Tuesday, June 30, 2015
Ind. Decisions - Court of Appeals issues 6 opinion(s) today (and 29 NFP memorandum decisions)
For publication opinions today (6):
In Wilmington Savings Fund Society, FSB, Not In Its Individual Capacity But Solely as Trustee for the Primestar-H Fund I Trust v. Ty Bowling and Asset Acceptance, LLC, a 9-page opinion, Sr. Judge Garrard writes:
Ty Bowling executed a promissory note and secured the note by executing a mortgage on property located in Madison, Indiana. He later defaulted on the note. A complaint was filed naming Bowling and a judgment lien holder, Asset Acceptance, LLC, as defendants to the action. Wilmington Savings Fund Society, FSB, not in its individual capacity but solely as Trustee for the Prime Star-H Fund I Trust, brings this interlocutory appeal from the trial court’s order granting partial summary judgment in favor of Wilmington on the issue of enforcement of the note but finding genuine issues of material fact existed precluding entry of summary judgment on the mortgage foreclosure. We affirm. * * *In Tikidanke Bah v. Mac's Convenience Stores, LLC d/b/a Circle K and David Ruffin , a 25-page, 2-1 opinion, Judge Crone writes:
The trial court did not err by denying summary judgment on foreclosure of the mortgage and granting it on the note.
Tikidanke Bah was a store manager for Mac’s Convenience Stores, LLC d/b/a Circle K (“Circle K”). Bah’s supervisor, David Ruffin, suspected that she had stolen money from the store, which she denied. Ruffin terminated Bah’s employment and contacted the police. The prosecutor charged Bah with theft. After a trial, the jury found her not guilty.In Lawrence J. Anderson v. State of Indiana , a 7-page opinion, Chief Judge Vaidik writes:
Bah filed a complaint against Circle K and Ruffin (collectively “Appellees”) asserting eight counts: false imprisonment, two counts of defamation, malicious prosecution, negligent supervision, vicarious liability, intentional infliction of emotional distress, and negligent infliction of emotional distress. Appellees filed a motion for summary judgment as to all eight counts as well as a motion to strike certain evidence designated by Bah. * * *
We affirm the trial court’s grant of summary judgment in Appellees’ favor on Bah’s claims for negligent supervision, negligent infliction of emotional distress, and malicious prosecution. As to the remaining claims, we reverse and remand for further proceedings.
Pyle, J., concurs.
Brown, J., dissents with opinion. [which begins, at p. 23] I concur with the majority as to its conclusions in Sections 1, 2.1, and 2.2, but respectfully dissent from its conclusion that the Appellees are not entitled to summary judgment on Bah’s remaining claims based on the qualified privilege defense.
The Indiana Supreme Court has held that walking through an open door does not satisfy the “breaking” element of burglary—but opening an unlocked door does. In this case, the defendant “rushed” a victim to gain unauthorized entry into a dwelling when the door was voluntarily opened for another person whom the victim was expecting. We find that “rushing” someone to gain unauthorized entry is sufficient evidence of force used. Thus, we affirm the defendant’s conviction for Class A felony burglary.In Scott Grundy v. State of Indiana , a 19-page opinion, Judge Najam writes:
Scott Grundy appeals his conviction for Aggravated Battery, a Class B felony, and his habitual offender adjudication. Grundy presents three issues for our review, which we revise and restate as:In Saundra S. Wahl v. State of Indiana, a 30-page, 2-1 opinion involving a daycare facility, Judge Riley concludes:
1. Whether the State presented sufficient evidence to support his conviction.
2. Whether his sentence is inappropriate in light of the nature of the offense and his character.
3. Whether the trial court erred when it enhanced his sentence under the prior version of the habitual offender statute.
We affirm Grundy’s conviction and his sentence, and we hold that the July 1, 2014, revisions to the habitual offender statute, Indiana Code Section 35-50-2-8, do not apply retroactively to offenses committed prior to the effective date of our new criminal code.
Based on the foregoing, we conclude that (1) there was sufficient evidence to support Wahl’s conviction for involuntary manslaughter; (2) the trial court did not abuse its discretion in denying Wahl’s motion to correct error based on jury misconduct; (3) Wahl’s sentence is appropriate; and (4) the trial court did not abuse its discretion in ordering restitution. Affirmed.
Barnes, J. concurs
Bailey, J. dissents with separate opinion [which begins, at p. 26] I respectfully dissent, because cumulative error denied Wahl a fair trial. I am convinced that the alternate juror crossed a line in his persistent efforts to influence the duly-selected jurors. Even more egregious, Wahl’s Involuntary Manslaughter conviction was achieved by merging regulatory concepts into the definition of recklessness as set forth by our Legislature in the Criminal Code. Administrative code provisions, State’s Exhibit 65, were submitted as “evidence.” The practical effect, however, was that the provisions were used to supplement the trial court’s instruction on the law and the jury was, in essence, invited to impose a form of strict criminal liability for a child care provider’s non-compliance with provisions of an administrative code. In light of the very tragic events, the jury complied.
NFP civil decisions today (4):
NFP criminal decisions today (25):
Ind. Courts - More on "Former Richmond attorney arrested on 26 counts of theft"
Charles R. Hyde Jr., through his attorney, Austin Shadle, filed the motion to dismiss Monday in Wayne County Superior Court I. Judge Marianne L. Vorhees of Delaware County Circuit Court, who was appointed as a special judge in the case, will decide the motion.
Hyde has been charged with 26 counts of Class D felony theft and one Class C felony count of corrupt business influence.
Charges originally were announced on the Wayne County Prosecutor’s Office’s Facebook page on June 21, 2013. According to that post, “Mr. Hyde is accused of taking money from 14 clients who were seeking to file bankruptcy and failing to render legal services.”
Hyde resigned on May 25, 2012, from the practice of law with the Indiana bar through a filing to the Indiana Supreme Court. He is not permitted to petition for reinstatement in Indiana until five years after his resignation. * * *
The motion to dismiss lists several reasons for the court to throw out the 27 counts, including that the alleged offenses do not constitute theft, that the allegations fail to show Hyde had fraudulent intent, that he referred clients to another attorney to complete their bankruptcies, that some charges would amount to double jeopardy and that the statute of limitations had expired before some charges were filed.
The motion claims the state cannot prove theft occurred because the legal fees paid to Hyde became his property. The motion also says the charges against Hyde do not allege what portion of the fees should have been refunded to the clients, and would therefore have been stolen, because investigators did not determine how much legal work Hyde and his staff performed for each client.
Charges also do not sufficiently demonstrate Hyde knew when accepting the payments that he would not complete the performance of legal services, which he failed to do when he resigned his law license and his practice became defunct, according to the motion.
Monday, June 29, 2015
Ind. Decisions - 7th Circuit decides one Indiana case today
In Richard Bell v. Cameron Taylor (SD Ind., Pratt), an 8-page opinion, Judge Flaum writes:
Richard Bell sued various defendants for copyright infringement, accusing each of impermissibly displaying a photo that he owns on websites promoting their respective businesses. Bell’s complaint sought both damages and an injunction prohibit-ing future use of the photo. The defendants moved for summary judgment on the damages issue, arguing that Bell cannot demonstrate how they caused him financial harm and, thus, that he is not entitled to monetary recov-ery. The district court granted the motion, and Bell ap-pealed. In addition to the summary judgment ruling, Bell contests the district court’s denial of two motions to com-pel and a motion seeking leave to file a fourth amended complaint.Here are some links to earlier stories about this issue.
We have no jurisdiction to decide these issues. Alt-hough the court purported to issue a “final judgment” after ruling on the defendants’ summary judgment mo-tion, it did so in error; the issue of injunctive relief was never adjudicated. Because Bell’s copyright claim was not entirely disposed of by the district court’s summary judgment ruling, the judgment—by definition—was not final. Accordingly, an appeal in this case is premature until the district court resolves Bell’s outstanding claims for injunctive relief.
Richard Bell, a lawyer and photographer, alleges that three small Indianapolis business owners (and the small businesses of two of those three defendants), violated federal copyright laws (and an Indiana theft statute) by publishing on the internet a photo that he took of the Indianapolis skyline without his authorization. * * *
For the foregoing reasons, we DISMISS this appeal for lack of jurisdiction and REMAND to the district court for resolution of the outstanding issues identified in this opinion.
Ind. Decisions - Supreme Court posts a 3rd opinion today
In Jeffrey M. Miller and Cynthia S. Miller v. Kristine C. Danz, a 6-page, 5-0 opinion, Justice Dickson writes:
This appeal challenges summary judgment in favor of a named defendant substituted in an amended complaint for a previously unknown "John Doe" defendant after expiration of the applicable statute of limitations. We affirm. * * *
Danz moved for summary judgment on grounds that Miller's attempt to add her as a named party was barred by the two-year statute of limitations and, further, that Miller's claims for defamation failed on the merits. After a hearing at which the parties primarily argued the statute of limitations issue, the trial court granted Danz's motion for summary judgment and di-rected that final judgment be entered. The trial court did not issue findings of fact or conclusions of law. The Court of Appeals affirmed. Miller v. Danz, 27 N.E.3d 774 (Ind. Ct. App. 2015). * * *
Finding that the existence and identity of Kristine C. Danz was not unknown to the plain-tiff before he commenced this action, yet he waited until after expiration of the applicable statute of limitations to substitute her name for John Doe #8, we affirm summary judgment in Danz's favor.
Ind. Decisions - Supreme Court posts 2nd opinion today
In Celebration Worship Center, Inc. v. Patrick Tucker and Carolyn P. Tucker, A/K/A Patty Tucker, a 10-page, 5-0 opinion, Justice Dickson writes:
This appeal challenges summary judgment for claimants establishing title to and use of real property by adverse possession and by prescriptive easement. Finding no genuine issue of material fact, we affirm the trial court.
Ind. Gov't. - "Governor Pence Announces Tax Amnesty to Be Conducted in Fall 2015"
Gov. Pence has announced implementation of the tax amnesty program established by the 2015 General Assembly:
Governor Mike Pence today announced that the Indiana Department of Revenue will conduct Tax Amnesty 2015 from September 15 through November 16, 2015. Of the outstanding taxes collected, the first $84 million will fund the Indiana Regional Cities Development Fund.Here is the new IDOR homepage for the amnesty program.
“To continue to attract new investment and talent across our state, we must grow locally and think regionally,” said Governor Pence. “The 2015 Tax Amnesty program plays a critical role in helping to jumpstart the Regional Cities Initiative, encouraging collaboration among Hoosier communities to develop ways to bolster investment, attract talent, and continue Indiana on a pathway to economic growth and success.”
Tax amnesty is a limited-time opportunity for both individuals and businesses to pay past-due base tax liabilities free of penalty, interest, and collection fees. Existing tax liabilities, for all tax types managed by the department, for periods ending prior to Jan. 1, 2013, are eligible to participate in Tax Amnesty 2015. Approximately 40 different tax types are eligible for participation.
In return for the full payment of the base tax, the state will:Waive penalties, interest, and collection fees for eligible liabilities;Indiana’s first tax amnesty program was conducted in 2005, during which the state collected $244 million in taxes. Taxpayers who participated in the 2005 amnesty program are not eligible to participate in Tax Amnesty 2015.
Release tax liens that have been imposed on existing liabilities; and
Not seek civil or criminal prosecution against any individual or entity.
For background, start with this ILB post from May 6th.
Ind. Courts - Expungement changes at the appellate court level [Updated]
In a COA opinion Friday (which the ILB and other users still can't pull quotes from ... UPDATE at 5:00 PM, this issue seems now to have been remedied) the plaintiff appealed the denial of her petition to expunge the records of a 2007 summons for a charge of class C misdemeanor illegal consumption of an alcoholic beverage. The trial court denied the petition because she had been summonsed rather than arrested. In a 4-page opinion the COA found that plaintiff was entitled to relief, and reversed and remanded with directions to expunge the relevant records.
Here is the irony. In the future, anyone searching for the plaintiff's name in this case will be likely to pull up the COA ruling. A reader has asked:
Why wouldn't the lawyer filing the case at least attempt to do it with initials? A COA opinion posted to the Internet defeats the whole purpose of expungement.As of July 1, 2015, this may no longer be an issue. HEA 1302, at p. 3, appears to deal with the responsibility of the appellate courts when an arrest or charge did not result in a conviction. For instance, IC 35-38-9-1(f)(4) will read:
(4) with respect to the records of a person who is named as anReader #2 writes:
appellant or an appellee in an opinion or memorandum
decision by the supreme court or the court of appeals, the
(A) redact the opinion or memorandum decision as it
appears on the computer gateway administered by the
office of technology so that it does not include the
petitioner's name (in the same manner that opinions
involving juveniles are redacted); and
(B) provide a redacted copy of the opinion to any publisher
or organization to whom the opinion or memorandum
decision is provided after the date of the order of
The supreme court and the court of appeals are not required
to redact, destroy, or otherwise dispose of any existing copy of
an opinion or memorandum decision that includes the
Indiana Admin Rule 9 is the answer. Unless the lawyer sought permission first, we aren't allowed to redact/exclude from public access without authority to do so. Hence the need for the new law.Rader #1 writes:
I think a lawyer could file a "motion for leave to caption case with initials," citing Appellate Rule 1 and the statue, when filing the case. I think almost any COA motions panel would allow it. Also, the Supreme Court could amend the appellate rules to require all expungement cases be captioned with initials.
Ind. Decisions - Court of Appeals issues 1 opinion(s) today (and 6 NFP memorandum decisions)
For publication opinions today (1):
In In the Matter of the Supervised Estate of Ralph E. Herin, Beth M. Herin and Belinda Herin McIntyre v. Stephen E. Herin, an 11-page opinion, Sr. Judge Shepard writes:
The daughters of the late Ralph E. Herin contend that various certificates of deposit held by a bank as joint property of Mr. Herin and his son should belong in the Herin estate rather than pass to their brother. They argue that administrative deficiencies surrounding creation of the CDs should mean they were not really joint property at all.NFP civil decisions today (4):
We conclude that the legislative and judicial history surrounding Indiana’s probate code answers this question. Absent proof that Ralph Herin intended something other than joint ownership with right of survivorship, the Non-Probate Transfer Act leads to judgment for the son. * * *
In light of the foregoing, we affirm the trial court’s decision that the Estate of Ralph E. Herrin had no ownership interest in the four CDs. Affirmed.
NFP criminal decisions today (2):
Ind. Decisions - Supreme Court decides one today. So far?
In Larry D. Russell, Jr. v. State of Indiana, a 16-page, 4-1 opinion, Justice David writes [ILB emphasis]:
Larry D. Russell, Jr. pleaded guilty to five counts of class C felony neglect of a dependent and two counts of class C felony criminal confinement. The plea agreement left sentencing to the discretion of the trial court but capped Russell’s sentence at ten years “pursuant to Indiana Code 35-50-1-2(c).” (App. at 89.) This Section, however, did not actually apply to Russell. Nevertheless, the trial court accepted the plea agreement and sentenced Russell to ten years in accordance with the perceived statutory cap. When Russell appealed his aggregate sentence, the Court of Appeals sua sponte determined that the misapplication of Indiana Code § 35-50-1-2(c) rendered the plea agreement void as a matter of law.
Russell petitioned this Court for transfer, and both Russell and the State argue that our precedent compels us to uphold the plea agreement. Upon review, it is clear that the ten-year cap in Russell’s plea agreement and the trial court’s imposition of a ten-year sentence were based on an erroneous application of Indiana Code § 35-50-1-2(c). Despite this mistake of law, we hold that Russell’s plea agreement is enforceable, because where a defendant like Russell pleads guilty knowingly, intentionally, and voluntarily, and where a defendant like Russell gets the benefit of the bargain with the State when the State errs, “there is no compeling reason to set aside the conviction on grounds that the sentence is later determined to be invalid.” Lee v. State, 816 N.E.2d 35, 39 (Ind. 2004). * * *
Because Lee requires us to uphold a sentencing provision that misstates the law, provided the defendant pleaded guilty knowingly, intelligently, and voluntarily—as Russell indisputably did, and provided that the defendant benefit from the bargain when the State errs—as Russell unequivocally does, we affirm Russell’s plea agreement, notwithstanding the mistaken application of the statutory cap contained within it.
Conclusion. Accordingly, we affirm the trial court’s acceptance of Russell’s plea agreement, and its imposition of a ten-year sentence, despite the mistaken application of Indiana Code § 35-50-1-2(c). Simply put, Russell’s plea agreement is valid and enforceable, as explained above. Additionally, we summarily affirm the Court of Appeals’ determination that the trial court imposed an aggregate ten-year sentence. We remand this case for proceedings consistent with this opinion.
Dickson and Rucker, J.J., concur.
Rush, C.J., concurs in result only.
Massa, J., dissents with separate opinion. [which begins, at p. 11] It would be one thing to tell the prosecution it must live with its mistaken understanding of our sentencing laws that led to its inappropriately lenient plea bargain for these monstrous crimes, particularly when the State joins the appellant in asking us to enforce its terms. A deal’s a deal, after all. But our prior holding in Lee does not compel that result—one that severely diminishes judicial review of those terms—and so, for the reasons stated below, I dissent. * * *
All this is not to say the State couldn’t ultimately plead Russell to ten years, a grossly lenient yet perfectly legal sentence. But if such an agreement is reached and accepted by the trial court, it should be the product of an informed and honest bargaining process, and not a mistake of law. Because the outcome here was dependent upon such a mistaken understanding, apparently shared by all in the room, I respectfully dissent.
Ind. Decisions - Transfer list for week ending June 26, 2015
Here is the Clerk's transfer list for the week ending Friday, June 26, 2015. It is one page (and 3 cases) long.
One transfer was granted last week:
- Antonio Smith v. State of Indiana - this transfer was granted, with opinion, on June 26th. See ILB summary here.
Not law but... - Okay, this is concerning!
The Guardian has a long story today headed "And the Pulitzer goes to… a computer: Computer-generated copy is already used in sports and business reporting – will machines soon master great storytelling?" As you read it, think of what it portents for legal writing, which is much more structured ... The story begins:
Nobody wants to confront the idea of their own obsolescence. Still, sitting across a desk from Kris Hammond, in his office overlooking the lake shore in Chicago, it is hard not to at least have a sense of the inevitable. Hammond is the co-founder and chief scientist of a company called Narrative Science, which, among other things, has worked out a way of teaching machines how to write journalism. At the moment, the computers’ output is limited to basic sports reports and business news. But Hammond is convinced this is only the beginning. It probably won’t be that long, he half-suggests, before they can bash out 2,500 word stories on innovations in machine learning for the Observer New Review. Worse, he is irrepressibly cheerful about the prospect.
“Look!” he says, “we are humanising the machine and giving it the ability not only to look at data but, based on general ideas of what is important and a close understanding of who the audience is, we are giving it the tools to know how to tell us stories.”
Terrific, I think.
Narrative Science is one of a number of companies that have married huge advances in pattern recognition software with the revolution in natural language generation to create algorithms that resemble a writer (minus the soul-searching and the procrastination and the deadline anxiety).
Courts - Waiting for SCOTUS: Final three opinions expected [Updates]
This is the final opinion day for the term. Three opinions expected:
- Glossip v. Gross (the challenge to Oklahoma's lethal injection procedure and in particular its use of midazolam, a sedative) - usage okeyed 5-4, Alito writing
- Utility Air Group v. EPA (Clean Air Act and when EPA must consider costs) - Scalia, 5-4, reversing DC Circuit. "The Court rules that the EPA interpreted the statute unreasonably when it deems cost to be irrelevant to the decision to regulate power plants." NYT story here.
- Arizona Legislature v. Arizona Independent Redistricting Commission (whether Arizona voters can transfer power over federal congressional districting to an independent commission) - RBG, 5-4, okays Arizona's use of a commission to draft federal congressional districts. Ind. has a commission, but only for use when there is a deadlock on congressional apportionment... (see this ILB post from May 10th). NYT story here.
Law - "Next Fight for Gay Rights: Bias in Jobs and Housing"
That is the headline to this front-page story by Erik Eckholm in tthe June 27th NY Times. The long story, with charts, begins:
Exhilarated by the Supreme Court’s endorsement of same-sex marriage, gay rights leaders have turned their sights to what they see as the next big battle: obtaining federal, state and local legal protections in employment, housing, commerce and other arenas, just like those barring discrimination based on race, religion, sex and national origin.[More] See also this NYT story today, headed "With Same-Sex Decision, Evangelical Churches Address New Reality."
The proposals pit advocates against many of the same religious conservatives who opposed legalizing same-sex marriage, and who now see the protection of what they call religious liberty as their most urgent task. These opponents argue that antidiscrimination laws will inevitably be used to force religious people and institutions to violate their beliefs, whether by providing services for same-sex weddings or by employing gay men and lesbians in church-related jobs.
Nationally, antidiscrimination laws for gay people are a patchwork with major geographic inequities, said Brad Sears, executive director of the Williams Institute at the School of Law of the University of California, Los Angeles. “Those who don’t live on the two coasts or in the Northeast have been left behind in terms of legal protection,” he said.
At least 22 states bar discrimination based on sexual orientation, and most of them also offer protections to transgender people.
Tennessee is one of the majority of states that do not bar such discrimination. * * *
In many states, some local governments have antidiscrimination laws, but they are often weak or poorly enforced, said Ruth Colker, an expert on discrimination law at Moritz College of Law at Ohio State University.
“Typically, the penalty for violating a city ordinance is more akin to a traffic violation,” she said. “State-level penalties can be much more significant.”
As they push for more state and local safeguards, rights advocates are also starting a long-term campaign for a broad federal shield that would give sexual orientation and gender identity protected status under the Civil Rights Act of 1964.
The goal is to achieve overlapping local, state and federal laws, an approach that has proved effective in curbing other kinds of discrimination, said Sarah Warbelow, legal director at the Human Rights Campaign, a gay rights advocacy group. Visible laws can not only permit lawsuits, she said, but also deter employers and others from biased behavior.
Although a majority of states lack such protections, federal orders and court decisions, especially in employment, are gradually offering more safeguards.
Environment - "State's preservation legacy overrides dam proposal"
The ILB has had a number of recent posts on the "Mounds Lake Reservoir" proposal that would impact Mounds State Park.
Sunday the Fort Wayne Journal Gazette had a long op-ed by David Van Gilder, a Fort Wayne attorney who served on the ACRES Land Trust board for 22 years and is a current board member of the Hoosier Environmental Council. A sidebar to the op-ed quotes from the Indiana Nature Preserves Act, adopted in 1967 to protect areas of natural significance. The long editorial piece begins:
One of Indiana’s fascinating cultural and natural preserves is Mounds State Park near Anderson. You have seen the sign for it as you drive back and forth from Fort Wayne to Indianapolis, but you probably have not heard of the scheme to build a dam on the West Fork White River to create a massive reservoir that would permanently alter Mounds State Park and, within it, a natural area protected forever under the Indiana Nature Preserves Act.It concludes:
All Hoosiers should care about this story and its outcome. The fate of Mounds State Park could foretell the result of many conflicts between short-term business interests and what we consider to be the permanent protections for the state’s nature preserves.
The General Assembly passed the Indiana Nature Preserves Act in 1967, creating a way to “permanently protect,” “in perpetuity” and forever, significant natural areas within the state. Since then, over 250 areas have been dedicated as nature preserves, totaling more than 46,000 acres.
While this may seem like many preserves and a lot of acreage, consider that Indiana contains over 2.3 million acres, that 99 percent of its original forests have been wiped out, 90 percent of its wetlands have been drained and filled, and that dozens of species of plants, animals, and insects have been forever lost. Permanent protection of much less than 1 percent of the state is very small.
Some people contend that birds and fish and animals must always give way to economic development and jobs. Yet, the Nature Preserves Act begins with the following public policy statement: “As part of the continuing growth of the population and the development of the economy of Indiana, it is necessary and desirable that areas of unusual natural significance be set aside and preserved for the benefit of present and future generations before the areas have been destroyed. Once the areas have been destroyed, the areas cannot be wholly restored.”
The act goes on to require that dedicated nature preserves be held “in trust for the benefit of the people … against modification or encroachment resulting from occupation, development, or other use that would destroy the natural or aesthetic conditions.” The law declares that nature preserves are “the highest, best, and most important use for the public benefit.” In competition between near-term business interests and permanent protection for natural areas, the public policy of Indiana is that nature preserves shall win.
More than any other reason, nature preserves are set aside to protect the plants, animals and natural communities found in them. Mounds State Park contains many unique and protected plant and animal communities.
The area that is a dedicated state nature preserve is a fen, which is a community of alkali-loving and tolerant plants, animals and insects created by water seeping through glacial gravel deposits. Fifty-five plant species occupy the protected fen. The starnose mole makes its home in the fen. And the gray petaltail dragonfly, which has been on the planet for 200 million years, is a “state rare species” found at the fen. This special ecosystem might be destroyed if the river is dammed and a static lake is formed.
The plan to build a dam and reservoir is outdated thinking from the early part of the last century and should be rejected out of hand. There are other reasons to reject it, including the cost estimated to be $400 million to $450 million, and the destruction of over 980 acres of forest, hundreds of acres of wetland, and close to seven miles of river habitat. Governmental authorities would need to condemn and take 474 residential and agricultural properties, as well as 154 business/industrial parcels. And the prehistoric mounds in the park would be threatened by the proximity of reservoir shoreline.
We should reject the thinking that current economic interests should override “forever” protections to nature preserves in Indiana. The dam idea should be scuttled. Our nature preserves must be protected now and forever.ILB: The Nature Preserves Act is found at IC 14-31-1.
Ind. Gov't. - Indiana State Park pavilion project continues to generate controversy
The ILB has had a number of posts over the past few months on the IDNR plans to build a banquet center on Dunes State Park prime beachfront. Here are the most recent stories that have come to the ILB's attention:
From Amy Lavalley of the Gary Post-Tribune, on June 19th, this long story headed "Dunes pavilion plan opponents continue fight," that begins:
The grassroots group fighting the proposed construction of a banquet and conference facility at Indiana Dunes State Park is claiming victory on two fronts, but officials involved with the project say neither issue is a stumbling block for the controversial structure.From June 23rd, a second story from the same reporter, this one headed "Dunes liquor license decision bumped to July."And from Bob Kasarda of the NWI Times, a June 27th story headed "State Park pavilion project will be focus of July 16 meeting."
A federal review of the project, being undertaken at the state park in Chesterton through a partnership between Pavilion Partners and the Indiana Department of Natural Resources, is dictated by the Land and Water Conservation Fund Act, and the local liquor commission recently tied on a liquor license for Pavilion Partners, which also is renovating the pavilion at the state park.
Ind. Decisions - Upcoming oral arguments this week and next
This week's oral arguments before the Supreme Court (week of 6/29/15):
Thursday, July 2
- 9:00 AM - Aadil Ashfaque v. State of Indiana (49S02-1505-CR-288) and Christopher Tiplick v. State of Indiana (49S04-1505-CR-287) In separate cases, the defendants were charged with certain offenses under Indiana’s synthetic drug statutes. Each defendant moved to dismiss the charges on grounds that the statutes are unconstitutionally vague. The Marion Superior Court denied the motions. In separate interlocutory appeals, the Court of Appeals reversed the trial court, concluding the statutes are unconstitutionally vague based on the definition of “synthetic drug” in Indiana Code section 35-31.5-2-321(9). Ashfaque v. State, 25 N.E.3d 183 Ind. Ct. App. 2015), vacated; Tiplick v. State, 25 N.E.3d 190 (Ind. Ct. App. 2015), vacated. The Supreme Court has granted petitions to transfer the cases and has assumed jurisdiction over the appeals. Oral argument in the two appeals is consolidated for purposes of the argument only.
ILB: For much useful background, including last week's decision by the SCOTUS, and a proposal from the 2015 General Assembly, see this ILB post from June 19th.
- 9:45 AM - Christopher Schmidt v. Indiana Insurance Company, C&F Insurance Group, and Bart Stith (22A01-1403-PL-135) Christopher Schmidt obtained insurance for his vacant rental property through insurance agents. When the property was destroyed by fire, the insurance carrier rescinded the policy because the insurance application did not reveal the property’s true condition. Schmidt brought this action against the agents, alleging they falsified the application. The Floyd Superior Court granted summary judgment to the agents, finding Schmidt had not provided evidence that he could have obtained insurance on the property anywhere else. The Court of Appeals reversed. Schmidt v. Ind. Ins. Co., et al., 24 N.E.3d 516 (Ind. Ct. App. 2015). The agents have petitioned the Supreme Court to accept jurisdiction over the appeal.
ILB: This was a Jan. 14, 2015 opinion (2nd case), concluding "Summary judgment was not proper for Agents because Schmidt designated evidence that gave rise to a genuine issue of material fact. However, as Schmidt did not do so in response to Indiana Insurance’s motion for summary judgment, summary judgment for Indiana Insurance was proper."
- 10:30 AM - Termination of Parent-Child Relationship of V.A.; A.A. v. Indiana Departement of Child Services (02A04-1405-JT-233) The Allen Superior Court terminated father’s parental rights after determining father was unwilling or unable protect child from mother, who suffered from mental illness. Mother’s rights were terminated in the same proceeding. Father appealed the termination of his rights and the Court of Appeals affirmed. In re V.A., No. 02A04-1405-JT-233 (Ind. Ct. App. Dec. 18, 2014) (Mem. Dec.). Father has petitioned the Supreme Court to accept jurisdiction over the appeal.
ILB: This argument originally had been set for June 1st. This was a 2-1, NFP Feb. 10, 2015 COA opinion.
Next week's oral arguments before the Supreme Court (week of 7/6/15):
- No arguments currently scheduled.
Webcasts of Supreme Court oral arguments are available here.
This week's oral arguments before the Court of Appeals (week of 6/29/15):
- No oral arguments currently scheduled.
Next week's oral arguments before the Court of Appeals (week of 7/6/15):
Tuesday, July 7
- 1:00 PM - BGC v. Burchanan (49A05-1408-CT-373) On July 29, 2007, following her shift as a cocktail waitress at Brad's Gold Club in Indianapolis, IN, Candice Vowell struck a pedestrian, Jerry Coleman Buchanan, with her vehicle. After it was determined that Vowell had consumed alcohol at Brad's Gold Club, Buchanan sought to hold Brad's Gold Club liable under both the Dram Shop Act and common-law negligence. The Dram Shop Act precludes civil liability for furnishing alcoholic beverages unless the person who furnished the alcoholic beverage had actual knowledge that the person to whom the alcoholic beverage was furnished was visibly intoxicated at the time. Buchanan filed a motion for partial summary judgment, alleging that Vowell's knowledge of her own intoxication should be imputed to Brad's Gold Club as her employer. Brad's Gold Club, however, filed a cross-motion for summary judgment, asserting that the evidence indisputably establishes that Vowell was not visibly intoxicated when Brad's Gold Club furnished her a drink at the end of her shift. On appeal, the parties dispute the applicability of the Dram Shop Act versus common-law negligence and the proof required for each. The Scheduled Panel Members are: Judges Riley, Bailey and Barnes. [Where: Court of Appeals courtroom (WEBCAST)]
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.
Sunday, June 28, 2015
Ind. Gov't. - "Former judge Tim Crowley picked for Knox Co. council seat"
Jenny McNeece of the Vincennes Sun-Commercial reports today:
Retired Superior Court I Judge Tim Crowley on Saturday was chosen by local Democratic Party leaders to fill the at-large county council seat left open after the death of Steve Thais last month.
Thirty precinct committeemen gathered at City Hall for a party caucus, and it took just one ballot for Crowley to secure a majority of their votes. * * *
Crowley, who chose not to seek re-election as judge last year, said he considered Thais, who held the at-large seat for more than a decade, a “friend and good guy.”
It was only upon his untimely death, Crowley said, that he considered throwing his hat in the ring.
“Had he lived, I wouldn't have given running a second thought,” he said, his wife Sandra by his side. “This was a situation where we experienced a terrible tragedy.
"But I also saw an opportunity where I could help the county," Crowley said. I have a lot of experience at the courthouse, I'm on a first-name basis with the county council members, and I know the commissioners."
Crowley served three terms — 18 years — on the bench.
Saturday, June 27, 2015
Ind. Gov't. - "Indiana governor candidates react to the ruling"; More
The NWI Times has compiled the four announced candidates responses yesterday to the SCOTUS same-sex marriage decision. They range from Gov. Pence's assertion that Indiana will obey the law, and Glenda Ritz's assertion that "we still have more work to do", to detailed plans set out by candidate John Gregg and Karen Tallian:
- Gregg: "As Governor I will seek the full repeal of the divisive RFRA law and will work to extend full civil rights protections to LGBT citizens so a person’s sexuality can no longer be used as grounds for termination of a job or denial of any public services or accommodations. I’ll also sign an executive order to outlaw discrimination of LGBT Hoosiers within state government and in any entity that wishes to do business with the state or receive funds from my administration."
- Tallian: "As Governor, I would ask the same legislators who voted for RFRA and the so-called 'fix,' to once and for all repeal this harmful legislation. And even though our state’s defense of marriage act statute is no longer enforceable, as Governor I will also ask our legislature to remove this discriminatory language. These items should not be allowed to remain on the books as legacies to discrimination. Finally, it’s time our state adds civil rights protections for our LGBT community into state statute. I will author this bill in the 2016 Legislative Session and as Governor, issue an executive order protecting state employees against discrimination. It has been a long time comin’ and I could not be more proud of the steps taken by this Court. I hope to see the leaders of this state follow quickly behind on RFRA and our statutory DOMA language."
Friday's Supreme Court ruling may have settled the legality of same-sex marriage in the United States, but in Indiana, the underlying fight is far from over.And some quotes from this story by Joan Biskupic in Reuters that reports:
The U.S. Supreme Court's declaration on Friday of a right to same-sex marriage resolved a momentous question, yet the ruling left many others unanswered and is likely to spark future legal battles over gay rights.
In America, the right to marry represents only one piece in the evolving legal framework for gay civil rights.
Currently no constitutional principle or nationwide law broadly prohibits discrimination based on sexual orientation. So in the majority of states, for example, landlords can legally turn away renters because they are gay and employers can reject job applicants for their sexual orientation. * * *
Advocates on both sides said on Friday the ruling will likely spawn a new round of litigation in areas such as parental rights and spousal benefits, as well as religion.
Declaring a right to marry does not revolve all rights for gay couples and their families. State laws vary regarding adoption, for example, and in some states where gay marriage was already allowed, lesbian parents have sued to get both of their names, not only the birth mother’s, on the birth certificate.
Michigan, one of four states whose bans on gay marriage were challenged in Friday's case, earlier this month passed a law allowing private adoption agencies to refuse to place children with same-sex couples on religious grounds.
Separate lawsuits are already pending in lower courts over the timing of spousal benefits in the workplace and whether court rulings on marriage rights can be applied retroactively.
Friday, June 26, 2015
Ind. Decisions - Supreme Court issues two this afternoon
In Antonio Smith v. State of Indiana, a 14-page, 5-0 opinion, Justice Dickson concludes:
Finding that the State did not use false testimony to convict the defendant in violation of his due process rights and that the incredible dubiosity rule is not applicable to this case, we affirm the defendant's conviction.In Andrew S. Satterfield v. State of Indiana, a 13-page, 5-0 opinion, Chief Justice Rush writes:
[This text is locked and cannot be copied, as just are the COA opinions today! What gives?]
Ind. Courts - "Technical Error Being Corrected On Appellate Docket"
The Indiana Courts has just posted this notice:
The Supreme Court is correcting a technical error which appears in certain cases on the appellate docket. The error involves some case numbers or dates listed incorrectly on the chronological case summary (CCS).
In May, the Court announced details about migrating from a 28 year-old case management system to the statewide Odyssey case management system. In such a migration there can be data conversion errors, especially when data is migrated from very old systems.
A problem with migration occurred when the numbers 1 and 6 were in consecutive order, for example 4/16/2014. In isolated instances the number 1 did not migrate with the number 6. The problem is being corrected, and in each case where a correction occurs, a notation will be placed on the CCS of each case affected.
Ind. Decisions - Court of Appeals issues 3 opinion(s) today (and 3 NFP memorandum decisions)
[Unfortunately, all of the COA opinions I've tried to access today have been "locked" so as to prevent copying text.]
For publication opinions today (3):
In Wells Fargo Bank, N.A. v. Rieth-Riley Construction Co., Inc.; Woodmar Hammond, LLC; The Bon-Ton Department Stores, Inc.; Build Tech, Inc.; Ziese & Sons Excavating, Inc.; et al , an 18-page opinion, Judge Baker writes: [locked]
Sabrina Y. Dada v. State of Indiana [locked]
NFP civil decisions today (1):
NFP criminal decisions today (2):
Ind. Decisions - 7th Circuit decided one Indiana case yesterday, and one today
(June 25, 2015) In USA v. Pascal Sylla (SD Ind., Barker), a 7-page opinion, Judge Bauer writes:
In December 2010, deoxyribonucleic acid (“DNA”) testing linked defendant-appellant, Pascal Sylla, to an attempted bank robbery that occurred on August 1, 2003. Sylla was indicted on July 16, 2013, in connection with that attempted robbery of nearly ten years prior. He moved to dismiss the indictment, claiming that the applicable five-year statute of limitations had run, see 18 U.S.C. § 3282(a). The district court denied his motion and Sylla proceeded to trial; the jury found him guilty. Sylla appeals, arguing that the federal DNA tolling statute, 18 U.S.C. § 3297, is unconstitutional as applied to his case. We reject Sylla’s constitutional challenge and affirm his conviction. * * *(June 26, 2015) In Renato Debartolo v. USA (ND Ind., Miller), a 10-page opinion, Judge Posner writes:
Plainly stated, there is nothing vague about § 3297 as applied to this case. Although it is possible to envision a situation where § 3297’s tolling effect works to materially prejudice a defendant’s ability to put on a defense, Sylla has not identified any such prejudice that occurred in his case. Accordingly, we reject Sylla’s constitutional challenge to § 3297.
Renato DeBartolo, 48 years old, immigrated to the United States with his family at the age of one, but unlike most of his family never got around to applying for U.S. citizenship. He is married to an American citizen, however, and his seven or ten children (the correct number is uncertain) are of course American citizens as well. He has no family in Italy and has never learned Italian. Until recently deported to Italy, he lived in Indiana, where he owned a small construction company from 2008 to 2010. In 1996 he had been sentenced in an Indiana court to eight years in prison for dealing in cocaine, but the last four years had been suspended, so he had been released after four years; and no removal (i.e., deportation) proceedings had been instituted against him. In 2011 he was indicted in fed-eral court for possessing with intent to distribute more than 100 marijuana plants and with manufacturing (not the right word—marijuana plants are grown rather than manufac-tured—but the statutory term) more than 100 such plants (the same plants), both being violations of 21 U.S.C. § 841(a)(1). He had grown the plants in a barn. Marijuana plants need bright light to grow to their maximum size, and DeBartolo had powered the lighting fixtures in the barn with electricity that he stole from the electric company by running a clandestine power line from the company’s line to his barn.
The minimum statutory prison term for the offense to which he pleaded guilty was five years. But as a result of the help he gave the government after his arrest to apprehend other drug dealers in his area, and of his pleading guilty to the manufacturing offense (thus sparing the government the bother and uncertainty of a trial), the government moved for a below-minimum sentence after citing the substantial assis-tance to law enforcement that DeBartolo had rendered. On the basis of the plea deal, the district judge sentenced DeBar-tolo to only 25 months in prison. See 18 U.S.C. § 3553(e); U.S.S.G. § 5K1.1. The distribution charge was dropped, and though DeBartolo pleaded guilty in state court to the electricity theft, the state court imposed a prison sentence to run concurrently with his federal sentence.
There was no mention of deportation in the federal case. But unbeknownst to DeBartolo, and also it seems to his law-yer, the prosecutors, and the judge, his conviction of the drug offense made him deportable (“removable” is the offi-cial term) and, were he ordered removed, would prevent him from applying for cancellation of removal. See 8 U.S.C. §§ 1101(a)(43), 1227(a)(2)(A)(iii), (B)(i), 1229b(a)(3).
Removal proceedings were indeed instituted, and after he completed his prison sentence he was removed to Italy, where he remains. But while his removal case was pending he had filed a motion in the district court under 28 U.S.C. § 2255(a), claiming that he had been denied effective assis-tance of counsel in his criminal case in violation of the Sixth Amendment, because his lawyer had failed to warn him that if he were convicted he could well be deported; nor had he been told by anyone else. The relief he sought in his section 2255(a) petition for the failure to warn him of the risk of re-moval was withdrawal of his guilty plea, which would ena-ble him to request a trial or try to negotiate a plea of guilty to a non-removable offense. The judge denied the petition, precipitating this appeal.
The failure to inform a defendant that if convicted he will be deported was held by the Supreme Court in Padilla v. Kentucky, 559 U.S. 356, 369 (2010), to be ineffective assistance of counsel, violative of the Sixth Amendment. As later noted in Missouri v. Frye, 132 S. Ct. 1399, 1407 (2012), “plea bargains have become so central to the administration of the criminal justice system that defense counsel have responsibilities in the plea bargain process … that must be met to render the adequate assistance of counsel that the Sixth Amendment requires in the criminal process at critical stages.” But there are two kickers.* * *
DeBartolo unquestionably wants to roll the dice, which is strong evidence that he also would have chosen to roll the dice four years ago had he known about the deportation threat. He faces the same risk of conviction and a long sen-tence now that he did then. His personal choice to roll the dice is enough to satisfy the “reasonable probability” standard. * * *
But it would be sensible for both DeBar-tolo and the government to consider the current situation in assessing how to move forward. Conviction is not a forgone conclusion, and the government should consider whether having served the prison sentence the government originally recommended and having then languished in the custody of the Immigration and Naturalization Service for a year or more and then deported to a country in which he has never really lived, DeBartolo has been punished sufficiently and should now be allowed to go home to his wife and children without facing a new trial.
The denial of the petition for relief under 28 U.S.C. § 2255 is REVERSED.
Courts - SCOTUS rules, 5-4, nationwide right to same sex marriage
Holding: Fourteenth Amendment requires a state to license a marriage between two people of the same sex.
Here is the opinion in Obergefell.
The other case decided today: Johnson v. U.S.
SCOTUSblog: Court holds that imposing an increased sentence under the Armed Career Criminal Act's residual clause violates due process.
"When Justice Scalia floated the idea that ACCA was unconstitutionally vague several years ago, it looked like a kind of scream into the wind. Now, it has the support of SIX Justices." Eric Citron
Courts - "Context for the Arizona Redistricting Case"
Also highly recommended, by Richard Pildes, via Rick Hasen.
Courts - Recommended reads on yesterday's decision in King v. Burwell
First, Linda Greenhouse's op-ed in the NY Times, wherein she writes:
“Exchange established by the State.” Do “words no longer have meaning,” as Justice Scalia put it in his angry dissenting opinion? What, after all, could be clearer? The state, not the federal government. The two are not the same. They are different! So poor and middle-class people in the 34 (mostly red) states that refused to set up their own insurance exchanges, defaulting that task to the federal government, are just out of luck. They aren’t eligible for tax subsidies to help them buy insurance, subsidies that are critical to making the law work. End of story, end of case, end of the Affordable Care Act (or Scotuscare, as Justice Scalia said the law should be re-named).Second, Georgetown Law Prof. Marty Lederman's article in Slate:
The chief justice’s masterful opinion showed that line of argument for the simplistic and agenda-driven construct that it was. Parsing the 1,000-plus-page statute in a succinct 21-page opinion, he deftly wove in quotations from recent Supreme Court opinions.
Who said that we “must do our best, bearing in mind the fundamental canon of statutory construction that the words of a statute must be read in their context and with a view to their place in the overall statutory scheme”? Why, it was Justice Scalia (actually quoting an earlier opinion by Justice Sandra Day O’Connor) in a decision just a year ago.
And who said that “a provision that may seem ambiguous in isolation is often clarified by the remainder of the statutory scheme” because “only one of the permissible meanings produces a substantive effect that is compatible with the rest of the law”? Why, Justice Scalia again.
“In this instance,” Chief Justice Roberts wrote, “the context and structure of the Act compel us to depart from what would otherwise be the most natural reading of the pertinent statutory phrase.” He concluded: “A fair reading of legislation demands a fair understanding of the legislative plan.” Among the chief justice’s silent partners in the six-justice majority opinion was Justice Kennedy, by most accounts the driving force behind the near miss three years ago.
The chief justice’s opinion today, for six justices, comes down forcefully on the side of the sort of interpretive pragmatism I described above—an effort to make sense of the legislature’s handiwork, even where, as in this case, that handiwork left much to be desired because of structural and political pathologies in the Senate. (In the chief’s words, “the Act does not reflect the type of care and deliberation that one might expect of such significant legislation.”)
Chief Justice John Roberts does not expressly invoke purposivism, as such. Nor does he say that the plaintiffs’ reading would be absurd. What the chief does say, however, is that the plaintiffs’ reading would be untenable in light of the statute viewed as a whole. * * *
And the chief was undoubtedly correct—indeed, “untenable” is putting it mildly.
Thursday, June 25, 2015
Ind. Gov't. - More on "House brings in lawyer for fight over records"
Supplementing Niki Kelly's must-read Fort Wayne Journal Gazette story from yesterday ("House brings in lawyer for fight over records"), Dave Bangert of the Lafayette Journal&Courier today has a long column titled "$440/hour to defend this guy’s secrets" that begins:
Here’s what you get for $440 an hour these days: An Indiana House determined to keep secrets, all on your dime.Further on in the long column detailing how we got to now:
The latest episode in just how far Indiana legislators will go to prove they are above the state’s open records laws twisted down a new hole with this week’s revelation that they’d hired outside counsel to help the cause.
As reported by Niki Kelly, Statehouse reporter for the Fort Wayne Journal Gazette, House Speaker Brian Bosma bypassed Attorney General Greg Zoeller’s office — essentially on retainer in defense of the state in most cases — to bring in Indianapolis attorney Geoffrey Slaughter. A part of the Taft Stettinius & Hollister law firm, Slaughter makes that aforementioned $440 an hour.
What will it buy?
Specifically, Bosma is looking to tamp down open records requests into the emails of state Rep. Eric Koch, R-Bedford, regarding House Bill 1320. The Citizens Action Coalition of Indiana, the Energy and Policy Institute and Common Cause of Indiana have made two requests to inspect Koch’s emails related to the bill dealing with solar energy. They wanted to know how Koch’s personal investments and ties to the energy industry — pointed out in an Indianapolis Star investigation earlier in the session — might have fueled his motivation.
After being denied twice by the Indiana House Republican Caucus, the nonprofit groups sued.
In a larger, more important sense, Bosma is looking to preserve what lawmakers defended as “House tradition,” as the Indiana House Republican Caucus put it in when denying access to Koch’s email. That is, the Indiana House believes the Indiana Access to Public Records Law is for every branch of government other than the General Assembly.
When it comes to protecting that tradition, money is no object.
Closed door tricks are no object, either. Here’s the short course.
As reported in late May, again by the Journal Gazette’s Kelly ["Secrecy fight brews for legislators: General Assembly lacks policy on accessible records" - here in ILB], the House waited until after the 2015 session to update its handbooks with a revised definition, without bothering to commit it to an actual law.ILB: See also this ILB post from June 2nd.
The new House rules define the work product as “documents, notes or other writing or records, in any form, composed, edited or modified by members, staff or officers of the House and any communications that are made or received by means of electronic mail, voice mail, text messaging, paper or video audio recording or in any other form.”
In other words, everything — from deep-weed, game-changing records to text messages about specials at downtown Indianapolis food trucks. House members are immune, according to convenient House rules written by House leaders.
Ind. Decisions - Court of Appeals issues 2 opinion(s) today (and 2 NFP memorandum decisions)
For publication opinions today (2):
In Dennis Johnson, Raymond Johnson v. State of Indiana , a 35-page opinion with a separate concurring opinion, Judge Robb writes:
For their participation in a 1996 robbery gone awry, Dennis Johnson and Raymond Johnson were each convicted in 1997 of felony murder and carrying a handgun without a license and sentenced to serve an aggregate term of fifty-five years. In 2013, Dennis and Raymond filed petitions to modify their respective sentences. Following a hearing in August of 2014, the trial court denied both petitions because the prosecutor did not consent to modification. In this consolidated appeal, the Johnsons contend the trial court erred in requiring the prosecutor’s consent because prior to the hearing on their petitions, the statute allowing sentence modifications was amended to remove that requirement. Concluding the trial court did not err in applying the prior version of the statute which required prosecutorial consent and in denying the petitions to modify on that basis, we affirm. * * *In Lakisha Jordan v. State of Indiana, a 20-page opinion, Judge Brown writes:
Conclusion. Because the 2014 amendment to Indiana Code section 35-38-1-17 was neither remedial nor procedural, and because the savings clause evinces the intent of the legislature to apply the new criminal code only prospectively, the 2014 version of the sentence modification statute does not apply to the Johnsons. Therefore, the trial court properly determined that, in the absence of prosecutorial consent, it had no authority to modify the Johnsons’ sentences. The trial court’s orders denying the petitions for sentence modification are affirmed.
Brown, J., concurs.
Bailey, J., concurs in result with opinion. [which begins, at p. 16 of 35] The majority concludes that, because the recent revisions to the sentencing modification statute are neither remedial nor procedural, a prior version of the sentencing modification statute applies to the Johnsons’ petitions. I agree that the prior version of the statute applies in this case, but do so because of the time the Johnsons filed their petitions. I disagree that their dates of conviction and sentencing are controlling and therefore respectfully concur only in the result. * * *
Conclusion. I would hold that the revised statute applies to all petitions filed on or after July 1, 2014, regardless of the petitioner’s conviction or sentencing date. Here, the Johnsons filed their petitions before the effective date of the statute, and thus the trial court did not err in applying the prior version of the statute and denying their petitions for lack of prosecutorial consent. Because I reach this conclusion on a different basis than the majority, I respectfully concur in the result.
 [on p. 14 of main opinion] We note, as does the dissent ...
Lakisha Jordan appeals her convictions for resisting law enforcement as a class A misdemeanor and disorderly conduct as a class B misdemeanor. Jordan raises two issues which we consolidate and restate as whether the evidence is sufficient to sustain her convictions. We affirm in part, reverse in part, and remand. * * *NFP civil decisions today (2):
Jordan challenges whether the evidence is sufficient to sustain her conviction for disorderly conduct, with particular emphasis on whether her speech constituted free speech under the Indiana Constitution. * * *
As noted, if the claimant demonstrates under an objective standard that the impaired expression was political speech, the impairment is unconstitutional unless the State demonstrates that the “magnitude of the impairment” is slight or that the speech amounted to a public nuisance such that it “inflict[ed] ‘particularized harm’ analogous to tortious injury on readily identifiable private interests.” Barnes, 946 N.E.2d at 577 (quoting Whittington, 669 N.E.2d at 1369-1370 (quoting Price, 622 N.E.2d at 964)). We cannot say that the State demonstrated that the magnitude of the impairment was slight. Nor can we say that the harm suffered by the people in the liquor store lot and across the street rose above the level of a fleeting annoyance or that the State demonstrated that the speech amounted to a public nuisance such that it inflicted particularized harm analogous to tortious injury on readily identifiable private interests. Accordingly, we conclude that Jordan may not be punished, consistent with the Indiana Constitution, for her particular speech. See Price, 622 N.E.2d at 964-965.
NFP criminal decisions today (0):
Courts - SCOTUS upholds Affordable Care Act
Here is the 6-3 opinion in King v. Burwell, authored by the CJ.
Here is the "disparate impact" Fair Housing opinion: Texas Dept. of Housing v. Inclusive Communities.
Five cases left, next and possibly last decision day is tomorrow (Friday) ... Monday remains an option.
Ind. Decisions - 7th Circuit posts one Indiana case, decided June 24th
In Robin Allman v. Kevin Smith and City of Anderson (SD Ind., Pratt), a 9-page opinion, Judge Easterbrook writes:
After being elected Mayor of Anderson, Indiana, a city of about 56,000 people, Kevin Smith replaced many members of the City’s staff with his political supporters or persons he deemed trustworthy. Eleven of the fired workers filed this suit under 42 U.S.C. §1983, contending that the discharges violated the First Amendment as understood in Elrod v. Burns, 427 U.S. 347 (1976). The district judge concluded that all plaintiffs have enough evidence to require a trial but that Mayor Smith is entitled to qualified immunity with respect to nine of the eleven plaintiffs’ claims. 6 F. Supp. 3d 889 (S.D. Ind. 2014).
The Mayor has appealed from the adverse portion of this interlocutory decision, relying on Mitchell v. Forsyth, 472 U.S. 511 (1985), and its successors. Surprisingly, the City also has appealed, even though as a municipal body it is not entitled to any form of immunity and is outside Mitchell’s ambit. The City invokes the doctrine of “pendent appellate jurisdic tion,” which barely survived its scathing treatment in Swint v. Chambers County Commission, 514 U.S. 35 (1995), and today allows a court of appeals to review an interlocutory order only when it is “inextricably intertwined” with an appeala-‐‑ ble decision. Clinton v. Jones, 520 U.S. 681, 707 n.41 (1997). * * *
The appeal is dismissed to the extent it concerns the City of Anderson or Robin Allman’s claim. The district court’s decision that Mayor Smith is not entitled to qualified im munity on Margaret Baugher’s claim is affirmed.
Courts - "Chicago Tribune sues city to get email records"
Annie Sweeney of the Chicago Tribune reported yesterday:
The Chicago Tribune sued the city of Chicago on Wednesday in a dispute over the news organization's public records request for emails from the office of Mayor Rahm Emanuel.The story includes links to the Tribune's complaint and exhibits. Here is the 9-page complaint.
The complaint, filed in Cook County Circuit Court, said the Tribune sought 25 email chains that may be related to a multimillion-dollar no-bid Chicago Public Schools contract now at the center of a federal criminal investigation.
The lawsuit alleged that the city's response violated the Illinois Freedom of Information Act by withholding six of the email chains entirely and redacting portions of the remaining 19 without detailing the reason for each redaction.
According to the suit, the city defended its action by saying some of the contents of the email chains fell within several exemptions allowed under FOIA. But the Tribune questioned whether the exemptions were proper and complained that the city had made its redactions in white, leaving unclear how much text it had decided not to disclose. [ILB emphasis]
Ind. Decisions - IDOR assesses personal injury attorney for the total amounts recovered on behalf of clients in settlements, but attorney prevails
The Indiana Register on June 24, 2015 published this Letter of Findings from the Indiana Department of Revenue. Some quotes:
HOLDING: Individual established that he had correctly reported his federal adjusted gross income. The Department's assessment of additional individual income tax was therefore incorrect. * * *
STATEMENT OF FACTS: Taxpayer is an Indiana resident who practices law in Indiana. On November 3, 2014, the Department issued a Proposed Assessment that made upward adjustments to both Taxpayer's reported 2011 federal adjusted gross income ("AGI") and Taxpayer's 2011 individual income tax liability. On November 14, 2014, Taxpayer protested that assessment. This Letter of Findings ensues. * * *
DISCUSSION. * * * A desk audit determined that Taxpayer had underreported his federal AGI, because Taxpayer's 1099-MISC forms showed substantially more Indiana income than Taxpayer had reported. Taxpayer disputed this determination. Specifically, Taxpayer asserted that (1) he is a plaintiffs' personal injury lawyer; (2) the 1099-MISC forms reflected the total amounts he had recovered on behalf of clients in settlements; (3) he had actually received only a percentage of these amounts in compensation for his services; and (4) his reported federal AGI was therefore correct. Prior to the scheduled hearing, Taxpayer provided the Department with information confirming that his reported federal AGI was correct. * * *
FINDING. Taxpayer's protest is sustained.
Courts - SCOTUS: 6 decisions remain; 3 opinion days scheduled
The opinion days are today, tomorrow, and potentially Monday, June 29th.
The WSJ Law Blog has a nice listing of the remaining cases, with summaries.
Bloomberg Politics has a story summarizing each of the six cases, classifying them by topic: gay marriage; health care; housing discrimination; lethal injection; clean air; anbd redistricting.
Follow SCOTUSblog at 10 AM for up-to-the-moment coverage.
Check the ILB too.
[Updated at 9:14 AM] Make that six "crucial cases" remain. There is a 7th, Johnson/ACCA. [Armed Career Criminal Act] [h/t/ Michelle Olson]
Wednesday, June 24, 2015
Ind. Decisions - COA issues rulings in Evansville gun case and Indy smoking ban case today
The opinions and ILB summaries are here, Magenheimer and Whistle Stop Inn.
Mark Wilson reports in the Evansville Courier & Press:
The Indiana Court of Appeals has ruled unanimously that a local man’s lawsuit against the City of Evansville can continue.David Barras reports for WISHTV 8:
Benjamin Magenheimer was removed from Mesker Park Zoo while openly wearing a handgun in 2011. A Vanderburgh Circuit Court judge ruled against the city’s motion to dismiss the lawsuit and the appeals court agreed to hear the city’s appeal.
Magenheimer’s lawsuit was filed in September 2011 under Indiana’s Firearms Preemption Act barring local governments from regulating guns, which had only been in effect a few months at the time. He contends the city violated that law when he was removed from the zoo.
City attorneys argued Magenheimer should have filed the lawsuit as a tort claim, the legal means by which citizens can sue government agencies or their employees. If so, the city argued, Magenheimer’s claim would be invalid because he did not serve proper notice of it under that law’s conditions.
Magenheimer’s attorney, Guy Relford, of Indianapolis, argued the state statute included language allowing adversely affected individuals to bring such lawsuits.
The Court of Appeals sided with Magenheimer that the lawsuit did not fit under the Indiana Tort Claims Act.
INDIANAPOLIS (WISH) An off track betting facility in downtown Indianapolis will have to go smoke free, just like other Marion County restaurants and bars.
In a ruling released Wednesday by the Indiana Court of Appeals, the court found the exception to the no smoking law for the OTB site is unconstitutional.
The court said, ” because it treats satellite facilities differently than bars and restaurants and this disparate treatment is not reasonably related to the inherent differences between the two entities. Therefore, we sever the exception from the Indianapolis No Smoking Ordinance.”
Several bars and tavern owners have been fighting to overturn the Marion County law since it was passed in 2012. Ironically, the court ruled that the smoking ban for the bars and taverns is constitutional.
Environment - "Longtime head of Indiana Farm Bureau retiring"
A widely published AP story this week reports:
FORT WAYNE, Ind. (AP) — Indiana Farm Bureau President Don Villwock is retiring this year after 14 years of leading the group.
Sixty-five-year-old Don Villwock tells WOWO that with things going well, it’s a good time to let someone bring in new ideas.
Villwock says the issues facing the Farm Bureau have shifted over his tenure, with the advent of social media, the rise of the locally grown food movement and new urban-rural tensions. Villwock says a migration of city dwellers to the countryside has brought complaints about the smell of livestock feeding operations to the forefront.
Ind. Decisions - Supreme Court issues a 2nd disbarrment today, this time a Merrillville attorney
We find that Respondent, Robert Stochel, committed attorney misconduct by stealing trust account funds belonging to a former law partner and that partner’s clients, embezzling funds from a receivership and actively concealing that theft for nearly a decade, and refusing to cooperate with the Commission’s investigations into his actions. For this misconduct, we conclude that Respondent should be disbarred. * * *
Respondent stole hundreds of thousands of dollars from the receivership and tens of thousands of dollars from his former law partner and that partner’s clients. In the receivership case, Respondent covered up his theft for nearly a decade, lied to all comers, deceived the court and later defied its orders, and actively obstructed the disciplinary process. Respondent throughout has expressed absolutely no remorse or intent to make restitution. In addition, he has neither challenged the hearing officer’s report nor argued any mitigating facts. Under these circumstances, the Court unhesitatingly concludes that disbarment is warranted.
Ind. Decisions - Court of Appeals issues 2 opinion(s) today (and 4 NFP memorandum decisions)
For publication opinions today (2):
In City of Evansville and The Evansville Department of Parks and Recreation v. Benjamin A. Magenheimer, a 14-page opinion, Judge Baker writes:
The City of Evansville (Evansville) appeals the trial court’s denial of its motion for judgment on the pleadings. Benjamin Magenheimer filed a complaint alleging that Evansville violated Indiana Code chapter 35-47-11.1, which generally bars political subdivisions from regulating firearms, when it enforced a provision of its municipal code that prohibited the carrying of firearms in public parks against Magenheimer. Magenheimer brought suit pursuant to Indiana Code section 35-47-11.1-5, which creates a private right of action for individuals to enforce the statute’s provisions. Evansville maintains that Magenheimer is effectively bringing a tort claim and that, therefore, his claim is barred for failure to comply with the Indiana Tort Claims Act1 (ITCA). Finding that the ITCA does not govern Magenheimer’s claim, we affirm the trial court’s denial of Evansville’s motion for judgment on the pleadings.In Whistle Stop Inn, Inc., and Louise Liford d/b/a Thirsty Turtle v. City of Indianapolis, Mayor Greg Ballard, Indianapolis City-County Council and Hoosier Park, LLC, a 24-page opinion, Judge Baker writes:
In this case we consider whether an exception to the Indianapolis No-Smoking Ordinance is constitutional. The Indianapolis No-Smoking Ordinance generally prohibits smoking in public places, but it also contains several exceptions to this rule. For example, tobacco retail stores and fraternal clubs whose members vote to allow smoking are permitted to allow smoking on the premises. Here, we are determining whether an exception that allows smoking in satellite facilities—specifically, Hoosier Park Winner’s Circle—violates the Equal Privileges and Immunities Clause of the Indiana Constitution. We find that the exception is unconstitutional because it treats satellite facilities differently than bars and restaurants and this disparate treatment is not reasonably related to the inherent differences between the two entities. Therefore, we sever the exception from the Indianapolis No-Smoking Ordinance.
NFP civil decisions today (1):
NFP criminal decisions today (3):
Ind. Decisions - Supreme Court disbars Kokomo attorney who had abandoned his practice and fled to Australia
In In the Matter of: Bradley D. Hamilton, a 5-page disciplinary opinion where there was "no appearance for the respondent," the Court writes, per curiam:
We find that Respondent, Bradley D. Hamilton, committed attorney misconduct by abandoning his law practice and clients, stealing their money, and fleeing to Australia. For this misconduct, we conclude that Respondent should be disbarred. * * *
The eleven counts of misconduct in this case arise from Respondent’s abrupt abandonment of his Kokomo law practice and move to Australia in September 2013, two days after enlisting Brent Dechert as his attorney surrogate. See Admis. Disc. R. 23(27). Counts 1 through 7 each involve particular clients who retained Respondent to file bankruptcy petitions. In each case, Respondent was paid a retainer fee up front, did little or no work on the case thereafter, and eventually absconded to Australia without refunding or making arrangements to refund unearned legal fees. In most of the cases, Respondent was largely unresponsive to client inquiries regarding case progress, and in two of the cases Respondent knowingly misrepresented to the client that a bankruptcy petition had been filed when in fact no petition had been filed. Counts 8 through 10 are similar in nature and involve particular clients who retained Respondent in various non-bankruptcy matters. Finally, Count 11 charts twenty-two additional clients of Respondent identified by Dechert as having been abandoned by Respondent with legal matters still pending, and to whom unearned fees are still owed.
In sum, Respondent was paid a total of $58,366 by the clients identified in these eleven counts. None of these clients’ legal matters were completed by Respondent. The balance in Respondent’s attorney trust account at the time it was turned over to Dechert was $2,060, with no records left indicating to which client or clients that sum belonged. * * *
For a variety of reasons, an attorney may be faced with the need or desire to wind down his or her law practice. Whatever the reason, the attorney’s ethical obligation to protect clients’ interests is clear. Among many other things, key practice management records (such as client files and business and trust accounts) should be in order and reconciled, clients should be notified and kept fully and accurately informed of matters relating to their case, fee issues should be resolved, and appropriate contingency plans for transitioning clients’ cases to successor counsel should be implemented.
Respondent did virtually none of these before absconding to Australia. He did not reconcile his trust account; he looted all but a small portion of it and left behind no records indicating to which client(s) that remaining sum belonged. He did not notify clients of the status of their cases; when clients inquired, Respondent mostly avoided them and in some instances lied to them. Respondent did not refund unearned fees; he stole them. Most clients were not notified of his impending move out of the country, and Respondent continued to accept new clients (and their money) even as the abandonment of his law practice was imminent. Finally, while Respondent did enlist the aid of Dechert as an attorney surrogate, Respondent did so at the last minute and in a manner that precluded Dechert, despite his commendable efforts to triage the harm caused by Respondent, from being able to fully protect the interests of Respondent’s clients.
Ind. Courts - Successor to COA administrator Steve Lancaster named
And it is Larry L. Morris, currently the senior law clerk for retiring Court of Appeals Judge Ezra H. Friedlander. From the news release:
INDIANAPOLIS – The Court of Appeals has selected Attorney Larry L. Morris as its new court administrator, effective Oct. 1. Morris will succeed Steve Lancaster, who will retire in September after 20 years with the court.
Morris is the senior law clerk for Court of Appeals Judge Ezra H. Friedlander, for whom he has clerked for 22 years. He graduated from Lincoln Christian University, IL, with a B.A. in theology in 1979 and in 1983 earned an M.A. in human development counseling from the University of Illinois-Springfield. He obtained his law degree in 1991 from Indiana University School of Law-Indianapolis, where he served as articles editor on the Indiana University Law Review. * * *
The court administrator provides a full range of administrative services to the 15-member court. Specific duties include court legal services, budgeting, personnel management, facilities management, and implementation of the new digital case management and pending e-filing systems. The administrator works for the entire court, under the direction of the chief judge.
Ind. Gov't. - Public access: "House brings in lawyer for fight over records"
Niki Kelly of the Fort Wayne Journal Gazette reports today:
The Indiana House has hired an outside attorney costing $440 an hour to defend its contention that the legislature doesn’t have to follow the state public records law.More coming ...
There is no cap on the cost of the legal fees, and the money will come out of the Indiana House budget. The engagement letter also notes the House is paying for co-defendant Rep. Eric Koch’s legal fees and expenses as well.
Indiana Attorney General Greg Zoeller’s office would usually defend any lawsuits, but House Speaker Brian Bosma asked to hire outside counsel, which Zoeller approved.
The parties will be represented by Geoffrey Slaughter, whose rate is $440 an hour. A second lawyer is assisting at $345 an hour. Both are with the Taft Stettinius & Hollister law firm in Indianapolis.
Slaughter has been representing the Indiana House Republican Caucus and Koch, R-Bedford, since May 26 in the case. According to his firm’s website, he has constitutional litigation experience. He was a finalist for an open Indiana Supreme Court Justice position in 2012.
The Citizens Action Coalition of Indiana, Energy and Policy Institute and Common Cause Indiana sued in April over an open records request for correspondence between Koch and various utilities regarding a bill about solar power.
The suit came after the House denied the request, saying the Indiana General Assembly is exempt from Indiana’s Access to Public Records Act. The state’s Public Access Counselor disagreed and ruled the legislature must comply with the state law.
A second request was drafted to more directly specify what records were sought. But the Indiana House still balked, continuing to claim it isn’t required to by law but also now referencing a work product exception in denying the request.
The Indiana Access to Public Records Act provides one specific exemption for “the work product of individual members and the partisan staffs of the general assembly.” But there is no definition of what “work product” is. Instead, the Indiana House changed its employee handbook after session to essentially classify all communications as work product.
Bosma has said in the past that the issue is about protecting constituents’ ability to interact with legislators on private issues without fear that it will end up in the media.
The agreement points out that the proper defendant in the case is the Indiana House – not the Republican caucus specifically. It also says the attorneys are not currently aware of any conflict between the interests of the Indiana House and Koch.
“We believe that Taft is able to provide competent and diligent representation to both,” the engagement letter said.
The letter said if disagreements arise between Koch and Bosma on the case, they must be worked out between the two parties without the attorneys involved. If that is not possible, the joint representation will be terminated.
Ind. Law - "Battle over guns in the workplace heads to court"
That is the headline to this Fox59 story reported by Nicole Pence late yesterday (with video). Some quotes:
A Shelbyville nurse was fired from her job after having a gun in her car. Now, she’s suing to get her job back.
Firearms attorney Guy Relford filed a lawsuit Monday on behalf of his client, Melinda Voris.
“We have statues in Indiana that protect employees and specifically their right to have a gun in the car to and from work. My client just wants her job back,” said Relford.
Voris was fired from her job at the Walker Place in January. It’s a senior living community in Shelbyville.
Relford says his client left work to take a smoke break off property. When Voris opened her glove compartment in her car, her co-worker noticed her gun. That co-worker told management, and a few days later Voris was fired from her nursing job.
Relford explained, “My client was asked ‘Do you have a gun in your car on company property?’ and she was truthful and said “Yes, I keep it in my glove compartment in my locked car.’ And on that basis she was terminated. And we feel that’s a direct violation of Indiana law. She had a valid carry permit.”
Walker Place management is owned by Chicago-based company Enlivant. The company says Voris was fired because the company handbook says weapons are not allowed.
According to an Indiana law passed in 2010, employees can put their weapons in their car, as long as they have a carry-permit and “if the gun is locked in the trunk, kept in the glove compartment of their locked car, or stored out of plain sight in the locked car.”
“I think in this situation the Illinois-based company does not understand Indiana law. We are hoping they realize they violated an Indiana statue and do the right thing,” said Relford.
Ind. Courts - "Hackers gain access to Clarksville Town Court records, according to judge" [Updated]
This brief story appeared yesterday via Louisville's WDRB:
LOUISVILLE, Ky. (WDRB) -- Hackers illegally gained access to classified records housed by the Clarksville Town Court earlier today, according to a judge.ILB: The ILB recalls reading a similar story some time ago (like last year) from the same locality, but can't locate it...
In a news release, James F. Guilfoyle, a Clarksville Town Court Judge, said the hackers were able to gain access to sensitive information, possibly including names, dates of birth, addresses and Social Security Numbers.
The FBI and the Indiana Supreme Court are both investigating, according to Guilfoyle, and the court will be providing information on ways affected individuals can protect themselves. Anyone who thinks they may have been affected is asked to continuously monitor their credit scores and personal accounts for unauthorized activity.
[Updated] Elizabeth DePompei's June 23rd story in the News & Tribune begins:
CLARKSVILLE — Classified case files dated 2005 and earlier on Clarksville Town Court’s server were hacked and encrypted Tuesday.ILB: That lede puts a different slant on the event: "hacked and encrypted."
Ind. Courts - Former Marion County small claims judge charged in sexual misconduct case
Michael Anthony Adams had the story in the Indianapolis Star yesterday afternoon. The story begins:
A former small claims court judge was caught on camera attempting to solicit sex acts from an inmate he was representing, court documents say.The story notes:
Clark G. Rehme, an attorney in Indianapolis, has been charged with three counts of sexual misconduct and one count of official misconduct on allegations he had two female inmates expose themselves and perform sexual acts on him in an interview room at the Shelby County Jail, a probable cause affidavit states.
Shelby County Sheriff's Department officials began investigating Rehme after an inmate told a jail officer that she did not want to be in a room with her court-appointed attorney. The inmate said the attorney, identified as Rehme, had her show him her breasts and perform sex acts on him while he exposed himself to her, court documents state.
Rehme was appointed a small claims court judge in Lawrence Township in November 2011 but was not elected in 2014 and vacated his seat in December [of 2014].ILB: A search of the ILB archives reveals this July 9, 2014 post quoting from Indiana Court Times on the status of the Marion County small claim court system (ILB emphasis):
Judge Rosenberg cites the establishment of more uniformity among the small claims courts as another success. Rather than seeing each township as its own island, the judges are beginning to visualize these courts as divisions of a countywide system. Because so many cases (excluding landlord/tenant cases) are transferred between townships, it is important for each to have similar standards and procedures. The nine township judges are moving closer to a unified system, and in March 2014, elected Lawrence Township Judge Clark Rehme as their Chief Judge. Judge Rehme will take over the Circuit Court’s role of setting the agenda and presiding over the regular meetings of the township judges.
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Tuesday, June 23, 2015
Ind. Decisions - 7th Circuit decides one Indiana case today
In Andrea Childress v. Experian Information Solutions (SD Ind., Pratt), a 5-page opinion, Judges Posner concludes:
There is more that is wrong with her case. Every bankruptcy case that is “withdrawn” at the request of the petitioner is dismissed. There was therefore no inaccuracy in the statement in the plaintiff’s credit report that her bankruptcy petition had been dismissed. Nor is the fact that such a petition is dismissed at the petitioner’s request a reliable sign that she decided not to stiff her creditors by seeking a dis-charge—she may have dismissed the petition because she thought she’d be denied a discharge. To make a consumer credit report fully precise would require an investigation that went far beyond merely noting whether the petition for bankruptcy had been dismissed at the petitioner’s request. The plaintiff does not want that; nor has she shown that it would be a feasible task to lay on the consumer credit-reporting agencies. AFFIRMED
Ind. Courts - "Angie's List sues Amazon Local" - story and the complaint
Jeff Swistek has a long story in the Indianapolis Star this afternoon. It begins:
Angie's List has sued Amazon Local, accusing it of stealing provider lists and other proprietary information from Angie's website.The ILB has obtained a copy of the 42-page complaint, filed June 19, 2015. There were also a number of other $$ documents the ILB did not download: (Attachments: # 1 Exhibit A-Membership Agreement, # 2 Exhibit B-WSJ 11-24-14 Article, # 3 Exhibit C-KaW 12-3-14 Article, # 4 Exhibit D-Forbes 11-25-14 Article, # 5 Exhibit E-Forbes 6-10-14 Article, # 6 Civil Cover Sheet, # 7 Proposed Summons)(Gasper, George) (Entered: 06/19/2015)
The federal lawsuit, filed Friday in Indianapolis, alleges that Amazon Local executives and other employees got access to the information by signing up as members of Angie's and copying provider profiles, member reviews and other information.
The information is being used by Amazon Local, a subsidiary of Internet retailing giant Amazon.com, to establish a competing service to Angie's, according to the lawsuit.
Amazon Local entered the home services procurement market last year, becoming a major new competitor to Indianapolis-based Angie's.
Ind. Decisions - Tax Court decides one today
In Aztec Partners, LLC v. Indiana Department of State Revenue, an 11-page opinion, Judge Wentworth writes:
This case examines whether the electricity that Aztec Partners, LLC used to power certain equipment between January 1, 2010, and March 31, 2011 (the period at issue) was subject to Indiana sales tax.1 The Court finds that it was not. * * *
Accordingly, the Court finds that during the period at issue the electricity that powered the electrical equipment that held and preserved the food items was essential and integral to Aztec’s integrated production process.
For all the reasons stated above, the Court REVERSES the Department’s final determination. Therefore, the Court REMANDS this matter to the Department so that it may take the actions necessary to give full effect to this opinion.
Ind. Decisions - Court of Appeals issues an additional 4 opinion(s) today (and an additional 3 NFP memorandum decisions)
If you look at the COA opinion page right now, for cases dated 06/23/15, you will count 11 cases.
Earlier today, when the ILB posted its summaries, there were 4 cases posted.
But the new batch of 06/23/15 opinions has not been added to the top of the list on the COA opinion page. Rather, and inexplicably, they are intermixed with the earlier batch of 06/23/15 cases.
If you were to number them, #1 (One West Bank), #4, #5 and #6 were updated this morning. ## 2, 3, 7, 8, 9, 10, and 11 are new. (It took me some time to sort that out, BTW, it cannot be done by just glancing at the list.)
When this happens, it frequently catches most of us who rely on the COA opinion page unaware. The only way to avoid it is not to look at the list of opinions until late in the day.
Of course, as the ILB has said more than once over the years, it would be a simple thing for the COA to separate out any newer uploaded opinions from an earlier uploaded batch with the same date. This would be the preferred solution. Or, at a minimum, to send out a notice when an additional batch of cases has uploaded, as the Supreme Court has began doing in recent months when it issues opinions sporatically duing a day.
Here now are the ADDITIONAL 7 COA opinions and NFP decisions posted this afternoon:
For publication opinions today (4):
In Stanley Kahn v. Beverly (Kahn) Baker , a 27-page case, Chief Judge Vaidik writes:
Father, following divorce, was ordered to pay the remainder of his college-aged daughter’s post-secondary educational expenses—including tuition and room and board—and medical expenses. The father and daughter had a serious dispute the month before the court’s order, however, and thereafter the daughter engaged in limited contact with her father—she sent him text and e-mail messages but did not speak to him on the telephone or meet with him in person for over a year. The father stopped paying his daughter’s expenses. Mother filed a motion for rule to show cause in an effort to get the father to comply with the court order, and the father filed a petition to modify the court order, alleging change in circumstances—specifically, that he was relieved from paying his daughter’s expenses because she had repudiated him. Following a hearing, the trial court found that the daughter had not repudiated her father, found him in contempt for failing to pay the daughter’s educational and medical expenses, and awarded attorney fees to the mother. The trial court also found, however, that under the “doctrine of unclean hands” the mother was to be held liable for her daughter’s room and board.Heritage Operating, L.P. d/b/a Empire Gas v. Lois A. Mauck and Ralph Thomas, a 17-page, 2-1 opinion, Judge Riley concludes:
On appeal, we consolidate the father’s issues into the following: (1) whether the trial court erred in finding that the daughter did not repudiate her father, and that he was not, therefore, relieved of his obligation to pay the expenses specified in the Agreed Entry; (2) whether the trial court erred by holding the father in contempt for failing to pay the daughter’s post-secondary educational and medical expenses; and (3) whether the trial court erred in awarding the mother attorney fees. Mother cross-appeals, presenting one issue for our review: whether the trial court erred in ordering her to pay the daughter’s room and board expenses. Ultimately, we affirm the trial court’s order on all of the issues challenged by the father, and reverse on the issue raised by the mother.
Based on the foregoing, we conclude that Empire Gas is not entitled to summary judgment on the Tenants’ claim of negligence because a gas company owes a common law duty of reasonable care in the distribution of its product. We further conclude that Empire Gas is entitled to summary judgment on the Tenants’ claim of strict liability because the undisputed material facts establish that Empire Gas is not a propane manufacturer. * * *In Ivan Vazquez v. State of Indiana , a 6-page opinion, Chief Judge Vaidik writes:
Vaidik, C. J. concurs in result without separate opinion
Baker, J. concurs in part and dissents in part with separate opinion [which begins, at p. 16] I respectfully dissent from the majority on the issue of negligence. To affirm the denial of summary judgment on this issue is, in my opinion, to elevate form over substance to an untenable degree. * * *
Here, Empire Gas did not know that the property was occupied after July 2011. Indeed, Empire Gas did not know that the plaintiffs existed. As a matter of law, I do not believe it is reasonably foreseeable that a new tenant would occupy the property without ever contacting Empire Gas to hook up the gas line. In my view, Empire Gas owed the plaintiffs no duty under these circumstances. * * *
I concur with the majority on the issue of strict liability.
Ivan Vazquez began serving a forty-five-year sentence for felony drug convictions in 2005. Between 2010 and 2014, Vazquez filed three sentence-modification petitions as well as a motion to correct errors, all of which the trial court denied. Vazquez, proceeding pro se, now appeals. One of Vazquez’s claims is that the recently amended sentence-modification statute—Indiana Code section 35-38-1-17—applies to him. Although this Court previously held that Section 35-38-1-17 had no retroactive application, the legislature recently amended the statute to expressly provide for retroactivity; thus, the amended statute does apply to Vazquez. This fact aside, the amended statute does not entitle Vazquez to any relief. We find no error, and we therefore affirm.In C.P. v. State of Indiana, an 18-page opinion, Chief Judge Vaidik writes:
Many state and federal courts have applied an exception to the Fourth Amendment’s exclusionary rule called the new-crime exception. This exception provides that notwithstanding a strong causal connection in fact between an illegal search or seizure by law enforcement and a defendant’s response, if the defendant’s response is itself a new and distinct crime, then evidence of the new crime is admissible notwithstanding the prior illegality. Because the purpose of the exclusionary rule—to deter police misconduct—is not advanced by suppressing evidence of a new crime committed by a defendant after an illegal search or seizure, we apply the new-crime exception to the Fourth Amendment’s exclusionary rule. And we also conclude that this exception applies equally to the Indiana Constitution. Accordingly, evidence that C.P. battered a police officer after being illegally seized is admissible. We therefore affirm C.P.’s adjudication as a juvenile delinquent for committing what would be Level 6 battery against a public-safety official if committed by an adult.NFP civil decisions today (2):
NFP criminal decisions today (1):
Ind. Decisions - Judge Posner remarks today on "a general issue of federal practice that this case illustrates"
Long-time ILB supporter, attorney Bill Groth, points to this quote from the end of Judge Posner's dissent today in a case out of Illinois, Reserve Hotels PTY Limited v. Theodore Mavrakis
I want in closing to remark a general issue of federal practice that this case illustrates. Recall that the district judge’s main reason (mysteriously ignored in the majority opinion) for dismissing Balagiannis’s suit was his fourmonth delay in filing the second letter. The second letter is crucial to his case. I find myself increasingly uncomfortable with basing dismissals with prejudice on harmless procedural bobbles. The only argument in favor of such summary justice that I can imagine is that by punishing parties for their lawyers’ mistake we improve the quality of the bar; the lawyers who disserve their clients attract fewer new clients and eventually perhaps are forced to leave the practice—an example of the positive effect of competition on the quality of goods and services that a market provides. But while this is plausible in theory, I have to say that in more than 33 years as a federal court of appeals judge I have not noted any improvement in the average quality of the lawyers who appear before us. I find it difficult to believe that punishing Balagiannis and his lawyer by in effect a “fine” of $925,000 will promote the quality of legal representation in the courts of this circuit.
Courts - NYT runs valuable biographical story on Justice Kennedy
Reported by Sheryl Gay Stolberg, this long June 21st NY Times story has much background information that was new to me, along with other facts I had forgotten. Highly recommended!
Ind. Decisions - Court of Appeals issues 1 opinion(s) today (and 3 NFP memorandum decisions)
For publication opinions today (1):
In LaQuantis Johnson v. State of Indiana , a 16-page, 2-1 opinion, Judge Brown writes:
LaQuantis Johnson appeals his conviction for unlawful possession of a firearm by a serious violent felon (“SVF”), a class B felony. Johnson raises one issue which we revise and restate as whether the trial court abused its discretion by admitting evidence obtained following a pat down of Johnson. We affirm. * * *NFP civil decisions today (2):
Johnson does not challenge the constitutionality of the initial encounter or investigatory stop. However, he does claim that the pat down was illegal under the Fourth Amendment of the United States Constitution and Article 1, Section 11 of the Indiana Constitution. * * *
Johnson asserts that Officer Bridgeforth agreed on cross-examination that he had no particular reason to believe that Johnson had a gun and no particular reason to believe that he had any contraband, and that the facts do not support a reasonable belief that he was armed and dangerous. The State argues that the trial court properly found that Officer Bridgeforth had a reasonable belief that his safety was threatened. * * *
For the foregoing reasons, we affirm Johnson’s conviction.
Pyle, J., concurs.
Crone, J., dissents with opinion. [ that begins, on p. 13] Being mindful that we not only must articulate the proper standard for reviewing the constitutionality of a patdown under the Fourth Amendment but also adhere to that standard, I respectfully dissent from the majority’s decision to affirm Johnson’s conviction. * * *
In short, I believe that the patdown of Johnson constituted an unlawful search under the Fourth Amendment. Because the firearm was the product of that search, it should have been excluded. See Hill, 956 N.E.2d at 179 (explaining that “fruit of the poisonous tree doctrine” bars evidence directly obtained or derivatively gained from unlawful search or seizure). On that basis, I would reverse his conviction for possession of a firearm by an SVF.
 Our supreme court has recently admonished this Court for correctly stating but incorrectly applying the proper standard of review. See, e.g., Civil Commitment of T.K., 27 N.E.3d 271, 274 (Ind. 2015) (disapproving line of cases reciting but not applying clear and convincing standard of proof in civil commitment cases); see also Brummett v. State, 24 N.E.3d 965, 966 (Ind. 2015) (clarifying that standard when reviewing for fundamental error has not changed despite Court of Appeals’ potentially confusing reference to standard “now” to be used when reviewing for fundamental error).
NFP criminal decisions today (1):