For the foregoing reasons, we REVERSE the decision of the district court and REMAND with instructions to enter a judgment of acquittal.
This does not mean that Mr. Mohamed’s conduct necessarily must go unpunished. As Mr. Mohamed has acknowledged, the State could have charged him with a misdemeanor for violating Indiana’s requirements for transporting unstamped cigarettes. See Ind. Code § 6-7-1-19.5. The CCTA, moreover, contains recordkeeping and reporting requirements that apply to the shipment, sale, or distribution of more than 10,000 ciga-rettes in a single transaction, see 18 U.S.C. § 2343, and violations of those requirements also may result in criminal liability. See 18 U.S.C. § 2344(b). We make no comment on whether the government’s evidence at trial would have been sufficient to convict Mr. Mohamed under Indiana state law or under other provisions of the CCTA. We hold only that the evi-dence at trial was not sufficient to support a conviction for violation of 18 U.S.C. § 2342(a).
Courts - "Courts Issue Conflicting Rulings on Health Care Law"
Robert Pear just filed this long NY Times story on today's opinions; it begins:
WASHINGTON — Two federal appeals court panels issued conflicting rulings Tuesday on whether the government could subsidize health insurance premiums for people in three dozen states that use the federal insurance exchange. The decisions are the latest in a series of legal challenges to central components of President Obama’s health care law.
The United States Court of Appeals for the Fourth Circuit, in Richmond, upheld the subsidies, saying that a rule issued by the Internal Revenue Service was “a permissible exercise of the agency’s discretion.”
The ruling came within hours of a 2-to-1 ruling by a panel of the United States Court of Appeals for the District of Columbia Circuit, which said that the government could not subsidize insurance for people in states that use the federal exchange.
That decision could cut potentially off financial assistance for more than 4.5 million people who were found eligible for subsidized insurance in the federal exchange, or marketplace.
Ind. Decisions - Court of Appeals issues 6 today (and 3 NFP)
For publication opinions today (6):
In Mark Rolley v. Melissa Rolley, a 21-page opinion, Judge Pyle writes:
Issue. Whether the trial court abused its discretion in granting Mother’s petition to modify child support because the amount of Father’s child support deviated by more than twenty percent from the Child Support Guidelines. * * *In City of Gary v. Review Board of the Indiana Department of Workforce Development and Guadalupe T. Franco, a 17-page opinion, Judge Brown writes:
Because we are not persuaded by Father’s arguments and because the trial court followed the Child Support Guidelines in calculating Father’s modified amount of child support, we conclude that the trial court did not abuse its discretion in its support calculation. Affirmed.
The City of Gary, Indiana (the “City”), appeals a decision by the Review Board of the Indiana Department of Workforce Development (the “Board”) in connection with Guadalupe Franco’s application for unemployment benefits finding that Franco had been discharged but not for just cause and was entitled to unemployment benefits. The City raises two issues, which we consolidate and restate as whether the record supports the Board’s decision. We affirm.In James K. Melton, Perdue Foods, LLC f/k/a Perdue Farms Incorporated and FPP Business Services, Inc., et al. v. Chad Stephens, Guardian of the Person and Estate of Stacy S. Stephens and Chad Stephens, an 18-page opinion, Judge Riley concludes:
[T]he trial court correctly determined that in the case at bar, the place of the tort has extensive connection with the legal action, and thus, the doctrine of lex loci delicti retains its vitality. We hold that the trial court correctly applied the Hubbard test and concluded that Illinois substantive law governs the action.In Tender Loving Care Management, Inc., d/b/a TLC Management LLC, et al. v. Randall Sherls, as Personal Representative of the Estate of Berdie Sherls, Deceased, a 13-page opinion, Judge Mathias writes:
CONCLUSION. Based on the foregoing, we conclude that the trial court properly held that Illinois substantive law is applicable to a collision which occurred in Illinois between two Indiana residents. Affirmed.
Tender Loving Care Management, Inc., d/b/a TLC Management, LLC, d/b/a Lincolnshire Health Care Center, Inc., d/b/a Riverview Hospital and Lincolnshire Health Care Center, Inc. (hereinafter “Lincolnshire”) appeals challenging the trial court’s judgment denying its motion to compel arbitration in a lawsuit filed by Randall Sherls, as personal representative of the Estate of Birdie Sherls (hereinafter “the Estate”). Lincolnshire challenges the trial court’s conclusion that the arbitration agreement was ambiguous because the parties bound by the agreement are not clearly named.In Robert L. Dixon v. State of Indiana, a 17-page, 2-1 opinion, Judge Riley writes:
The Estate cross appeals and argues that the trial court erred when it concluded that the decedent’s son had the authority to waive the decedent’s right to a jury trial. The Estate also contends that the trial court erred when it determined that the agreement was not an unconscionable adhesion contract.
We affirm in part and reverse in part and remand for proceedings consistent with this opinion.
Dixon raises one issue on appeal, which we restate as: Whether Dixon’s patdown search following a traffic infraction violated his rights under the Fourth Amendment of the United States Constitution. * * *In Steven R. Perry v. State of Indiana, a 7-page opinion, Judge Robb writes:
Under the Terry doctrine, a law enforcement officer, for his own protection and safety, may conduct a patdown to find weapons that he reasonably believes or suspects are then in the possession of the person he has stopped. Nothing in Terry can be understood to allow a generalized cursory search for weapons or indeed, any search for anything but weapons. Ybarra v. Illinois, 444 U.S. 85, 93-94 (1979). “The narrow scope of the Terry exception does not permit a frisk for weapons on less than a reasonable belief or suspicion directed at the person to be frisked.” Id. Here, Officer Loudermilk’s actions ostensibly belie the fact that he was concerned for his safety. We reverse the trial court’s decision and remand to the trial court for further proceedings in accordance with this opinion.1
CONCLUSION. Based on the foregoing, we conclude that the trial court abused its discretion when it denied Dixon’s motion to suppress evidence located in violation of Dixon’s Fourth Amendment rights. Reversed and remanded.
ROBB, J. concurs
BRADFORD, J. dissents with separate opinion [which begins, at p. 10] Because I conclude that Officer Loudermilk had sufficient reason to believe that Dixon might have been armed and dangerous during their encounter, I believe that the officer’s pat-down of Dixon was justified by concerns for officer safety. Consequently, I would not suppress the drugs that were subsequently found on Dixon’s person, and I respectfully dissent.
Steven R. Perry appeals the trial court’s denial of his motion for credit time for time spent on electronic monitoring as a drug court program participant. Perry frames the issue as whether Indiana jurisprudence should be modified to adopt a single analysis for awarding credit time for periods of electronic monitoring served regardless of the pretrial or post-conviction status of the defendant. This, rather, is a case of whether the trial court abused its discretion in denying credit time to a person who failed to comply with conditions for participating in a drug court program. Concluding the trial court did not abuse its discretion, we affirm.NFP civil opinions today (1):
NFP criminal opinions today (2):
Ind. Decisions - Supreme Court decides one today, 3-2
In Kenyatta Erkins v. State of Indiana, a 20-page 3-2 opinion, Justice David writes:
Following his conviction for class A felony conspiracy to commit robbery resulting in serious bodily injury, Kenyatta Erkins presents us with a matter of first impression: whether the State must establish the existence of serious bodily injury for his conviction to stand. Without actual serious bodily injury to his alleged victim, he reasons, there is insufficient evidence to support his conviction. However, because conspiracy is a crime consisting of intent to commit an underlying crime, an agreement between or among conspirators to commit the underlying crime, and an overt act by one of the conspirators in furtherance of the agreement, the State needed only to prove these elements beyond a reasonable doubt to support Erkins’s conviction. We find that the State met its burden and affirm Erkins’s conviction.
Erkins also claims that the trial court erred by permitting the State to amend the charging information on the second day of trial to reflect that a co-conspirator, and not he, committed the overt act. However, because the precise identity of the conspirator committing the overt act is not essential to the conspiracy charge, the amendment was one of form and not substance. As the amendment did not impact Erkins’s ability to prepare his defense, we conclude that the trial court did not err in permitting the change. * * *
[I. Amendment to Charging Information] Based on the evidence available to Erkins before the beginning of his trial, it would have come as no surprise to him that the State would attempt to prove that it was in fact Ojile who conducted the surveillance on S.M. inside the Grand Victoria Casino, and the mistaken placement of his name on the charging information would not have affected his ability to prepare his defense. We thus conclude that the State’s amendment was one of form, and that the trial court did not err in permitting it. * * *
[II. Sufficiency of the Evidence] Based on the probative evidence and reasonable inferences supporting the verdict, we conclude that a reasonable fact-finder could find, beyond a reasonable doubt, that Erkins intended and agreed with Ojile to rob and seriously injure S.M. in the course of the robbery, and that Ojile’s surveillance of S.M. at the Grand Victoria Casino and the men’s possession of guns and potential robbery tools at the time of their arrests constituted overt acts in furtherance of their agreement. Thus, sufficient evidence underlies Erkins’s conviction for class A felony conspiracy to commit robbery resulting in serious bodily injury.
Conclusion. While under three different forms of surveillance, Erkins and Ojile expressed their intent and agreement to rob and seriously injure S.M., and the men performed overt acts in furtherance of their agreement. The State therefore presented sufficient evidence at trial to support Erkins’s conviction for class A felony conspiracy to commit robbery resulting in serious bodily injury. And because the particular identity of the conspirator performing the overt act is not essential to the conspiracy charge, the trial court did not err in permitting the State’s amendment of form to Erkins’s charging information. Accordingly, we affirm Erkins’s conviction.
Massa and Rush, J.J., concur.
Rucker, J., concurs in part and dissents in part with separate opinion in which Dickson, C.J., joins.
[J.Rucker's opinion begins, on p 17] The majority declares: “Whether the State must establish the actual existence of serious bodily injury in order to convict a defendant of class A felony conspiracy to commit robbery resulting in serious bodily injury is an issue of first impression before this Court.” Slip op. at 10 - 11. I agree the precise question has not been previously presented to us. However, our existing case authority as well as familiar tenets of statutory construction compels the conclusion that the State must prove the existence of serious bodily injury in order to convict a defendant of class A felony conspiracy to commit robbery. I therefore respectfully dissent from the majority’s contrary view.
Central to this discussion is that serious bodily injury is not an element of the offense of robbery. Instead it is a penalty enhancement that increases the class of the offense from a C to an A felony. “The primary purposes of statutorily enhanced penalties for robbery resulting in bodily injury [or serious bodily injury] include deterring those who would commit robbery from in any way harming their victims, and protecting society from those persons who demonstrate the propensity to harm the victims of their crimes.” Payne v. State, 484 N.E.2d 16, 19 (Ind. 1985). In consequence, for the completed offense of robbery the State is required to prove serious bodily injury in order to enhance the offense to a class A felony. * * *
In this case the State failed to prove that Erkins’ conspiracy to rob the victim resulted in serious bodily injury justifying an enhancement. I would therefore vacate his conviction as a class A felony and remand this cause with instructions to enter judgment as a class C felony and to resentence accordingly. In all other respects I concur in the majority opinion.
Dickson, C.J., joins.
[ILB kudos for footnote 4, wherein the majority clearly delineates the issues not vacated in granting the petition to transfer]  Erkins and Ojile also raised issues relating to the admission of evidence gathered after they left the casino, the admission of testimony interpreting the slang used in their phone conversations, and prosecutorial misconduct during closing arguments. Additionally, Ojile asserted that his counsel provided ineffective assistance by failing to argue the defense of abandonment. The Court of Appeals properly resolved each issue, and we summarily affirm those portions of its opinion pursuant to Ind. Appellate Rule 58(A).
Ind. Decisions - 7th Circuit decided a second case July 21st, a reversal
In Orton-Bell v. State of Indiana (SD Ind., Lawrence), a 21-page opinion, Judge Manion writes:
Connie J. Orton-Bell was employed as a substance abuse counselor at a maximum security prison in Indiana. An investigator, who had been looking for security breaches, discovered that night-shift employees were having sex on Orton-Bell’s desk and informed her. That investigator told her that he was not concerned about night-shift staff having sex but suggested she should probably wash off her desk every morning. When the situation was brought to the superintendent’s attention, he agreed and said that, as long as inmates were not involved, he was not concerned either. Immediately thereafter, the superintendent discovered that Orton-Bell was having an affair with the Major in charge of custody (which, ironically enough, allegedly involved sex on his desk) and both were terminated. Both separately appealed their terminations to the State Employees’ Appeals Commission. The prison settled the Major’s appeal and then called him to testify against Orton-Bell at her appeal. This tactic enabled the Major to keep all of his benefits, including his pension, to quickly get unemployment benefits, and to subsequently begin working at the prison as a contractor. Orton-Bell was not afforded similar benefits and opportunities, so she filed this suit alleging Title VII claims of sex discrimination, retaliation, and hostile work environment. The district court granted summary judgment to the state, concluding that Orton-Bell was not similarly situated to the Major, that she failed to prove retaliation under either the “direct” or “indirect” methods, and that the sexual tenor of the prison’s work environment was not severe or pervasive enough to qualify as hostile. We reverse with regard to Orton-Bell’s discrimination and hostile environment claims, but affirm with regard to her retaliation claims. * * *
Because there is evidence that Orton-Bell was similarly situated to Ditmer, but treated less favorably, it was error to grant summary judgment on her discrimination claim. Further, because her supervisors failed to remedy the severely sexualized climate at the prison, it was likewise error to grant summary judgement on her hostile work environment claim. However, because she has failed to show that her complaint about night-shift employees having sex on her desk was rooted in her protected status, it was not a protected complaint, so her retaliation claim fails. Accordingly, we AFFIRM IN PART and REVERSE IN PART and REMAND for further proceedings consistent with this opinion.
Ind. Gov't. - Two stories re INDOT in lawsuits
"Judge rules Monroe County can’t block I-69 work at night" reported Ryan Sabalow of the Indianapolis Star last evening. Some quotes from the story:
For the time being, Monroe County officials won’t be using a noise ordinance to shut down nighttime construction work on the I-69 project."Suit tests INDOT policy of charging for highway repairs" is the heading of a long July 19th IBJ story by Kathleen McLaughlin that begins:
Marion Superior Court Judge David Dreyer issued a preliminary injunction today that allows the Indiana Department of Transportation to resume work on the controversial freeway project at night — beeping backup alarms and all.
Neighbors, some of whom are longtime opponents of the freeway project, had complained to Monroe County officials that those backup alarms and other construction noises were keeping them up at night. The county changed its noise ordinance in response.
Faced with up to $7,500 fines per violation, INDOT’s contractors shut down nighttime work, saying they couldn’t run their equipment and keep workers safe without the backup signals.
INDOT sued, saying it needed to work at night to finish the $100 million section of the freeway on time. INDOT alleged the ordinance violates Indiana’s Home Rule Act, which prevents a county from imposing burdens on the agency or regulating matters that fall under INDOT’s purview.
A trucking company is challenging the Indiana Department of Transportation’s authority to sue for damage to state property, a lawsuit that could affect thousands of motorists and millions of dollars in revenue.Here is the appellate docket in the case, Averitt Express, Inc. v. State of Indiana, et al..
Tennessee-based Averitt Express Inc. brings its case to the Indiana Court of Appeals as INDOT ramps up its efforts to collect for damage to guardrails and other infrastructure. INDOT’s property-damage billing grew more than 50 percent, to $7.1 million, in the fiscal year ended June 30 and covered 4,354 incidents.
Most of those bills are settled out of court by insurance companies, but Averitt’s case went to Putnam Circuit Court. In a summary-judgment ruling early this year, the trial court judge found in favor of the state, which said Averitt owed $59,969 after a 2011 accident that damaged a guardrail and pavement on Interstate 70 and killed Averitt’s driver, John Goins.
Averitt’s attorney at Indianapolis-based trucking specialist Scopelitis Garvin Light Hanson & Feary argued that INDOT’s long-standing policy of collecting for routine highway repairs is illegal because those repairs are already paid for by tax dollars.
Other courts observe the rule that governments cannot recover the cost of routine functions through civil suits when those costs are already funded through taxation, Scopelitis attorney Michael Langford said in his April 21 appeals brief. “This rule expresses the common-sense principle that taxpayers should not be asked to fund the same government functions twice,” he said.
Monday, July 21, 2014
Ind. Decisions - More on: Appellees’ Response to Appellants’ Petition for Initial Hearing En Banc
Earlier this afternoon the ILB posted a link to and briefly discussed the Wisconsin plaintiffs' response to Wisconsin's motion that the initial hearing of Wisconsin's appeal be conducted before an en banc 7th Circuit, rather than before a 3-judge panel.
Here now is the Indiana plaintiffs' brief response to the Indiana Attorney General's motion for an initial en banc consideration.
Ind. Decisions - Appellees’ Response to Appellants’ Petition for Initial Hearing En Banc
The plaintiffs in the Wisconsin same-sex marriage case, which has been joined with the Indiana appeal before the 7th Circuit, today filed their response to Wisconsin's motion that the initial hearing of Wisconsin's appeal be conducted before an en banc 7th Circuit, rather than before a 3-judge panel. Here is the response, thanks to @EQCF. It is 5-pages and worth reading in full; it may say it all.
Ind. Decisions - 7th Circuit decides one Indiana case today
In US v. Donella Locke (SD Ind., McKinney), a 15-page opinion, Judge Rovner writes:
In her second appeal before this court, Donella Locke asks us to reverse the district court’s judgment on sentencing, claiming that the lower court errantly calculated the amount of loss attributable to her conduct. Because Locke waived this issue, we decline to consider the matter and affirm, and in doing so revisit the factors that distinguish loss and restitution. * * *
Although it is true that the application notes to U.S.S.G. 2B1.1 instruct that loss amounts also should be offset by the collateral, the issue of loss had been waived. Had it not been waived, the district court could have considered the evidence about sale of the homes to determine the amount of offset of the collateral, but then the relevant conduct of the unconvicted counts would also have been fair game. Locke cannot argue that the court should have considered evidence to lower the amount of loss, but not to consider conduct that surely would have increased the amount of loss. That smacks of wanting to have one’s cake and eat it too.
Ind. Decisions - Transfer list for week ending July 18, 2014
There were no transfer dispositions last week, and hence, there is no transfer list.
Ind. Decisions - Supreme Court decides one today
In Camoplast Crocker, LLC, The Kelch Corporation, and Seats, Inc. v. Kris Schoolcraft, as Personal Representative of the Wrongful Death Estate of Rickie D. Schoolcraft, Deceased, et al., a 2-page, 5-0 per curiam opinion, the Court writes in full:
The plaintiff sued the original defendant, Magic Circle Corporation d/b/a Dixie Chopper, for wrongful death. Later, on the last day before the applicable two-year limitation period expired, the plaintiff moved to amend the complaint to add new defendants and tendered an amended complaint and summonses for the new defendants. Eleven days later, the trial court granted the plaintiff’s motion to amend. The new defendants then moved to dismiss or for judgment on the pleadings and argued the amendment was too late, outside the limitation period. The trial court denied the new defendants’ motions and certified its ruling for discretionary interlocutory appeal.
The Court of Appeals affirmed in an opinion authored by Judge May and reported as Magic Circle Corp. v. Schoolcraft, 4 N.E.3d 768 (Ind. Ct. App. 2014)[see ILB summary here, 1st case]. The Court of Appeals held the amendment was timely, deciding not to follow A.J.’s Automotive Sales, Inc. v. Freet, 725 N.E.2d 955, 964-66 (Ind. Ct. App. 2000), reh’g denied, trans. denied, which reached a different result under similar facts.
We agree with Judge May’s analysis and the result reached by the Court of Appeals in the present appeal. Accordingly, we grant transfer, expressly adopt and incorporate by reference pursuant to Indiana Appellate Rule 58(A)(1) the Court of Appeals opinion in this case, and affirm the trial court.
Ind. Law - More on "Changes to expungement process poses danger to public"
That was the headline to a story in the May 11th Martinsville Reporter Times; unfortunately it was and remains behind a paywall.
Now it seems that the prosecutor in the adjoining Monroe County shares the concerns. A story headed "Law intended to provide a fresh start draws mixed reviews" appeared in the Sunday, July 13th Bloomington Herald-Times, unfortunately also behind a paywall. From the teaser:
Many people say the trend toward expungement is a good idea, an opportunity for people charged with or convicted of breaking the law to have their criminal slates wiped clean if they stay out of trouble and proceed with their lives in a law-abiding manner.Yesterday, Newsbug.com has an AP version of the Herald-Times story. Some quotes:
Others say the process can demean the criminal justice system by effectively making a person’s bad acts disappear. Asked on a job application about any felony convictions, someone with a successful expungement can respond “no.”
"There is good, and bad, where this law is concerned," Monroe County Chief Deputy Prosecutor Bob Miller told The Herald-Times (http://bit.ly/WfjFPf ). "On the one hand, it provides a sort of amnesty for people who made a mistake when they were younger that has haunted them since in terms of education and employment. That part is a good thing."
But victims can think it's unfair for an offender to clear his record, Miller said.
That's happened in Morgan County, where Prosecutor Steve Sonnega has challenged expungement petitions he doesn't think should be granted.
Sonnega said the positive aspects of the law are often outweighed by the loss of the victim's rights.
He cited one case in which a man charged with sexual battery had a trial where 11 jurors voted to convict and one stood firm on her not-guilty vote. The victim, a child at the time of the crime, didn't want to testify a second time, so the charge was reduced to battery and the man pleaded guilty.
During the perpetrator's expungement hearing earlier this year, the victim testified that she still is haunted by what happened.
"She testified, very powerfully, that she had to live with the consequences of his actions every day and that she believed he should, too — a logical argument from a crime victim," Sonnega said. * * *
Morgan Superior Court Judge G. Thomas Gray, a former prosecutor, said he dislikes the expungement process and objects to a provision that says victims can address the court, but the judge cannot consider their testimony if the expungement fits the statute.
He also objects to a requirement that expungement petitions and hearings be kept confidential.
"It's an oxymoron. You can't allow anyone in the courtroom to hear what they say, and it can't be considered anyway," he said.
Courts - " In U.S. gay marriage cases, children emerge in the limelight"
That is the headline to a lengthy Reuters story this weekend by Joan Biskupic. A few quotes:
(Reuters) - With legal battles over gay marriage simmering across the United States, proponents are showcasing a group they had once sidelined: children.
Lawyers are recruiting same-sex couples who have children, putting interviews with kids as young as seven in court filings, and organizing media events featuring teenagers. * * *
The lawyers’ approach marks a strategic shift from several years ago, when proponents of gay marriage kept the focus away from children, if there were any.
Advocates were wary of provoking negative responses from judges and the public at a time when prevailing opinion was more likely to view children as harmed by gay marriage.
As recently as 2006, when New York and Washington state high courts upheld bans on same-sex marriage, they sided with states that said having gay parents could hurt youngsters. The New York court said, "a child benefits from having before his or her eyes, every day, living models of what both a man and woman are like."
But in the milestone case of U.S. v. Windsor last year, in which the Supreme Court extended federal spousal benefits to same-sex couples, Justice Anthony Kennedy - a moderate conservative appointed by President Ronald Reagan - turned that around. In the majority opinion he wrote that the federal law that denied benefits to same-sex couples “humiliates” tens of thousands of their children.
In a separate dispute, involving California's former ban on gay marriage known as Proposition 8, Kennedy said during oral arguments that the 40,000 children in California who live with same-sex parents "want their parents to have full recognition and full status.”
Ind. Decisions - Court of Appeals issues 2 today (and 5 NFP)
For publication opinions today (2):
In Hi-Tec Properties, LLC v. Brittany Murphy, Kendall Murphy, Lorie Murphy, and Jay Frazier, a 17-page opinion, Judge Crone writes:
Hi-Tec Properties, LLC (“Hi-Tec”), appeals the trial court’s denial of its motion to correct error following a jury verdict and award of compensatory and punitive damages entered in favor of Brittany Murphy, Kendall Murphy, Lorie Murphy, and Jay Frazier (collectively “Plaintiffs”) on their claims for negligence, breach of contract, and fraud against Hi-Tec. Hi-Tec filed a motion to correct error claiming, in essence, that the jury verdict and resulting award of damages was improper and unsupported by the evidence. The trial court denied the motion, and Hi-Tec appealed. Finding a portion of the compensatory damages award to be unsupported by the evidence, we reverse that portion of the award and remand to the trial court with instructions for revision. We affirm the trial court in all other respects.In James Giles, Individually and as Executor of the Estate of Ruth Giles, deceased v. Anonymous Physician I, Anonymous Corporation I, Anonymous Hospital I, Anonymous Physician II, et al., a 14-page opinion, Judge Pyle writes:
This appeal involves a preliminary determination in a medical malpractice case filed in the county court while the case was pending before the Indiana Department of Insurance (“IDOI”). Anonymous Physician I (“Hospitalist”) and Anonymous Corporation I (“Medical Corporation”)—after being sued by James Giles (“Giles”), individually and as executor of the estate of Ruth Giles, deceased (“Ruth”)—moved for summary judgment on the basis that Hospitalist owed no duty to Ruth because he did not treat her or have a physician-patient relationship with her. Giles now appeals the trial court’s order granting summary judgment to Hospitalist and Medical Corporation. We affirm.NFP civil opinions today (2):
NFP criminal opinions today (3):
Law - "Ag-gag laws facing federal court challenges nationally"
From the IBJ/AP, this long July 20th story that begins:
The years-long fight between farm organizations and animal rights activists over laws prohibiting secretly filmed documentation of animal abuse is moving from state legislatures to federal courts as laws in Utah and Idaho face constitutional challenges.
Half of U.S. states have attempted to pass so-called ag-gag laws, but only seven including Indiana have been successful.
Indiana's proposed ag-gag law was scaled back considerably before receiving Gov. Mike Pence’s signature earlier this year. It makes trespassing on the production area of a farm a criminal offense and causing property damage to a farm an act of criminal mischief.
Among the other states with ag-gag statutes are Idaho, where the law says unauthorized recording is punishable by up to a year in jail and a $5,000 fine, and Utah, whose 2012 law makes it a crime to provide false information to gain access to a farm.
Both states now face separate but similarly worded lawsuits that say the measures violate federal statutes offering whistleblower protections and free-speech guarantees.
Ind. Gov't. - Intent of the drafters of the current constitutional provision re the Superintendent of Public Instruction
The ILB has seen several references recently to this ILB post from Dec. 5, 2012, discussing the thinking behind the change to Art. 8, Sec. 8 of the Indiana Constitution, ratified by the voters in 1972.
From 1851 to 1972, the provision provided that the General Assembly should "provide for the election" of the State Superintendent of Public instruction.
The new language, ratified in Nov., 1972, provides that the Superintendent's "method of selection, tenure, duties and compensation shall be prescribed by law."
The 2012 ILB post then goes on to quote at length from the report of the drafters of the constitutional change, the 1969 Constitutional Revision Commission, including:
Effect of the Proposed AmendmentSee the 2012 post itself for more.
The effect of the Commission's proposed amendment to Article 8, section 8, would be to grant to the General Assembly the authority, should it choose to exercise it, to change the term of office and/or the method of selection of the Superintendent of Public Instruction.
Should the General Assembly choose to exercise the authority to change the length of the term of office of the Superintendent, it is most likely that the term would be lengthened to four years. Such a lengthening of term seems most advisable to the members of the Commission.
Should the General Assembly choose to change the method of selection of the Superintendent of Public Instruction, it seems likely that the change would be from state-wide election to appointment, either by an elected state board of education created by the General Assembly, or by the Governor. Such a change would serve to insure that the head of our State's educational system would be a person qualified in the areas of education and administration.
Ind. Decisions - Upcoming oral arguments this week and next
This week's oral arguments before the Supreme Court (week of 7/21/14):
- No oral arguments currently scheduled.
Next week's oral arguments before the Supreme Court (week of 7/28/14):
- No oral arguments currently scheduled.
Webcasts of Supreme Court oral arguments are available here.
This week's oral arguments before the Court of Appeals (week of 7/14/14):
- No oral arguments currently scheduled.
Next week's oral arguments before the Court of Appeals (week of 7/28/14):
- 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.
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.
Sunday, July 20, 2014
Ind. Decisions - Indiana's Anticipatory Motion for Stay of Judgment Pending Appeal in pending same-sex marriage lawsuit
Of the five same-sex marriage cases filed in Indiana federal court in March, one, Bowling v. Pence, has not yet been decided by Judge Young.* Here is the complaint in that case, which seeks recognition of same-sex marriage performed in other jurisdictions. Last Monday, July 14th, the Indiana Attorney General filed this "Anticipatory Motion for Stay of Judgment Pending Appeal." (h/t Equality Case Files), that begins:
In anticipation of final judgment against one or more of them, and pursuant to Federal Rule of Civil Procedure 62(c), Defendants Michael Pence, Greg Zoeller, Michael Alley, and Anita Samuel respectfully move this Court to stay the enforcement of all judgments, injunctions, and declaratory or other relief contemporaneously with the issuance of this Court’s final judgment, pending appeal to the United States Court of Appeals for the Seventh Circuit. A stay in this case is warranted because on June 27, 2014, the Seventh Circuit stayed this Court’s final judgment, including all injunctive and declaratory relief granted by this Court, in the related cases Baskin v. Bogan , No. 1:14-cv-355-RLY-TAB, Fujii v. Governor , No. 1:14-cv-404-RLY-TAB, and Lee v. Pence , No. 1:14-cv-406-RLY-MJD. See Baskin, et al. v. Bogan, et al. , Nos. 14-2386, 14-2387, 14-2388 (7th Cir. June 27, 2014) (order granting stay of all relief and ceasing recognition of all same-sex marriages in Indiana pending appeal)._____
* In Love v. Pence, Judge Young dismissed the suit on June 25th (the same day that he ruled in the three others), on the basis that Gov. Pence was not the appropriate defendant.
Friday, July 18, 2014
Environment - Comment period for EPA/Army Corps proposed rules to define ‘‘waters of the United States’’ ends Monday, July 21
Here is the 88-page proposal, which has this summary:
The Environmental Protection Agency (EPA) and the U.S. Army Corps of Engineers (Corps) are publishing for public comment a proposed rule defining the scope of waters protected under the Clean Water Act (CWA), in light of the U.S. Supreme Court cases in U.S. v. Riverside Bayview, Rapanos v. United States, and Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers (SWANCC). This proposal would enhance protection for the nation’s public health and aquatic resources, and increase CWA program predictability and consistency by increasing clarity as to the scope of "waters of the United States" protected under the Act.Governing has a July 18th article on the proposal by Daniel C. Vock, headed " Local Governments Divided over New Clean Water Rules: After court rulings muddied up the law, new federal rules seek to clarify which bodies of water have to abide by the Clean Water Act."
Ind. Decisions - Court of Appeals issues 0 today (and 7 NFP)
For publication opinions today (0):
NFP civil opinions today (4):
In In re: The Visitation of A.W., J.W. v. State of Indiana (NFP), a 6-page opinion, Judge Bailey writes:
J.W. (“Mother”) purportedly appeals the denial of her motion to correct error, which challenged an order granting Mother’s father (“Grandfather”) grandparent visitation with Mother’s child, A.W. (“Child”). The Attorney General of Indiana intervened to defend the constitutionality of the Grandparent Visitation Act, Indiana Code section 31-17-5-1, et seq. (“the Act”). We dismiss.NFP criminal opinions today (3):
Mother contends that the Act violates the Equal Protection Clause of the United States Constitution and that the trial court erroneously entered a visitation order without requisite findings of fact. We address a single, dispositive issue raised by the State on cross-appeal: whether Mother’s appeal is untimely.
Ind. Decisions - Tax Court discovery orders discussed
Faegre Baker Daniels attorney Brent Auberry had an interesting post July 15th headed "The Gambler Breaks Even: Tax Court Orders Indiana Department Of Revenue To Answer Discovery Requests But Denies Taxpayer’s Second Motion To Compel In Income Tax Appeal," opening with: "The Tax Court does not often address discovery issues in published decisions and orders."
Ind. Law - In Indy, " Confusing laws vex Indiana drivers, cyclists"
Brian Easton had this story July 15th in the Indianapolis Star. A few quotes:
State law generally puts the burden on motorists to "exercise due caution" to avoid vulnerable road users. But it can be confusing for motorists what a cyclist is planning to do — and Worland said "rogue cyclists" who break the rules of the road make it that much more difficult for the two sides to get along.ILB: My biggest issue is cyclists who don't stop at red lights. One specific problem I've experienced twice when making a right turn on red, after carefully checking traffic and with my right turn signal on, has been having a cyclist appear out of nowhere from behind me, on the sidewalk to my right, and zoom through the red light just as I have been half-way through the right turn.
"That means stop at stop signs, stop at red lights ... there are a lot of cyclists that don't do that," Worland said. "It gives cyclists who are serious about it a bad rap."
Law - In Chicago, "Red light cameras tag thousands for undeserved tickets"
David Kidwell and Alex Richards of the Chicago Tribune have a very long story today that begins:
Thousands of Chicago drivers have been tagged with $100 red light fines they did not deserve, targeted by robotic cameras during a series of sudden spikes in tickets that city officials say they cannot explain, a Tribune investigation has found.
The Tribune's analysis of more than 4 million tickets issued since 2007 and a deeper probe of individual cases revealed clear evidence that the deviations in Chicago's network of 380 cameras were caused by faulty equipment, human tinkering or both.
Chicago transportation officials say they had no knowledge of the wild swings in ticketing until they were told by the Tribune — even though City Hall legally required the camera vendor to watch for the slightest anomaly in ticketing patterns every day. Many of the spikes lasted weeks.
The lack of oversight raises new questions about the controversial traffic enforcement program, the largest in the country, now embroiled in a federal corruption probe into allegations that the city's longtime red light camera manager took bribes from the camera company.
"Something is terribly amiss here," said Joseph Schofer, an associate dean at Northwestern University's McCormick School of Engineering and Applied Science who reviewed the Tribune's research.
Environment - "DC Circuit upholds Obama's crackdown on mountaintop mining"
Last Friday Jeremy P. Jacobs and Manuel Quiñones reported for E&E in a long story beginning:
A federal appeals court today sided with U.S. EPA in a broad challenge from two states and the mining industry to controversial Obama administration policies aimed at addressing the environmental effects on waterways of mountaintop-removal coal mining.The story links to the opinion in Nat'l. Mining Ass'n. v. Gina McCarty.
The ruling from the U.S. Court of Appeals for the District of Columbia Circuit is a major win for the administration and reverses a lower court ruling siding with West Virginia, Kentucky and a host of mining interests.
Ind. Decisions - Supreme Court Clears a Possible Minefield for Real Estate Sellers
Yesterday's Supreme Court opinion in Gayle Fischer v. Michael and Noel Heymann (ILB summary here) is the subject of a long post today by Michael Smith in the Indiana Business Law Blog, headed "Anticipatory Breach and Mitigation of Damages revisited: The Indiana Supreme Court Clears the Minefield." A sample:
When one party breaches a contract, the other party is entitled to damages sufficient to put the non-breaching party in the same position it would have occupied had the contract been performed. However, the non-breaching party must use reasonable efforts to mitigate the damages. This case illustrates the concept nicely. The original purchase price was $315,000. Sometime later, Fisher received, but rejected, an offer of $240,000. Ultimately, she sold it for $180,000. The trial court found (and the Supreme Court affirmed) that Fisher acted unreasonably when she rejected the offer of $240,000. Accordingly, the most she could recover was the difference between $315,000 and $240,000, not the difference between $315,000 and $180,000. The question, however, is whether the doctrine of mitigation of damages required Fisher to comply with the Heymans' demand to have the electrical problem fixed. If so, she would be able to recover only $117, the amount it cost her to fix the electrical problems. Last year, the Court of Appeals said yes.
Today, Supreme Court said no, agreeing with Judge Cale Bradford of the Court of Appeals. In his dissenting opinion, Judge Bradford reasoned that the doctrine of mitigation of damages does not require the non-breaching party to accede to a demand that creates a breach. The Supreme Court agreed with that reasoning and elaborated that, just as a non-breaching party may not put itself in a better position than it would have been had the contract been performed as agreed, neither can the breaching party. Here, the buyers agreed to pay $315,000 for a condo that had minor electrical problems (if tripped ground fault interrupters and burnt out light bulbs can be considered "problems"), and the seller was not obligated to sell them a condo with no electrical problems for the same price. Result: The Heymans owed Fisher not $117, but more than $90,000.
Environment - "Rogers Group gains permit for proposed Americus quarry"
WLFI's Dan Klein reported July 16th:
AMERICUS, Ind. (WLFI) — The Rogers Group, which hopes to build a quarry near Americus, clears one more step in the approval process from the state.Here are earlier ILB posts on the Americus quarry.
The Indiana Department of Environmental Management has issued a permit allowing wastewater associated with the quarrying operation to go into the Wabash River as well as an unnamed tributary nearby. The permit expires in 2019.