Tuesday, December 10, 2013
Ind. Decisions - Tax Court decides one case today
In Roderick E. Kellam v. Fountain County Assessor, a 9-page opinion, Judge Wentworth writes:
Roderick E. Kellam appeals the Indiana Board’s final determination denying a homestead standard deduction on his Fountain County property for the 2010 tax year. The Court reverses. * * *
To demonstrate that he did not receive a homestead deduction for his Wells County property in 2010, Kellam presented a document he received from the Fountain County Assessor containing information about the Wells County property. * * * Therefore, a finding that Kellam did not qualify for a homestead deduction on the 2010 Fountain County property because he had a 2010 homestead deduction on a Wells County property is unsupported by substantial or reliable evidence. * * *
The Indiana Board also appears to have concluded that the Fountain County property was not Kellam’s “principal place of residence” because Kellam was not physically residing there. The legal standard for determining an individual’s principal place of residence, however, depends on the “intention” to return to the property after an absence, not continuous physical presence at the property. See 50 I.A.C. 24-2-5. In addition to explaining that he was not physically residing at the property because he was renovating it, Kellam testified that he alone intended to seek the homestead deduction for the Fountain County property. Moreover, as further evidence of his intent, the certified administrative record reveals that he used the Fountain County property as his mailing address; as the location of his voter registration; and as the address on his driver’s license, bank statements, and tax returns. Accordingly, the Indiana Board’s conclusion that the Fountain County property was not Kellam’s principal place of residence is contrary to law.
Courts - "On average, 97 percent of defendants plead guilty in federal court."
This week’s release of the Human Rights Watch Report, “An Offer You Can’t Refuse,” confirms that harsh sentencing laws have undermined the American jury system. On average, 97 percent of defendants plead guilty in federal court. For crimes that carry a minimum mandatory sentence, going to trial has simply become too risky. As Human Rights Watch reports: “Defendants convicted of drug offenses with mandatory minimum sentences who went to trial received sentences on average 11 years longer than those who pled guilty.”The Report itself is titled "An Offer You Can’t Refuse" and is described:
The 126-page report details how prosecutors throughout the United States extract guilty pleas from federal drug defendants by charging or threatening to charge them with offenses carrying harsh mandatory sentences and by seeking additional mandatory increases to those sentences. Prosecutors offer defendants a much lower sentence in exchange for pleading guilty. Since drug defendants rarely prevail at trial, it is not surprising that 97 percent of them decide to plead guilty.
Ind. Decisions - "The mere fact that an attorney practices before a judge, without more, does not establish a basis for a judge to recuse"
In Landmark CSA Corp. v. 322 N. Walnut and Bruce N. Munson, a one-page order remanding jurisdiction to the trial court, dated Dec. 6, 2013 and signed by Chief Justice Dickson, the CJ writes:
The Honorable Linda Ralu Wolf, Judge of the Delaware Circuit Court, pursuant to Ind.Trial Rule 79, certifies this matter here for the appointment of a special judge.
And this Court, being duly advised, now finds that jurisdiction of this matter should be remanded to the Delaware Circuit Court and Judge Wolf. Judge Wolf recused in this case because Defendant Munson is an attorney who regularly practices in her court. The mere fact that an attorney practices before a judge, without more, does not establish a basis for a judge to recuse.
IT IS, THEREFORE, ORDERED that jurisdiction of this matter is remanded to the Delaware Circuit Court and Judge Wolf, provided however that if there is any other proper basis for recusal established, Judge Wolf may resubmit this matter for consideration by the Court.
Ind. Decisions - Court of Appeals issues 1 today (and 8 NFP)
For publication opinions today (1):
In David Didion and Kristi Didion as Parents and Legal Guardians of Brayden Didion v. Auto-Owners Insurance Company, a 12-page opinion (with a separate concurring opinion), Judge Bradford writes:
In June of 2008, Braydon Didion was playing in the yard of a Gas City house (“the House”) being lived in by Michael Carl when he was allegedly bit in the face by Michael’s dog and injured (“the Loss”). Von Carl and Ginger Hawk, who lived in Kentucky at the time, owned the House and had home owner’s insurance pursuant to a policy with Appellee Auto-Owners Insurance Company (“the Policy”). Michael did not notify Auto-Owners, Von, or Ginger of the Loss. Braydon’s parents, Appellants David and Kristi Didion (“the Didions”), filed suit against Michael and eventually named Ginger as a defendant. Ultimately, default judgment was entered against Michael and Ginger, although the judgment as to Ginger was subsequently set aside. Most likely in July of 2009, Ginger became aware of the Loss and the lawsuit and soon notified her insurance agent of both. In February of 2012, Auto-Owners filed a complaint, seeking a declaratory judgment that it had no liability for the Loss. The trial court entered summary judgment in favor of Auto-Owners. The Didions claim on appeal that the trial court erred in concluding that (1) Michael was not an insured under the terms of the Policy and (2) Auto-Owners was not given timely notice of the Loss. Concluding that Michael was not an insured and that Auto-Owners was not given timely notice of the Loss pursuant to the terms of the Policy, we affirm. * * *NFP civil opinions today (2):
We must conclude that Ginger’s failure to notify Auto-Owners of the Loss until over year had passed did not satisfy her obligation to do so “as soon as possible.” We have little trouble concluding that the length of delay in this case was unreasonable. * * *
Ginger’s obligation to report the Loss to Auto-Owner’s was not altered by her ignorance of it. The trial court correctly concluded that Auto-Owner’s did not receive timely notice.
MAY, J., concurs.
BAILEY, J., concurs in result with opinion. [in an opinion that begins on p. 11 of 12] I agree with the majority that the trial court did not err when it entered summary judgment against the Didions on the question of the availability of insurance coverage for Michael under the homeowners’ insurance policy of his sister, Ginger, and I concur in the majority’s reasoning on that point. I write separately because I do not think there is any need to examine the question of the timeliness of notice.
NFP criminal opinions today (6):
Ind. Courts - More on: Judicial Technology Oversight Committee (JTOC) to meet Tuesday for the second time [Updated]
The JTOC, which is chaired by Justice Massa and includes, among other, four legislative members (see this post for details) is holding its second meeting this morning.
Oddly, unlike the Commission on Children, mentioned in this earlier post today, the JTOC has neither publicly announced its meetings nor made its agendas available.
[Updated at 4:18 PM] The ILB has now obtained a copy of the JTOC agenda for this morning's meeting, via the Kathryn Dolan, the Supreme Court Chief Public Information Officer
Ind. Gov't. - Commission on Improving the Status of Children to meet Wednesday
From a courts news release:
The Commission will meet Wednesday, December 11 from 10:00 a.m. to 2:00 p.m. in Conference Room A at the Indiana Government Center South. The meeting is open to the public. Thanks to the Indiana Department of Education, the meeting will be webcast live on the Commission’s website. Archived meeting video will be online at a later date (as soon as possible).In addition
The Commission also announced an executive committee. The five members of the executive committee include Justice Loretta Rush, Representative Rebecca Kubacki, Senator Travis Holdman, Dr. Ryan Streeter and Mary Beth Bonaventura.
The Commission will hold upcoming meetings February 19, 2014 from 10:00 a.m. to 2:00 p.m. in Conference Room A and April 16, 2014 from 10:00 a.m. to 2:00 p.m. in Conference Room C at the Indiana Government Center South.
The website for the Commission on Improving the Status of Children is now available. The website links to meeting videos, agenda details and information on topics discussed.Terrific! This commission, chaired by Justice Rush, has really come through re transparency.
Environment - "Indiana challenges to pollution rules go to court"
WASHINGTON — Challenges by Indiana and other states to major air pollution rules will hit two key courtrooms Tuesday.
The Supreme Court will consider how the federal government can hold states, including Indiana, responsible for reducing pollutants from power plants that contribute to harmful levels of smog and soot in downwind states.
Indiana is among the states and power companies challenging the Environmental Protection Agency’s proposed solution.
Indiana is also one of the states contesting new national standards to reduce mercury and other toxic pollutants from coal and oil-burning power plants. That case comes before a U.S. Court of Appeals D.C. Circuit panel on Tuesday.
“It’s a very important day for clean air in America,” said Vickie Patton, general counsel of the Environmental Defense Fund, which is among the groups supporting the EPA’s positions.
Ind. Courts - Still more on: Nominations open for the 2nd District attorney member of the Judicial Nominating Commission
PRWEB posted a press release yesterday headed "Lee Christie Elected To Commission That Will Select The Next Indiana Supreme Court Chief Justice: Partner at Cline Farrell Christie & Lee to also help nominate future Indiana Supreme Court members and Court of Appeals judges. "
Ind. Gov't. - More on: "Indiana State Police tracking cellphones — but won’t say how or why"
At least three state senators plan to introduce legislation that would ban police from gathering cell phone data without first acquiring a warrant.
Sen. Brent Steele, R-Bedford, who chairs the Senate Judiciary Committee, said Monday he would co-sponsor such legislation in the wake of an Indianapolis Star investigation that revealed the Indiana State Police had acquired a "Stingray" device for $373,995.
While State Police would not say how the intended to use the device, law enforcement officials elsewhere have said such equipment is a useful tool in fighting crime and terrorism.
But the suitcase-size device alarms civil liberties and open government groups because it can track the movements of anyone nearby with a cellphone. The equipment also captures the numbers of people's incoming and outgoing calls and text messages.
The fact that police won't discuss what they do with the data they collect, or whether they have privacy safeguards, also concerned some lawmakers.
"I'm not saying we should ban them totally," Steele said Monday. "But I think there's reasonable protections that our Constitution mandates and our society expects."
Other senators who expressed concerns Monday include Brent Waltz, Jim Smith and Mike Delph, all Republicans.
"The Indiana State Police, as other police agencies across the country, uses a variety of investigative tools to apprehend people who engage in criminal acts," said a spokesman, Capt. David Bursten. "To publicly reveal our methods only makes criminals smarter about law enforcement techniques."
Citing concerns that providing any information about the technology would jeopardize the agency's ability to fight terrorism and investigate crimes, police officials declined to comment for Sunday's story in The Star. The agency wouldn't answer questions about how the device is used, what's done with the data collected, or whether it obtains a search warrant before turning the device on. Other than a one-page purchase order, police also refused to provide The Star its contract with the company.
Ind. Courts - "Clark Circuit court judge suing council to fund two new positions in probation"
Matt Koesters reports today in the Jeffersonville News & Tribune:
In September, the Clark County Council denied a request from Circuit Court Presiding Judge Vicki Carmichael to fund the creation of two new positions in the county’s probation department. The council voted 6-0 Monday to contest a lawsuit filed by Carmichael against the council in Indiana Supreme Court requesting a mandate of funds to pay for the new positions.
“I believe that, unlike some other mandates, I believe we have a chance of contesting this one,” said County Council Attorney Scott Lewis.
Before it appoints a special judge to the case, the Indiana Supreme Court has ordered mandatory mediation between the involved parties, to be completed no later than Feb. 15, 2014.
Carmichael initially requested that the county council approve salaries for two probation officer positions totaling $41,337 and $29,912, respectively. One of those officers would work with adults, while the other would work with juvenile offenders, Carmichael told the council. The council tabled the request in August before unanimously denying it at a September meeting.
Carmichael was not present at Monday’s meeting, and did not respond to a message left on her voice mail requesting comment.
In the Order for Mandate of Funds filed with the Indiana Supreme Court on Nov. 8, Carmichael argues that she supplied the county council with ample evidence to demonstrate that the creation of the two positions is necessary. * * *
Lewis said he believes the council has a shot at defeating Carmichael’s mandate lawsuit because of statements made by Circuit Court No. 1 Judge Dan Moore at previous county council meetings regarding Clark County Community Corrections being underutilized by the courts.
“This particular judge has provided us with information that there isn’t a need for two additional probation officers because for whatever reason, certain courts have reduced the amount of referrals to community corrections when there’s capacity there to absorb that rather than going to probation,” Lewis said. “So the point is, when you have another fellow judge of the unified probation department saying this is not necessary, we believe those are grounds, then, to show that we have a current judge who is part of this probation department who has said there is capacity in community corrections where there’s not a need to add two new probation officers.”
Ind. Courts - Fort Wayne doctor accused of firing for jury duty"
From the Fort Wayne Journal Gazette today, some quotes from this story by Julie Crothers:
A local pain physician faces misdemeanor charges after his former employee complained he was fired while serving on a jury.
Dr. William P. Hedrick, 52, was charged Monday with interference with jury service.
The employee, who was serving as an alternate juror during the David Bisard trial, contacted the Allen County Prosecutor’s Office after he said he had been fired from Inquest Health System. That company belongs to Hedrick.
The man told police he was in charge of purchasing at Inquest Health System, at the Lima Road location. In October, he responded to a jury summons and was picked as an alternate juror for a trial.
The man said he notified his direct supervisor that he would be away from work for up to several weeks.
While still on jury duty, he received an email from his personal assistant that said another person had been hired to do his job. The email, sent on Oct. 24, explained that the company had hired someone to handle purchasing while the employee was away.
The following day, the man received an email from the company’s director of human resources stating that Hedrick was “eliminating his employment due to volume.”
The man’s employment record stated his last day of work was Oct. 14 and his separation date was Oct. 25, according to court documents.
Monday, December 09, 2013
Ind. Courts - More on: Judicial Technology Oversight Committee to meet Tuesday for the second time
PACER, now celebrating its 25th anniversary, and Case Management/Electronic Case Files (CM/ECF), an electronic case management system that began in the late 1990s, have together fundamentally changed how federal courts, and the lawyers, judges and staff who work in them, perform their jobs.
Lawyers speak of reduced stress at a workday’s end, knowing they can electronically file a document until midnight, without fear that the courthouse doors will close on them. In clerks’ offices, work has changed from filing and stamping papers to performing quality control to make sure electronic entries are accurate and up to date. And everyone, from a self-represented litigant to an appellate judge, can track cases and case documents in nearly real time.
“Even skeptics have grown to love it,” said Stephen Funk, an Akron-based lawyer who said his colleagues quickly came to trust the system’s reliability and relative simplicity. In cases with multiple litigants, for example, it is far easier to notify all parties of new case documents by email, rather than through multiple paper mailings.
“Lawyers know that the judge is promptly receiving what is being filed,” said Funk, who practices extensively in the Northern District of Ohio. “Lawyers like the ability to get documents out to everyone simultaneously. The system works more fairly and equitably.”
Online access and case management also altered clerk’s offices, where paper had been king for decades. * * *
“Twenty-five years ago, the vast majority of cases were practically obscure. Today, every Third Branch court is using CM/ECF and PACER,” said Michel Ishakian, chief of staff for the AO’s Department of Program Services, who oversaw PACER from 2008 to 2013. “That means that all dockets, opinions, and case file documents can be accessed world-wide in real time, unless they are sealed or otherwise restricted for legal purposes. This level of transparency and access to a legal system is unprecedented and unparalleled.”
Ind. Courts - Judicial Technology Oversight Committee to meet Tuesday for the second time
Tomorrow is the second meeting of the Judicial Technology Oversight Committee - JTOC [not to be confused with the Judicial Technology and Automation Committee (JTAC), part of the Division of State Court Administration]. For background, see this Sept. 13th post on the first meeting.
For some reason, these meetings are not announced. No agenda is available, at least yet, for tomorrow's meeting.
The meeting will begin at 9:30 a.m. in Conference Room A of the Government Center South.
The ILB has learned that the focus of this meeting will be on the operation and interfacing capabilities of the various court case management systems being used in Indiana’s Circuit and Superior Courts.
As readers who have followed this topic are aware, there has been a constant tension over the years between the Judicial Technology and Automation Committee (JTAC), part of the Division of State Court Administration, and the private vendors who provide case management systems to many of Indiana's counties. This tension publicly evidences itself every two years when the automated record keeping fee used by the Court to fund JTAC project is considered by the General Assembly. See, eg, this Feb. 25, 2013 ILB post, as well as this one from May 2, 2011. (Here is a list of all ILB entries referencing JTAC.)
An announcement sent to JTOC members last month includes this information about tomorrow's meeting:
Attached, please find a list of 20 questions generated by Chairman Justice Massa. We have mailed these questions to the three case management systems (JTAC/Odyssey, CSI, and Court View) operating in our county courts. Organizations that wish to make a presentation to the Committee on December 10 will be required to return their written responses ahead of time so that each of you may review those responses and develop follow-up questions in addition to any other inquiries you have been thinking about.As the ILB's Sept. 13th post reported, the committee's charge includes electronic filing and allowing public court records to be available on the Internet, topics of much importance in the 21st century. As the ILB has noted in its last two posts about the group, "when the Committee does meet, hopefully its meetings will be live-streamed around the state." At this point, however, no even its agendas are available.
Courts - 9th Circuit leads the way in live video of oral arguments
Here is part of the 9th Circuit announcement:
SAN FRANCISCO – Internet users will soon have a seat in the courtroom when exceptionally important cases are argued before the United States Court of Appeals for the Ninth Circuit. The nation's busiest federal appellate court plans to provide live video streaming of its en banc proceedings, beginning with five cases (calendar and case summaries attached) scheduled for oral arguments December 9-11, 2013, in the James R. Browning U.S. Courthouse in San Francisco. Effective December 9, Internet users will find links to the video streams here or by visiting www.ca9.uscourts.gov and clicking on the link labeled “En Banc Video Streaming.” It is believed to be the first time a federal appellate court will use its technology to deliver live video of a proceeding over the Internet. Broadcast and cable news networks have previously provided live coverage of Ninth Circuit court proceedings, including Internet viewing. * * *Here is a quite nice table of the 5 oral arguements to be heard this week. The videos also will be archived for later viewing. Thanks to How Appealing, here is a link to a long story by Bill Mears at CNN on videocasting federal appeals arguments.
An en banc court is used to resolve intra-circuit conflicts of law and other legal questions considered to be of exceptional importance. On average, only about 20 cases receive en banc review each year. Rather than a three-judge appellate panel, an en banc court consists of the chief judge of the circuit and 10 judges drawn at random. En banc proceedings are held quarterly, usually in the Browning U.S. Courthouse in San Francisco and the Richard H. Chambers U.S. Court of Appeals Building in Pasadena, California. Since 2010, the court has video streamed en banc proceedings to all of its courthouses. Thus, an en banc court convened in Pasadena can be observed at the San Francisco courthouse, the William K. Nakamura U.S. Courthouse in Seattle and the Pioneer Courthouse in Portland, Oregon.
Ind. Gov't. - "Rash of homicides tests Fort Wayne's crime lab"
Rebecca S. Green had a good story in the Sunday Fort Wayne Journal Gazette looking at the nuts and bolts of the city's crime lab. A sample:
The evidence that the civilian analysts dust, heat up, steam, throw under a microscope, photograph and scan comes not only from the homicides. Crime scene management crews and officers collect it at the scenes of burglaries, robberies, vehicle break-ins and shootings.
The lab does not handle DNA evidence or firearms evaluations, such as identifying marks on shell casings. Those tasks belong to the Indiana State Police’s four forensic laboratories spread throughout the state.
It is safe to say, though, that all the other evidence collected at crime scenes, such as tire tracks, footprints, discarded firearms and fingerprints are keeping crime lab technicians plenty busy.
Ind. Decisions - Court of Appeals issues 1 today (and 9 NFP)
For publication opinions today (1):
In Lagro Township and Karen Pinkerton Tatro v. George E. Bitzer and Zelma E. Bitzer, a 10-page opinion, Judge Mathias writes:
Lagro Township (“the Township”) filed an action in Wabash Circuit Court against George E. Bitzer and Zelma E. Bitzer (“the Bitzers”) seeking to exercise control over an area of land referred to as “the Belden Cemetery,” which is located on land owned by the Bitzers. The trial court granted summary judgment in favor of the Bitzers. The Township appeals and claims that the trial court erred in granting summary judgment in favor of the Bitzers. * * *NFP civil opinions today (3):
The statute authorizing a Township Trustee to exercise control over cemeteries
located within the township is inapplicable where the cemetery is located on land on which property taxes have been paid. And here, even though there was a genuine issue of material fact with regard to whether and to what extent the dedication of the Belden Cemetery to the public was accepted by the public through usage, there is no genuine issue of material fact with regard to the Bitzers’ payment of property taxes on the land on which the Belden Cemetery is located for decades. For this reason alone, the Township’s claims of authority over the Belden Cemetery must fail. Accordingly, the trial court properly granted summary judgment in favor of the Bitzers. Affirmed.
NFP criminal opinions today (6):
Ind. Courts - Announcements: Notice of Open Bankruptcy Judge Position (Because of Judge Coachys' Retirement)
Here are the names of the current bankruptcy judges for the SD Indiana.
Ind. Decisions - Transfer list for week ending December 6, 2013 [Corrected]
[Search all the Transfer Lists: The ILB feature, "Search the ILB Transfer Lists," allows you to do just that, back to Feb. 2004. Check it out. Read the instructions. Note that the search is now current through the April 12, 2013 list.]
Here is the Clerk's transfer list for the week ending Friday, December 6, 2013. It is three pages (and 32 cases) long.
Three transfers were granted last week:
- Michael E. Lyons and Denita L. Lyons, Individually and as Co-Personal Representatives of the Estate of Megan Renee Lyons, deceased v. Richmond Community School Corp. d/b/a Richmond High School; Joe Spicer; Jeffrey Thorne and Maggie LaRue - "in their individual and official capacities" - Here is the 5/8/13 opinion, which begins:
[The Smiths appeal the trial court’s summary judgment in favor of Delta Tau Delta] with respect to claims arising from the wrongful death of Johnny Dupree Smith (Johnny), a Wabash College freshman, following acute alcohol intoxication. We affirm in part, reverse in part, and remand for further proceedingsand here is the 7/31/13 opinion on rehearing.
- Detona Sargent v. State of Indiana, and the Consolidated City of Indianapolis/Marion County, and the Indianapolis Metropolitan Police Department - In an April 8th opinion, the question involves the forfeiture of Sargent’s vehicle pursuant to Indiana Code Section 34-24-1-1(a)(1)(B). The ruling:
In sum, we hold that the State demonstrated a sufficient nexus between the underlying crime and the seized property. We also hold that neither Indiana’s statutory bankruptcy exemptions nor Article I, Section 22 of the Indiana Constitution required the trial court to exempt Sargent’s vehicle from forfeiture. Accordingly, we affirm the court’s forfeiture order.
- Keion Gaddie v. State of Indiana - This was a July 3rd COA opinion reversing the trial court:
Keion Gaddie appeals his conviction, following a bench trial, of resisting law enforcement, a Class A misdemeanor. Gaddie raises the following issue for our review: whether the evidence was insufficient to sustain his conviction because he was free to disregard law enforcement in what was a consensual encounter. Concluding that Gaddie had no duty to stop when law enforcement ordered him to do so, we reverse. * * *
Gaddie was under no duty to stop when Officer Newlin ordered him to do so. Moreover, there was no reasonable suspicion which would justify a seizure of Gaddie. Thus, his conviction for resisting law enforcement is reversed.
Ind. Gov't. - Criminal Law and Sentencing Policy Study Committee meets twice this month
Unlike the other interim legislative committees, which wrapped up their work early last month, the Criminal Law and Sentencing Policy Study Committee will be meeting tomorrow and Dec. 19. Tomorrow the agenda shows "Discussion of ARS report concerning costs of HEA 1006-2013."
According to a Sept. story by Maureen Hayden, quoted here in the ILB:
Now, two independent, state-funded studies are underway to provide more information to lawmakers as they move ahead with an ambitious effort to divert more low-level offenders out of the state’s Department of Correction and into community-based programs.
One study — being done by Georgia-based Applied Research Services [ARS] — looks at whether the state’s new felony sentencing structure will reverse the historical trend of a rising prison population, or, as some fear, escalate it dramatically.
The other study underway, done by Indiana University criminal-justice researcher Roger Jarjoura, is looking at the fractured system of local treatment programs aimed at reducing recidivism to determine their costs and benefits.
Catch-up: What did you miss over the weekend from the ILB?
From Sunday, December 8, 2013:
- Environment - This week, the SCOTUS will hear argument "on two joined cases, testing the federal government’s authority to require states to take action to prevent their air pollution from fouling the air in neighboring states"
- Ind. Gov't. - "Indiana State Police tracking cellphones — but won’t say how or why"
- Ind. Courts - "ISU students develop program to aid courts in appointing public defenders"
- Ind. Gov't. - "Editorial: Unhealthy approach to coverage"
- Ind. Courts - "Taxpayers pick up $13,519 transcript tab in McCowan murder appeal"
- Ind. Law - "‘Lawsuit loans’ face more scrutiny"
- Ind. Decisions - "Law Firms Must Return Fees Collected From Judgment That Was Later Reversed"
From Saturday, December 7, 2013:
- Ind. Courts - "A 31-year-old Rolling Prairie woman used a fake $100 bill while paying bail for a Porter County Jail"
- Ind. Gov't. - "Licensing board calls on abortion doc"
- Courts - "Federal judge criticized by Supreme Court Justice Alito fires back"
- Ind. Courts - "Judge allows vehicle’s computer data as evidence in hit-and-run fatality case"
Ind. Decisions - Upcoming oral arguments this week and next
This week's oral arguments before the Supreme Court (week of 12/9/13):
- No arguments currently scheduled.
Next week's oral arguments before the Supreme Court (week of 12/16/13):
- No arguments currently scheduled.
This week's oral arguments before the Court of Appeals (week of 12/9/13):
- No arguments currently scheduled.
Next week's oral arguments before the Court of Appeals (week of 12/16/13):
Tuesday, December 17
- 11:00 AM - Saral Reed, et al v. Richard Bethel (49A02-1301-CT-9) Sarah Reed (“Reed”) and Durham School Services, Inc. (“Durham”) (collectively, “the Defendants”) appeal the $3.9 million judgment entered against them in favor of Richard Bethel (“Bethel”) following a jury trial on Bethel’s negligence claim against the Defendants. Reed, who was driving a school bus as part of her employment with Durham to provide transportation services for Indianapolis Public School, hit seventeen (17) year old Bethel, who was riding a bicycle, as the two traveled on West Washington Street in Marion County. On appeal, the Defendants argue that they were denied a fair trial, raising numerous challenges to the admission of evidence. The Defendants also challenge the jury’s verdict as excessive. The Scheduled Panel Members are: Judges Barnes, Crone, and Pyle.
[Where: Court of Appeals Courtroom (WEBCAST)]
- 2:00 PM - Purdue University v. Michael A. Wartell (79A02-1304-PL-342) In this interlocutory appeal, appellant-defendant Purdue University appeals the order of the trial court determining that it may not assert the attorney-client privilege and the attorney work product doctrine to withhold documents and other tangibles from appellee-plaintiff Michael A. Wartell. Wartell, the Chancellor at the Fort Wayne campus of Indiana University-Purdue University, had filed a complaint against Purdue’s president. Because the complaint was to be internally investigated, a process was agreed upon, which included the use of a third-party, neutral investigator. Purdue, without information Wartell, chose its own attorney to serve in that capacity. Wartell requested the report generated from the investigation; Purdue denied Wartell’s request. Following the trial court’s order granting Wartell’s request on equitable grounds, this appeal ensues. The Scheduled Panel Members are: Judges Baker, Barnes, and Crone. [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.
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, December 08, 2013
Environment - This week, the SCOTUS will hear argument "on two joined cases, testing the federal government’s authority to require states to take action to prevent their air pollution from fouling the air in neighboring states"
Lyle Denniston of SCOTUSblog has a very lengthy argument preview on the two cases re EME Homer City Generation that have been joined and will be argued Tuesday. A sample:
Like many major regulatory disputes that reach the Supreme Court, this fight over the “good neighbor” policy on downward flow of upwind air pollution has layer upon layer of legal, scientific, economic, and mathematical complexity. The Court’s chore, though, is basically focused on just what Congress meant in 1990 when it toughened the “good neighbor” policy.
That is a task of interpreting the language of the statute, and determining whose interpretation of that should be treated as controlling. The crucial phrase that needs to be interpreted is the mandate that states may not “significantly contribute” to their neighbors’ inability to meet air quality standards. Since Congress did not define those words, the Court must initially decide whether it is the EPA’s power, in the first instance, to do so, or whether a reviewing court has a largely open-ended option of deciding what it means. And that is something that the Court probably has to do before it might move on to the merits.
If the Court were to view that mandate as the EPA does, it would see the 1990 revision as a considerable enhancement of the EPA’s authority to decide (1) whether a state plan to control downwind pollution is adequate, and, (2), if a state plan is flawed, the scope of the EPA’s duty — to require the states to revise their plans, or to devise one on its own.
If, however, the Court were to view it as the challengers to the EPA do, the phrase must not be read to disrupt the basic approach of the Clean Air Act — that is, sequential roles for the EPA, to devise air quality standards, and then for the states, having been given notice if they fall short, to draft the necessary revisions. The Act, the challengers have insisted, surely did not allow the EPA to find fault with upwind states, and then fail to let them respond before asserting a right to resolve the matter on its own, fudging each state’s responsibility.
Ind. Gov't. - "Indiana State Police tracking cellphones — but won’t say how or why"
Purchase orders or invoices for any International Mobile Subscriber Identity locator device (sometimes called an “IMSI catcher” for short). While some IMSI devices are sold under the product name StingRay or TriggerFish, this request applies to any such device the department has purchased with department funds or grant money.The State Police had responded that the records sought either did not exist or were not subject to disclosure, relying on the exception in the 2013 law.
Today on the front-page of the Indianapolis Star we see the story reporter Sabalow was working on, headed "Indiana State Police tracking cellphones — but won’t say how or why." It begins:
This year, the Indiana State Police paid $373,995 for a device that law enforcement personnel have described as a powerful tool in the fight against crime and terrorism.The Star's mothership, USA TODAY has a special multi-media report today on "NSA Phone Tracking - How Police Scoop Up Cellphone Data." From the "How we did it" section:
It could allow investigators in a surveillance vehicle to park in a crowded area and track the movements of anyone nearby with a cellphone and capture the numbers of people’s incoming and outgoing calls and text messages.
All of which concerns civil liberties and open-government groups.
They worry that the technology could be used to violate innocent Hoosiers’ constitutionally protected rights to privacy if proper checks and balances aren’t in place.
But officials at Indiana’s largest police agency aren’t saying what they do with the technology; they’re mum on whose data they’ve collected so far; and they’re not talking about what steps they take to safeguard the data.
Citing concerns that releasing any information would endanger public safety by hindering the agency’s ability to fight crime and combat terrorism, they won’t even say whether they ask a judge for a search warrant before they turn the equipment on. * * *
While most Americans have paid little thought to the fact that their smartphone is a mobile tracking device that broadcasts their location and data about who they’re calling and texting, local police agencies have taken sharp notice.
At least 25 police agencies around the country, including the Indiana State Police, have contracts with Harris Corp., of Melbourne, Fla., for devices called Stingrays, according to public records requests filed this fall with 115 police agencies by the Indianapolis Star, USA Today and other media outlets owned by Gannett.
Often installed in a surveillance vehicle, the suitcase-size Stingrays trick all cellphones in a set distance — sometimes exceeding a mile, depending on the terrain and antennas — into connecting to it as if it were a real cellphone tower. That allows police agencies to capture location data and numbers dialed for calls and text messages from thousands of people at a time.
Local and state police often buy the devices with federal grants aimed at protecting cities from terror attacks, and the devices, originally developed for military and spy agencies, are closely guarded secrets. * * *
The Indiana State Police paid Harris $373,995 this spring for a Stingray, but police officials were reluctant to share even that information.
State Police officials initially refused to provide any records related to the agency’s contract with Harris or grants they obtained.
After The Star appealed the denial to the Indiana Public Access Counselor, the state’s arbiter of public records disputes, the agency provided a one-page purchase order, which provided no clues to how the device works or how and when it may be used.
To receive more information, Public Access Counselor Luke Britt said, The Star would have to sue the State Police to see if a judge agreed with police that releasing the complete contract would constitute a public safety threat and harm the agency’s ability to investigate terrorists. * * *
USA Today and The Star also sought records about what are known as “tower dumps,” in which police seek court orders requiring cellphone companies to provide investigators with massive amounts of phone data.
State Police officials said they had no such records when The Star asked for any records that might shed light on how many times detectives used such methods.
But officials said they wouldn’t have shared the documents if they did keep them, citing a provision in Indiana’s records law that gives police agencies discretion to withhold all investigatory files. * * *
What most troubles civil liberties groups about Stingrays and tower dumps is that elsewhere in the country, cellphone data often can be obtained with a simple court order — and not a search warrant.
But it’s unclear whether the same standard applies in Indiana because local officials wouldn’t discuss the matter.
Court orders generally only require detectives to show that the data collected would aid in an investigation, a standard that’s much easier to meet than what’s required for a search warrant, in which detectives and prosecutors must demonstrate to a judge probable cause, a legal term meaning there is belief a crime occurred.
Kenneth Falk, legal director of the ACLU of Indiana, said the mass collection of cellphone information raises serious and troubling Fourth Amendment questions. The amendment protects citizens’ rights to privacy and to be free from government officials searching their homes and other property without probable cause.
He said police should at least be required to have a judge sign a search warrant before getting access to the phone data from potentially hundreds or even thousands of innocent Hoosiers.
Lanosga of the Coalition for Open Government said Indiana police agencies have an obligation to publicly address privacy concerns and explain what checks and balances are in place to protect the data collected.
Both Lanosga and Falk said they didn’t want to deny law enforcement the ability of using whatever technology is needed to fight crime and head off terror. But not without limits.
“What sort of reassurances can the agency make to those people their data is being destroyed, not maintained indefinitely, not abused for any purpose?” Lanosga said. “I think there are a lot of serious questions about that that demand the agency publicly address what it’s doing with these types of techniques and equipment.”
But that’s not happening.
“Maybe,” Lanosga said, “the legislature can intervene and get some answers.”
This story is a collaborative effort of USA TODAY and Gannett newspapers and TV stations across the country.Eleven local papers' stories are linked, including the Star story.
More than 50 investigative journalists requested public records from local and state police agencies in their communities, seeking records that might shed light on capabilities of civilian police to gather data from people's cellphones.
Records obtained from police agencies, as well as additional records from online databases of contracts and government proceedings, were gathered to paint a broad picture of the state of cellphone surveillance by police. Many agencies denied records requests.
Gannett newspapers and TV stations are reporting additional details about local agencies.
See this interactive graphic titled "How Stingray Works."
Ind. Courts - "ISU students develop program to aid courts in appointing public defenders"
That is the heading to this Nov. 26th news release from Indiana State University. Some quotes:
In Indiana, there is no standard system for determining whether people facing criminal charges are eligible for a public defender in the court of law.
Indiana State University students majoring in criminology and political science have spent the past several months working to help solve that problem.
With a grant from the Indiana Criminal Justice Association, the students have created a pilot screening system to help guide Vigo County judges in appointing public defenders. They began the project in May and will have all of their analysis finished by Dec. 31.
"Prior to this study, each court used a different method for evaluating a defendant for a public defender," Jordan Isaacs, a criminology graduate student from Terre Haute, said. "The system we created works to establish a uniform and efficient structure that asks the same questions for every Vigo County defendant."
Through an interview process, the students asked defendants a standardized set of questions about income, family status, employment and whether they receive public assistance. Based on that information, they made a recommendation to the judge about whether that individual should receive a public defender.
"We got it started from the bottom-up because how do you declare indigence on someone?" Isaacs said. "That's one of the first questions that I didn't know... but I've definitely learned a lot along the way."
Students modeled their screening system after one used in King County, Wash. They then tailored the system to the specific needs of Indiana and Vigo County based on statewide public assistance programs. * * *
The students also sent surveys to the other 91 counties in Indiana to ask about their current methods for determining eligibility for public defenders. Combining the data from the surveys and questions that have to be legally asked, the students want to create a standardized screening instrument that can be used state-wide by all county court systems.
Gretchen Etling, chief public defender for Vigo County, initiated the grant and subcontracted the project and evaluation to Indiana State's department of criminology and criminal justice.
"This is something that Indiana Public Defenders Association wants to install in every Indiana county... [a] uniform system where they can measure indigency," Isaacs said.
Although the students made recommendations to the judge about an individual's eligibility based on their interview, it was ultimately the judge's decision whether a public defender was provided.
Ind. Gov't. - "Editorial: Unhealthy approach to coverage"
Even as Indiana opponents of Obamacare shed crocodile tears for the few who may be forced to upgrade substandard medical insurance plans, they push ahead with a plan guaranteeing that thousands of Hoosiers will be left with no medical coverage at all.
The estimated 182,000 Hoosiers who will be shut out because the state declined the option of expanding Medicaid are, in sense, just collateral damage in an ideological battle.
The Pence administration, you see, wants to preserve the Healthy Indiana Plan, which requires that patients buy into their own coverage and, the theory goes, encourages them to use their health care prudently.
But HIP, which seemed a good idea when it began in 2008, has never lived up to expectations and today is decidedly unhealthy.
The plan was to help as many as 130,000 non-Medicaid-covered poor Hoosiers get access to health care. The program, though, “never broke 50,000” and now is at about 31,000, according to Erik Gonzalez, a financial analyst for the Indiana House’s Democrats.
About 11,000 of those enrollees will be knocked off the plan next month by the terms of the one-year extension Indiana received from the federal government for the program. Christy Denault, press secretary for Gov. Mike Pence, said the net effect of restructuring will be to insure 20,000 Hoosiers who are not now insured by Jan. 1.
But that could leave thousands upon thousands of Hoosiers who could have been insured, not insured.
This is not just a battle of hidebound ideology vs. compassion.
It is a matter of dollars and cents and economic growth.
Ind. Courts - "Taxpayers pick up $13,519 tab in McCowan murder appeal"
Bob Kasarda reports today in the NWI Times in a story that begins:
VALPARAISO | A private attorney was hired to file an appeal on behalf of convicted murderer Dustin McCowan, but not before taxpayers picked up the $13,519 bill for the lengthy court transcripts used in the challenge.More from the story:
The 3,186 pages of transcripts were completed Aug. 19 at the request of his public defender. But private defense attorney Thomas Vanes entered the case 11 days later, according to the online docket of the Indiana Court of Appeals.
McCowan had been represented by a public defender after it was determined at the time of his sentencing in March that he did not have the resources to hire a private attorney. The county-funded legal services included copies of the transcripts, which are the most expensive the court has seen.
There does not appear to be any wrongdoing in the decision to hire a private attorney after receiving the publicly funded transcripts since 21-year-old McCowan has retained his pauper status while just starting out on his 60-year prison sentence.
McCowan, who has maintained his innocence, is seeking a new trial or sentencing before a new judge in part, by challenging the technique used by investigators to place his cellphone at or near key locations at the time of the crime, according to the appellate brief filed by Vanes.ILB readers may recall this post from Nov. 10th of this year, where a criminal defense attorney successfully appealed to the COA "to find her client indigent, so that he can obtain a copy of the trial transcript free of charge."
The technique did not involve GPS technology, but rather a new system Verizon had in place at the time, Vanes said.
"Verizon itself could not and would not vouch for its reliability," he argued.
The appeal also claims it was improper to introduce the cellphone records because it violated a state constitutional prohibition against unreasonable search and seizure. Police obtained the phone records with an emergency request and yet should have had a warrant, according to the appeal.
Ind. Law - "‘Lawsuit loans’ face more scrutiny"
Niki Kelly reports today in the Fort Wayne Journal Gazette:
Indiana lawmakers are eyeing a growing industry that advances money to plaintiffs waiting for a lawsuit settlement, sometimes at a high cost.There is much more to read in this lengthy story.
Indiana currently has no regulations for so-called lawsuit lending. Rep. Matt Lehman, R-Berne, pushed a bill last year to impose some restrictions, but it failed under lobbying pressure by the industry.
He is trying a new tack in 2014, bolstered by the Indiana Chamber of Commerce tapping it as a top legislative priority.
“There is probably a necessity for this industry. People need to pay bills. At the same time, there is desperation here and consumers are making bad choices,” he said. “A 100 percent return is ridiculous. We don’t want to stop free-market enterprise, but when you begin to take advantage, we need to step in.”
He said he considers the practice predatory lending, though some don’t agree with him.
As chair of the House Insurance Committee, the issue came to Lehman’s attention because the cases usually involve insurance settlements. For instance, someone is injured in a car accident and sues. But in the meantime, that person needs need cash to pay rent because he or she can’t work.
So the person goes to a third-party company that reviews the case and agrees to advance money that will be repaid – with additional fees – when a settlement is reached.
Most of these companies are nationwide, and the industry has been around for 10 or 15 years.
Lehman said no states have banned the practice. And he is focused on regulations, starting with having companies register with the state.
Ind. Decisions - "Law Firms Must Return Fees Collected From Judgment That Was Later Reversed"
The Indiana Court of Appeals' Nov. 7th opinion in the case of Minott v. Lee Alan Bryant Health Care Facilities, Inc. was the subject of a Bloomberg/BNA story Nov. 19th by Samson Habte. A quote from the long story:
The key issue on appeal, [Chief Judge] Robb said, “is whether the Law Firms were judgment creditors or merely entities which received payment from a judgment creditor (the Providers) for services rendered.”
Under the circumstances here, the court concluded, the law firms “were judgment creditors or their lawful equivalent and are therefore liable for restitution.”
The court pointed to a Black's Law Dictionary entry defining a “judgment creditor” as a “person in whose favor a money judgment is entered or a person who becomes entitled to enforce it.”
“Liens filed against the Providers' judgment entitled the Law Firms to the judgment proceeds,” Robb explained. Noting that “an attorney's lien take[s] priority over the rights of other creditors, including the judgment creditor,” she added: “If the [law firms'] rights to the judgment were greater even than the Providers' rights, we see no logical reason to treat them differently for the purposes of restitution.”
Saturday, December 07, 2013
Ind. Courts - "A 31-year-old Rolling Prairie woman used a fake $100 bill while paying bail for a Porter County Jail"
From the story by Erin Guerra in the Gary Post-Tribune:
The counterfeit was discovered Wednesday and the woman was asked to bring in another $100 to replace it.
“There’s some obvious irony there,” said Porter County Sheriff David Lain, calling counterfeit bills “a pervasive threat in all forms of commerce.” * * *
Lain said he believes the woman who passed the bill at the jail is an entirely innocent victim.
The day after the sheriff’s department called her about the fake bill, she returned to the jail to replace it. When she did, she reported that one of the $100s she used for the bail had come from a Toys R Us store in South Bend, and four of the $100 bills had come directly from a bank. The rest of the $1,000 bail was in smaller bills.
Ind. Gov't. - "Licensing board calls on abortion doc"
Niki Kelly reports in the Fort Wayne Journal Gazette in a story that begins:
INDIANAPOLIS – The doctor who performs abortions in Fort Wayne and two other cities has been asked to appear before the Indiana Medical Licensing Board.
Dr. Ulrich “George” Klopfer is still “valid to practice while reviewed,” according to state records.
Sue Swayze, communications director for the Indiana Professional Licensing Agency, said the medical licensing board requested a personal appearance by Klopfer after seeing information in the media about not properly filing reports.
Klopfer filed for license renewal under the usual process in October.
“The board has reached out to him and said, ‘You are valid, but before you renew we want you to come talk to us,’ ” Swayze said. “It’s not very often that the board does this.”
Swayze used to be the legislative director for Indiana Right to Life, and recently moved to state employment. She said she was not involved in bringing Klopfer’s case to the board’s attention.
Courts - "Federal judge criticized by Supreme Court Justice Alito fires back"
Interesting story via Reuters, re diversity among counsel in class action certification.
Ind. Courts - "Judge allows vehicle’s computer data as evidence in hit-and-run fatality case"
Ruth Ann Krause reports in this morning's Gary Post-Tribune:
Attorneys representing a Lakes of the Four Seasons man on trial in a fatal hit-and-run crash asked the judge to suppress information police investigators retrieved that showed the speed the man was traveling at impact.
Defense attorney Paul Stracci argued that defendant Jason Cozmanoff and his father (who owned the vehicle in question) had granted only limited consent to police to search his vehicle. That consent, Stracci said, did not include allowing police to retrieve computer data stored in the 2002 GMC Yukon, which police retrieved from the elder Cozmanoff’s garage.
“He was not consenting to anything beyond that,” Stracci said.
Lake Superior Court Judge Salvador Vasquez denied the request to suppress, saying the consent was “broad enough to give law enforcement access to every part of that vehicle.” * * *
Lake County police Lt. Steven Trajkovich said he retrieved data three days after the crash from the airbag control module, which stores information on the throttle position, vehicle speed and whether seat belts were in use both before and after air bags are deployed.
Five seconds before impact, the Yukon was at 100 percent throttle, going 78 mph; a second before impact, the speed was 65 mph.
Friday, December 06, 2013
Ind. Gov't. - More on "Four Hoosiers filed suit Wednesday over an alleged Open Door violation by the Indiana State Board of Education"
Following up on the story yesterday by its reporter, Niki Kelly, the Fort Wayne Journal Gazette today has a long editorial, headed "Suing for clarity on education." Some quotes:
Lawsuits targeting publicly financed agencies are never welcome, but Hoosiers need the legal analysis demanded by four public education advocates. In challenging actions taken by the State Board of Education, their suit will clarify the authority of public boards and commissions to operate outside public view.
The Indiana Public Access Counselor could have settled the question in his ruling on the open meetings law complaint filed by Julie Hollingsworth, a member of the Fort Wayne Community Schools board, and three other public school advocates. But Luke Britt, appointed by Gov. Mike Pence, took a pass on issuing a clear message on the law. He opted instead to recommend that the General Assembly clarify the law.
The governor and his education administration surely would prefer that the law’s fate rest with the GOP-controlled legislature, but Hoosiers deserve a ruling free of partisanship.
Superintendent of Public Instruction Glenda Ritz, a Democrat, earlier filed a lawsuit alleging the State Board of Education’s actions in “meeting” by email were illegal. Her lawsuit was dismissed not because it lacked merit but because the judge ruled she did not have authority to file suit without Republican Attorney General Greg Zoeller’s representation, or his permission to retain other attorneys. The same restrictions don’t apply to Hollingsworth and the three other plaintiffs, Bloomington parent Cathy Fuentes-Rohwer and former school superintendents Ed Eiler and Tony Lux.
While Zoeller has championed other public-access issues and occasionally avoided partisan battles, his unwillingness to resolve the questions involved contributes to the confusion and uncertainty regarding school policy.
Zoeller’s and Britt’s refusal to step up for open government leaves a gaping hole that can be closed only with a judicial ruling.
Ind. Decisions - Court of Appeals issues 2 today (and 1 NFP)
For publication opinions today (2):
In Everett Sweet v. State of Indiana, an 8-page opinion, Judge Najam writes:
In August of 2009, Everett Sweet pleaded guilty to dealing in methamphetamine, as a Class B felony, after he had been fully advised of his rights and he had agreed with the State’s factual basis underlying the allegation against him. In April of 2010, Sweet filed a petition for post-conviction relief in which he sought to have his conviction overturned on the theory that he had received ineffective assistance of counsel in a pretrial evidentiary hearing on a motion to suppress the State’s evidence. Had he not received ineffective counsel on his motion to suppress, Sweet contends, the State’s evidence against him would have been suppressed and he would not have pleaded guilty. This is not a permissible basis to collaterally attack a guilty plea in Indiana. We therefore affirm the post-conviction court’s denial of Sweet’s pro se petition for post-conviction relief.In Michelle Orr Carpenter v. State of Indiana, a 7-page opinion, Judge Najam writes:
Michelle Orr Carpenter appeals the trial court’s revocation of her probation. Carpenter raises a single issue for our review, namely, whether the State presented sufficient evidence to demonstrate that she committed the alleged probation violation during the term of her probation. We reverse. * * *NFP civil opinions today (0):
The State failed to present any evidence to demonstrate that Carpenter violated the terms of her probation by using phenobarbital during her probationary period. Even when viewed most favorably to the State, the evidence here was in equipoise, and it was no more likely that Carpenter ingested phenobarbital during her probationary period than it was that she ingested it before her probationary period. Accordingly, we must reverse the trial court’s decision to revoke Carpenter’s probation.
NFP criminal opinions today (0):
Ind. Courts - Marion County attorney ID cards
In case you were overlooked, the ILB, along with most Marion County attorneys, has now received this notice:
12/6/2013Re the applicable policies:
RE: Marion Superior Court - New Attorney ID Card Process
As you may be aware the renewal period for the Marion Superior Court issued Attorney ID Card for access to the City-County Building will begin on January 1st, 2014. The Marion Superior Court is eager to inform you of the new online application to apply for and/or renew your Attorney ID Card.
Information on the Attorney ID Card policy is available at http://www.indy.gov/AttorneyId
Beginning December 20th, 2013 you will be able to visit https://www.biz.indygov.org/attorneycards/ and apply for the new card online. The cost of the card is $35.00 and can be paid by credit card or electronic check.
The approval and issuance of an Attorney Identification Card (“I.D. Card”), is a privilege extended by order of the Circuit and Superior Courts (Court).
All attorneys granted this privilege accept the privilege subject to any and all terms and conditions set forth by the Court. These conditions include an Agreement by the attorney that he or she will not bring firearms, knives, or any other weapons or contraband into the City-County Building; that the I.D. Card is issued for the exclusive personal use of the authorized attorney, and is not to be loaned out to other persons; and that the I.D. Card will be used in accordance with the Rules of Professional Responsibility and the attorney’s responsibilities as an officer of the court.
The issuance of an I.D. Card may be revoked at any time at the sole discretion of the Court Administrator pursuant to the directives of the Court. The cost of an Attorney ID Card is $35.00.
Thursday, December 05, 2013
Ind. Gov't. - Some additions to the Indiana Constitution: Documentary History, and a Request [Updated]
Some additions to the new ILB feature, "INDIANA CONSTITUTIONAL REVISION IN THE 1960s and 70s, A DOCUMENTARY HISTORY."
First, I've created a new blog category, "Indiana Const. Revision," so that one may easily locate a list of all the posts on the topic.
Second, I've added a quick link to the Indiana Constitutional Documentary History in the right-hand column, near the bottom, below "Indiana Constitution 2010."
Next, thanks to Laura Bartlett, longtime House Journal Clerk, who staffed the Constitutional Revision Commission from 1969-1972, I've been able to add Gov. Whitcomb's veto message, mentioned under "Interim Committee Report of the Constitutional Revision Commission, 1970." I've included details of how she found it for future researchers:
Marcia, I found the veto message, quite by accident, I admit. I was looking at 1971 roll calls and noticed that most did not tell what type of action (3rd reading, amendment) the roll call was on. I paged back a bit and there were votes on the 1969 vetoes (with the action typed on manually). The veto message (page 116 of the Journal) just says that the legislature did not provide funding so the Governor vetoed the 1969 act. The veto was sustained by a vote of 1-94, presumably because the Council had already re-created the Commission under its own powers rather than a separate statute. FYI, those old journals have a miscellaneous index (at the very back of the volume) which cover unusual things like vetoes from a prior session. I've scanned page 116, the roll call, and the page of the miscellaneous index containing veto messages.The Supreme Court librarians have made copies of some of the State Library index cards for “veto” and “Constitution” which are a resource for locating old newspaper articles and might be useful for a future project. Did you know, for example, that Gov. Whitcomb vetoed 58 bills in 1969, "topping known records"?
They also copied from the microfilm one article, “1st meeting in nearly two years was held of the Constitutional Revision Commission” written by Hortense Meyers for the Indianapolis News, 3/14/72, p. 15. It can't be OCRed, but it is readable, and is fascinating. At some point I will transcribe it.
Finally, the request. The first item listed under the 1966 Report of the Judicial Study Commission is:
The 1965 General Assembly voted for the statute creating the Commission by an overwhelming majority. After a six-month delay caused by litigation, the Commission began work on December 9, 1965.Can anyone help with finding out more about this litigation?
[Updated] The ILB now has details on "the Kriner case," and hopes to write them up this weekend.
Ind. Decisions - Court of Appeals issues 3 today (and 2 NFP)
For publication opinions today (3):
In William Klepper, on behalf of himself and all others similarly situated v. Ace American Insurance Company, a 26-page, 2-1 opinion, Judge Bailey writes:
William Klepper, on behalf of himself and all others similarly situated (“the Class”), appeals the trial court’s order adopting the special master’s reports and entering partial final judgment in favor of ACE American Insurance, Inc., (“ACE”). ACE cross-appeals, challenging the special master’s resolution of some of the issues and the entry of partial final judgment. This case also involves Pernod Ricard USA, LLC, d/b/a Seagram Lawrenceburg Distillery (“Pernod”), who was insured by ACE and XL Insurance America (“XL”). We affirm.In Old National Bancorp d/b/a Old National Trust Company, as Trustee of the Percy E. Goodrich Trust and the Hanover College Trust v. Hanover College, a 7-page opinion, Sr. Judge Darden writes:
The Class and ACE raise several issues. We address the following dispositive issues:
I. whether the special master properly concluded that ACE was not bound by a settlement agreement between the Class, Pernod, and XL because Pernod breached its obligations under the ACE policy; and
II. whether ACE is entitled to final judgment on all outstanding claims. * * *
Conclusion. Because the “voluntary payment” and “legally obligated to pay” provisions preclude coverage, the trial court properly entered partial judgment in favor of ACE on this issue. Regarding the entry of final judgment on all claims, because of the distinct legal theories at play, the entry of final judgment in favor of ACE on the Class’s bad faith claim would be premature at the this stage of the proceedings. We affirm.
PYLE, J., concurs.
CRONE, J., concurs in part and dissents in part. [in an opinion which begins, at p. 25] I agree with the majority’s determination that ACE did not abandon Pernod or breach the Policy. I also agree that entry of final judgment on the Class’s bad-faith claim would be premature. I respectfully disagree, however, with the majority’s determination that ACE may avoid the settlement agreement based on the Policy’s “voluntary payment” and “legally obligated to pay” provisions. An insurer who defends an insured under a reservation of rights should not be able to use those policy provisions as both a shield and a sword.
Old National Trust Company (“Old National”) served as the trustee for both the Percy E. Goodrich Trust and the Hanover College Trust. In 2012, Hanover College petitioned the trial court to terminate both trusts. Following a hearing, the trial court entered judgments terminating both trusts and ordering the transfer of the trusts’ assets to Hanover College.In Katherine Ryan v. Larry Janovsky, an 11-page opinion, Chief Judge Robb writes:
Old National, as Trustee, brought separate appeals from the trial court’s orders terminating both trusts. The two appeals were consolidated into one, and Hanover College filed a motion to dismiss the appeal alleging that Old National lacked standing. As this issue is dispositive, we need not and cannot consider the appeal on its merits, and, therefore, we dismiss. * * *
For the reasons stated, we are without jurisdiction to consider this appeal on the merits, and we dismiss.
The marriage of Katherine Ryan and Larry Janovsky was dissolved in 1991 pursuant to a settlement agreement that included a provision dividing Janovsky’s pension. Over twenty years later, Ryan presented a proposed Qualified Domestic Relations Order (“QDRO”) for Janovsky’s signature. Janovsky refused to sign, and Ryan filed a Verified Petition for Contempt and Rule to Show Cause, alleging Janovsky was in contempt of the parties’ settlement agreement for failing to sign the QDRO. Ryan appeals the trial court’s denial of her petition, raising one issue for our review: whether the trial court abused its discretion in finding her efforts to secure a QDRO were barred by the statute of limitations and the equitable doctrines of laches and waiver. Concluding the entry of a QDRO is not time-barred, we reverse and remand.NFP civil opinions today (0):
NFP criminal opinions today (2):
Ind. Gov't. - Is a computer a "public record"?
See this interesting Nov. 27th opinion from the state Public Access Counselor, Luke Britt, wherein he responds to the questions:
- Is a computer and/or its hard drive and/or data storage medium, containing data, which consists of public records stored on that computer, etc., stored thereon as a result of City officials acting in the course of their office duties, in its physical self a public record;
- Is a web page, created by a City or its agent, posted and accessible to the public online, itself a public record;
- Did the City of Jasper, IN, violate the Access to Public Records Act when it destroyed the computer used by its ex-mayor Schmitt;
- Did the City of Jasper, IN, violate the Access to Public Records Act when it destroyed, apparently, numerous [amounts of content] of its formerly extant web pages?
Ind. Gov't. - "Four Hoosiers filed suit Wednesday over an alleged Open Door violation by the Indiana State Board of Education"
The group narrowly lost a ruling on the issue by the Indiana public access counselor, and now is taking the case to a judge. * * *ILB: A copy of the complaint may be added shortly.
Superintendent of Public Instruction Glenda Ritz initially filed the same case but it was dismissed on a legal technicality and a court did not rule on the suit’s merits.
The lawsuit centers on a letter the State Board of Education sent in October asking legislative leaders to intervene in a dispute over issuing A-F school accountability grades.
The letter was not discussed in an open meeting of the board. It was drafted by staff of the administratively created Center for Education and Career Innovation and emailed around.
All members of the board – except Ritz – signed on. She was not included in the email chain as chair of the panel.
The lawsuit alleges that the letter constituted “official action” by the board and was done outside of an open meeting with notice to the public.
“The aforementioned actions, as well as other actions that may subsequently come to light through discovery, violated both the letter and the spirit of the (Open Door Law),” the suit said.
Here it is, the 15-page complaint (including exhibits), filed in Marion Superior Court. Judge Ayers will be presiding.
Wednesday, December 04, 2013
Ind. Gov't. - "State appeals order that strips Indiana of $63 million in tobacco payments"
Indiana is appealing a federal ruling that reduces by $62.8 million the amount tobacco companies were due to pay the state in 2014 to compensate for smoking-related illnesses.The ILB wrote quite a bit about this issue in October. This Oct. 17th post gives the background. The follow-up post, from Oct. 21st, links to the arbitrators' award document, and focuses on both the determination of diligent enforcement, and the roles played by former-Attorney General Carter.
Attorney General Greg Zoeller asked a Marion County court on Wednesday to vacate a ruling by an arbitration panel relating to the financial fallout from the 1998 nationwide tobacco settlement. * * *
Zoeller ... contends in a motion filed in Marion County Superior Court, which has jurisdiction over the settlement in Indiana, that the panel exceeded its authority under law and the process it used to determine payments was unfair to Indiana.
He said the panel used a new legal definition of what is considered “diligent enforcement” that it created after the fact and imposed retroactively. He contends 20 other states that settled, rather than continue the arbitration process, were not held to the newly created enforcement standard that Indiana and five other states were held to by the panel. * * *
When the ruling was issued, state Reps. Gregory Porter, D-Indianapolis, and Charlie Brown, D-Gary, voiced concerns about what they called the state’s lack of adequate action to secure the funds.
Brown said Indiana didn’t try hard enough to make tobacco companies that didn’t sign the agreement to make payments into an escrow fund if they do business here.
A hearing date has not been scheduled yet on the state’s motion to vacate the ruling.
Ind. Decisions - More on "Paul Gingerich gains chance for freedom after boyhood in prison"
An editorial today in the Fort Wayne Journal Gazette, titled "Justice – delayed: 12-year-old’s adult sentencing leads to new law," concludes:
Late last year, the Indiana Court of Appeals ruled that there had been, in effect, a rush to judgment. It threw out Gingerich’s guilty plea and the legal process started all over again.
Meanwhile, the Indiana Legislature passed a law aimed directly at the problem presented by Gingerich’s case. The measure allows adult courts to pronounce a “blended sentence” on a youthful offender like Gingerich whose crimes may be beyond the scope of juvenile court.
Monday, Gingerich agreed to have his case waived to adult court and again pleaded guilty. This time, although Gingerich will still face court supervision for 25 years, the court will have the option of keeping Gingerich in Pendleton and allowing him to pursue his education. He will be re-evaluated periodically and might end up in a group home, in community corrections, or even on probation if his behavior and rehabilitation continue apace.
“His case sparked the writing of the law,” the author of the new law, Wendy McNamara, R-Evansville, said. “If you’re going to place someone in a prison, eventually you’re going to have to let them out.” McNamara, director of the Early College High School in Evansville, says it’s clear that young offenders placed alongside adult prisoners will become hardened criminals by the time they’re released.
Now, judges have options to ensure that young defendants get counseling, treatment and educational opportunities, while the need to deliver sentences and give victims and their families a sense of justice can be met as well.
The bill took two years to get through the legislature, McNamara said, after a lot of advocacy on both sides. “It’s a huge change in the criminal justice system.”
A senseless, horrific crime initially brought a hasty and ill-considered judicial response. Now, all sides seem to agree that justice has been done. Score one for the Indiana Legislature and child advocates like Rep. McNamara.
Ind. Courts - More on: No decision yet by the Special Masters in the Judge Kimberly Brown disciplinary hearing
Updating earlier ILB entries, the docket in the Judge Kimberly Brown case today shows these new entries:
12-02-2013 THE MASTERS, HAVING CONSIDERED THE MATTER, NOW GRANT THE HONORABLE KIMBERLY J. BROWN'S REQUEST FOR EXTENSION OF TIME TO SUBMIT "PROPOSED FINDINGS OF FACT AND CONCLUSIONS OF LAW TO NOON ON DECEMBER 2, 2013."The extension request by Judge Brown for the submission of findings on her behalf was made on Nov. 25. There is no entry yet showing that Judge Brown's proposed findings have been received.
HON. VIOLA J. TALIAFERRO, PRESIDING MASTER
ENTERED ON 12/03/13 KF
Ind. Courts - More on: Nominations open for the 2nd District attorney member of the Judicial Nominating Commission [Updated]
Updating this ILB entry from August 5th, the results are now in. Lee Christie has defeated Jan Carroll for the position. From an announcement yesterday afternoon from the Supreme Court's public information officer:
Lee Christie has been elected to serve as the Indiana Judicial Nominating Commission district two representative. Mr. Christie was elected by attorneys to fill the vacancy that will occur Dec. 31st when attorney William Winingham’s term expires.[Updated 12/10/13] - The ILB has now obtained a copy of the certified results of the 2013 JNC District 2 election.
District 2 is made up of Adams, Blackford, Carroll, Cass, Clinton, Delaware, Grant, Hamilton, Howard, Huntington, Jay, Madison, Marion, Miami, Tippecanoe, Tipton, Wabash, Wells and White Counties. More than seven thousand ballots were sent to attorneys eligible to vote in district two. The Clerk of the Indiana Supreme Court collected the ballots and certified Lee Christie garnered 1435 votes and Jan Carroll garnered 1159 votes.
Ind. Law - More on "ALEC facing funding crisis from donor exodus in wake of Trayvon Martin row"
Updating this ILB post from this morning, quoting The Guardian, one of the items linked in that story is headed "Internal documents reveal so-called 'Prodigal Son Project.'" It is a 501(c)(4) named "The Jefferson Project," the purpose of which is explained in a memo on p. 15 of this linked document.
Ind. Decisions - Court of Appeals issues 1 today (and 2 NFP)
For publication opinions today (1):
In Rick Deeter v. Indiana Farmers Mutual Insurance Company, a 6-page opinion, Judge Baker writes:
Appellant-plaintiff Rick Deeter appeals the trial court’s grant of summary judgment in favor of appellee-defendant Indiana Farmers Mutual Insurance Company (Farmers) regarding his claim for insurance proceeds against Farmers. In particular, Rick asserts that Farmers failed to craft a clear and unambiguous insurance policy and thus improperly denied his claim based on the intentional loss exclusion in the policy for his home. Rick also argues that he is an “innocent co-insured spouse” and contends that the fact that Callie Deeter, his wife, is guilty of causing an intentional loss should not bar him from recovery. Thus, Rick argues that a genuine issue of material fact remains as to whether or not Farmers could refuse his claim under the insurance policy exclusion. Concluding that the trial court properly entered summary judgment for Farmers, we affirm the judgment of the trial court.NFP civil opinions today (1):
NFP criminal opinions today (1):
Ind. Decisions - More on "Federal judge blocks chemical abortion law that targeted Planned Parenthood clinic in Lafayette"
CHICAGO — An appellate court on Tuesday questioned a lawyer for the state of Wisconsin about why lawmakers singled out abortion clinics in requiring their doctors to have admitting privileges at nearby hospitals, as judges heard arguments about the hotly debated law.ILB: The admission privleges requirement in the Wisconsin law is similar to the requirement in an Indiana law passed in 2011, HEA 1210. See this May 29, 2013 ILB post for more.
The sometimes-contentious, hourlong hearing before the 7th Circuit Court of Appeals was meant to help a three-judge panel decide whether to lift a temporary block on the law imposed by a lower court.
Such laws in Wisconsin, as well as similar laws in Texas and other states, have recently become a focus of debate over abortion. Critics say they're designed to stymie abortion rights, while supporters say the laws protect women's health.
Judges often play devil's advocate during oral arguments, so questions they pose aren't always an indication of which way they are leaning. But the three judges in Chicago, led by Judge Richard Posner, were especially aggressive in their questioning of Daniel Lennington, Wisconsin's assistant attorney general.
At times appearing exasperated, Posner repeatedly interrupted Lennington, asking why lawmakers — if it's true they saw the law as primarily a public health measure and not an anti-abortion bill — focused on abortion clinics and not other outpatient clinics, such as those performing laparoscopic surgeries.
"Why did they start with abortion clinics? Because it begins with the letter 'A'?" Posner asked. * * *
Despite Flaxman's comment that the number of impacted doctors is unclear, opponents of the law have long argued that it will force a Planned Parenthood clinic in Appleton and an AMS clinic in Milwaukee to close because abortion providers at both facilities lack admitting privileges.
Ind. Law - The Indiana POST Program: Physician orders for scope of treatment
HEA 1182 passed this year and took effect July 1, 2013. The ILB just learned of it yesterday via this column in the Fort Wayne Journal Gazette by Abraham Schwab, a medical ethicist and associate professor of philosophy at IPFW. A quote from the column:
As of July 1, there’s a new kind of medical order in Indiana .... Specifically, it’s for three types of seriously ill patients: those with advanced chronic progressive illness, with advanced chronic progressive frailty, or with terminal conditions. The POST (Physician Order for Scope of Treatment) form is a new kind of medical order that identifies the patient’s preferences for the scope of their medical care and gives it the weight of a medical order.The POST website contains a video, the form, and much more information. The introduction:
There are a few key facts you should know about the POST form. First, no one can force a patient to have a POST form – to be valid, it must be signed by the patient (or their legally appointed decision-maker). Second, it’s only for certain patients (see above). Third, it has to be signed by a physician. Both signatures should be preceded by a discussion of the patient’s medical condition and the likely outcomes of various levels or types of intervention. There is far more to know about POST – visit www.indianapost.org to find out.
The Indiana POST Program is a new advance care planning tool that helps ensure treatment preferences are honored. It is designed for patients with serious illness. Preferences for life sustaining treatments including resuscitation, medical interventions (e.g., comfort care, hospitalization, intubation, mechanical ventilation), antibiotics, and artificial nutrition are documented as medical orders on the POST form. It must be reviewed and signed by a physician to be activated. This form transfers throughout the health care system and the orders are valid in all settings.
Courts - "Gary angler takes fishing fight to the feds"
Great story in the Dec. 1st NWI Times, with photo, reported by Lauri Harvey Keagle. It begins:
Silas Sconiers and Stacey Clayton just want to spend their retirement fishing.More from the story:
But for the men, who live in Gary and Griffith just a short distance from Lake Michigan, a fishing trip means driving to East Chicago or Portage.
"Why should I have to leave the city and spend my money when I'm on a fixed income?" Sconiers said. "I've been told I can to go Portage or Hobart, but I feel insulted by that."
Gary has the largest stretch of Lake Michigan shoreline in the region, but has no public fishing spot on the lakeshore.
Sconiers filed a civil rights complaint with the Department of the Interior against Gary early this year.
He is alleging Gary lacks recreational services afforded to other cities with majority white populations; that funding is being denied based on race and that the Marquette Plan and the Lake Michigan Coastal Plan do not provide equal opportunities for fishing in minority areas that are provided in nonminority areas.
"I came from Chicago, an African-American community, and with all their problems, access isn't one of them but you come here to a similar city under African-American control and we have no access here at all to this wonderful resource," Clayton said.
Sconiers and Clayton could legally wade into the lake to fish, but neither have the physical ability to do so.ILB: As I read this story, I recalled that in the upcoming session the General Assembly will have the choice to pass and send to the voters a constitutional amendment guaranteeing the right "to hunt, fish, and farm" ... For background, start with this ILB entry from Sept. 26th.
Clayton, 59, is confined to a wheelchair due to injuries suffered in a shooting during a robbery. Sconiers, 62, has five herniated discs and is legally disabled.
The Portage Lakefront Park and Pavilion has ADA accessible fishing, but that involves a 6-mile drive for the men.
Even if the men were able, they said dangerous rip currents would dissuade them from wading into the water to fish. They can't afford a boat. * * *
Gary's Law Department responded to the allegations in a letter to Pruitt in October, saying the city is willing to work with state and federal officials, but does not believe fishing access is currently economically feasible.
The letter explains Gary's lakefront is divided into the recreational section near Marquette Park and the industrial section near Buffington Harbor.
The private property owners in Buffington Harbor, "have no affirmative duty or obligation to make their boat docks or property available to the public for deep sea fishing and the city has no control or authority to require these entities to provide access for recreational activities," Niquelle Allen, corporation council, wrote in the letter.
"The city makes every attempt to make recreational facilities and resources available to its citizens," Allen wrote. "However, deep sea fishing is not a fundamental right that is guaranteed nor is there any city ordinance the requires primary access to the lakefront for deep sea fishing to the public."
Ind. Law - "ALEC facing funding crisis from donor exodus in wake of Trayvon Martin row"
Updating many earlier ILB entries on the lobby group ALEC, The Guardian reported yesterday in a lengthy story complete with a number of documents that begins:
An influential US lobbying network of Republican politicians and big businesses is seeking to avert a looming funding crisis by appealing to major donors that have abandoned it over the past two years following criticism of its policy on gun laws.
The Guardian has learned that the American Legislative Exchange Council (Alec), which shapes and promotes legislation at state level across the US, has identified more than 40 lapsed corporate members it wants to attract back into the fold under a scheme referred to in its documents as the "Prodigal Son Project".
Ind. Courts - "Indiana earns ‘F’ for disclosure requirements for high court judges"
That is the headline to this story from The Center for Public Integrity. However, Indiana was not alone:
The Center for Public Integrity evaluated the disclosure rules for judges in the highest state courts nationwide. The level of disclosure in the 50 states and the District of Columbia was poor, with 43 receiving failing grades, making it difficult for the public to identify potential conflicts of interest on the bench. Despite the lack of information in the public records, the Center’s investigation found nearly three dozen conflicts, questionable gifts and entanglements among top judges around the country. Here’s what the Center found in Indiana...The story includes the 2012 disclosure reports from Indiana's five Supreme Court justices.