Sunday, February 07, 2016

Ind. Law - "Did Park Tudor officials violate state law?" And what is an attorney's duty?

That was the headline to this long Feb. 6th Indianapolis Star story by Marisa Kwiatkowski and Vic Ryckaert. Some quotes:

Federal records indicate Park Tudor School officials may have violated state law when they failed to immediately report suspected child abuse in the case involving former basketball coach Kyle Cox.

And the prestigious private school’s attorney — who copied explicit pictures related to the Cox case — may have violated child pornography laws, a legal expert told IndyStar.

Cox, 31, was taken into federal custody Thursday on charges of coercion and enticement, court records show. He is accused of repeatedly coercing a 15-year-old Park Tudor student into sending him explicit images.

The federal complaint raised questions about school officials' handling of evidence in the case, and legal experts consulted Friday by IndyStar cited at least two other potential problems.

First, in a 2014 Indiana Supreme Court opinion, the justices concluded that Indiana law requires certain school officials to immediately report instances of suspected child abuse at their institutions to Indiana Department of Child Services or law enforcement. In that case, the Supreme Court ruled that the four hours it took Christopher Smith, then the principal at Muncie Central High School, to report a suspected rape was too long. [ILB: The opinion on the obligation to timely report child abuse was Smith v. State, see details here.]

Park Tudor officials appear to have waited even longer.

The 15-year-old girl's father met with former head of school Matthew D. Miller and attorney Michael Blickman on Dec. 14 to tell them what was going on between his daughter and Cox, according to the federal complaint. The girl's father showed Miller and Blickman screen shots of explicit messages between Cox and his daughter, which included a graphic picture of the girl. He allowed those school officials to keep the computer overnight to review the material.

The next day, on Dec. 15, a different Park Tudor official reported the suspected misconduct to DCS.

DCS spokesman James Wide said he could not comment on whether Park Tudor officials violated the mandatory reporting law.

"We received a report on Dec. 15," he said.

In a statement issued Thursday, Park Tudor spokeswoman Cathy Chapelle said the school reported the allegations within 24 hours. On Friday, she told IndyStar that school officials would not be making any additional statements. * * *

Blickman, a partner in the labor and employment group of the Ice Miller law firm, did not return repeated calls seeking comment on his conduct relating to the investigation.

Federal court records indicate Blickman made copies of the explicit messages and images, including at least one explicit photo of the girl, and kept them at his office.

“This gets really dicey,” Indianapolis attorney Jack Crawford said. “That’s child pornography. You cannot possess it even if it’s for a legal purpose.”

Crawford, a former elected prosecutor in Lake County and a longtime defense attorney, told IndyStar that he cannot get copies of photos when he is representing a client in a child pornography case. He said he has to go to the U.S. attorney's office to look at them. * * *

On Dec. 15, Cox resigned from Park Tudor after signing a confidentiality agreement with school officials that prohibited him from communicating with Park Tudor students and from discussing the reason for his resignation, according to federal court records. He told a male student that "the nice thing is I can get any job in the state. ... I've positioned myself to be marketable."

Cox's attorney, Jim Voyles, declined to comment on the case Friday.

Court records show Park Tudor officials also allowed Cox to take a school computer home on Dec. 15 to remove "personal" content.

When police started to investigate the allegations against Cox, Blickman told them he would not offer any information because his conversations with school officials were “privileged communications,” court documents state. Blickman said he believed Park Tudor officials had done everything that they needed to do.

The story continues:
The school's actions were not the only ones called into question Friday.

DCS officials did not initiate an investigation after receiving the first report of suspected child abuse on Dec. 15, according to two sources close to the investigation.

In that initial report, a Park Tudor official told DCS that Cox had sent messages to a 15-year-old student that were "suggestive and not appropriate for an adult teacher to send to a student." The official claimed not to know whether pictures had been exchanged.

Wide, the DCS spokesman, said he could not comment on why the agency screened out that first report of the alleged abuse. In general, he said, the more information DCS officials are given, the better able they are to determine whether to initiate an investigation.

The agency did begin an investigation after receiving a second report Dec. 22, federal court records show.

A second Indianapolis Star story, from the same date and time, reported by Vic Ryckaert, Justin L. Mack and Madeline Buckley, is headed "Ex-Park Tudor coach Kyle Cox accused of sending sexually explicit messages to student." Some quotes:
While detectives investigated accusations that a basketball coach repeatedly coerced a 15-year-old student to send him explicit images, administrators and an attorney for a prestigious Indianapolis private school hindered the investigation, federal court documents reveal.

A searing federal criminal complaint that charges former Park Tudor basketball coach Kyle Cox, 31, with a sex offense tells two stories: one that describes the former coach’s confidence that he “could work anywhere in the state” after the school learned about the inappropriate messages, and another that raises questions about whether school officials impeded the investigation. * * *

The complaint, which was unsealed at Cox’s hearing, alleges that Cox developed a relationship with a 15-year-old student during this school year's first semester. In addition to sending sexually explicit messages to the girl, Cox devised a plan to bring the girl to his home while his wife and children were out of town and tried to persuade the girl to meet him for sexual activity at the school, court documents said.

But his plans fell apart when the girl’s father discovered messages between his daughter and Cox, according to court documents.

The documents say the girl's father met with school officials on Dec. 14 and showed them an extensive array of screen shots of explicit messages between his daughter and Cox, which included a graphic picture of the girl. He allowed school officials and the school's attorney to review the material on his computer overnight. * * *

The attorney, who is unnamed in court documents, took the materials to his law office to create new copies and store them on a thumb drive, court documents said. He then returned the laptop and other items to Park Tudor.

The next day, Cox resigned, and the school filed an official report to the Department of Child Services, as required by law. The court documents, though, say the report was lacking in detail and did not say anything about the explicit messages the school and the attorney had in their possession.

The school also allowed Cox on Dec. 15 to take a school computer home to remove "personal" content, the criminal complaint said.

When police went to Park Tudor on Jan. 5 to speak with the person who filed the original report, she said she did not have any additional knowledge of the incident she reported because she was provided the information by the attorney representing the school, according to court documents.

The attorney told investigators that he would not offer any information because his conversations with school officials were “privileged communications,” court documents said. Police explained the importance of finding out who was in possession of the messages, but the attorney said that school officials held the computer only for a short time before returning it to the father.

The attorney said he believed that Park Tudor officials had done everything that they needed to do, according to court documents, and cited attorney-client privilege when refusing to provide additional information.

Two days later, on Jan. 7, police obtained warrants and searched Park Tudor, Cox and Cox’s home. When executing the searches, police confiscated employment records and a cellphone.

It wasn't until police began searching the school that the attorney told detectives that he received a laptop and documents from the girl’s father about three weeks earlier, court documents said.

The Star has made the federal criminal complaint available here.

The IBJ (Indianapolis Business Journal) also has several stories. "Feds aren't saying if Park Tudor, attorney could face charges," a Feb. 5th story by Hayleigh Colombo, begins:

Could Park Tudor School or its attorneys be in legal trouble for their handling of allegations of an inappropriate relationship between its former basketball coach and one of its students?

A spokesman for the U.S. Attorney’s Office said Friday he could not say whether the school or its legal counsel could face charges in the inquiry, which led on Thursday to the arrest of former coach Kyle Cox on a charge of coercion and enticement. The 30-page criminal complaint against Cox said the school and a school attorney impeded authorities after they launched their investigation late last year.

“Everything is still on the table,” said Tim Horty, spokesman for U.S. Attorney Josh Minkler. “The investigation is not complete.”

The complaint said the school and the attorney received copies of sexually explicit photos and text messages from the 15-year-old victim's father on Dec. 14 but did not turn them over to authorities until Jan. 7, when a search warrant was served at the school.

“These agencies—law enforcement and [Department of Child Services]—did not know before the search at the school that the attorney retained copies of the visual depictions of a minor engaged in sexually explicit conduct and the related communications,” according to the complaint.

The Ice Miller attorney representing Park Tudor was Michael Blickman, a partner in the firm's labor and employment group, WTHR-TV Channel 13 reported. Blickman and school headmaster Matthew Miller met with the victim's father on Dec. 14, after he discovered troubling messages and photos on his daughter's phone and contacted the school.

One day later, the school signed a confidentiality agreement with Cox, 31, that allowed him to resign and barred him from discussing reasons for his departure. Cox had been the basketball coach since 2009 and led the team to state 2A championships in 2014 and 2015. * * *

“We all need to be vigilant and mindful of teenagers and their particular vulnerabilities, and that includes Park Tudor,” said Jennifer Drobac, a professor at the IU McKinney School of Law who specializes in juvenile consent. “As soon as they knew about this, I think they had an ethical and moral duty, if not a legal one, to safeguard this child. That means cooperating with the police, if that’s not already obvious.” * * *

When a detective spoke with the school's attorney, the attorney “advised that he was unable to help because of what he said were privileged communications,” according to the complaint.

Drobac said attorney-client privilege doesn’t work like that.

“An attorney does have an obligation to protect the confidences of a client revealed in the course of counseling that client,” Drobac said. “An attorney cannot accept evidence of criminal conduct and keep that secret as a confidence. You can’t use attorney-client privilege to thwart police.”

A Feb. 7th IBJ story, from staff, is headed "Park Tudor taps B&T, Frost Brown Todd as legal counsel." Some quotes:
Park Tudor School—facing criticism of its handling of allegations that its basketball coach sent sexually explicit messages to a 15-year-old student—said in a letter to parents Friday that it has hired a “team of attorneys” from Barnes & Thornburg and Frost Brown Todd to represent the school “in this matter moving forward.”
ILB: Finally, ILB readers may recall this Oct. 12, 2015 ILB post, titled "More on: When must an Indiana attorney report the abuse of a child?" relating to the recent, and controversial, opinion [#2-2015] of the ISBA Legal Ethics Committee, on the "conflict between Indiana’s mandatory reporting statute and the [lawyer's] duty of confidentiality."

Posted by Marcia Oddi on February 7, 2016 02:12 PM
Posted to Indiana Law

Friday, February 05, 2016

Ind. Courts - "Goshen lawyer suspended from practicing law to run for Elkhart Circuit Court judge" [Updated]

So reports Tim Vandenack in this story today in The Elkhart Truth that begins:

GOSHEN — Joseph Lehman, a Goshen attorney suspended by the Indiana Supreme Court from practicing law due to professional misconduct, plans to run for Elkhart County Circuit Court judge.

Lehman couldn’t hold the judge post if elected, because of the suspension. But he said he plans to apply for his Indiana Bar license by Jan. 1, when the new judge takes office. That would meet the legal requirement to hold the spot.

Lehman — found guilty last year on three misdemeanor counts of practicing law by a non-attorney, after his license suspension — cited his 25 years as a private attorney and his familiarity with the local court system.

“I am fit. I am not unfit,” said Lehman, who has run, unsuccessfully, for several judge’s posts in Elkhart County over the years.

See also this Oct. 8, 2015 ILB post headed "Suspended Goshen lawyer fined and held in contempt for practicing while suspended."

[Updated 2/7/16]
From a later Feb. 5th story from reporter Vandenack:
Joe Lehman, would-be candidate for Elkhart Circuit Court judge, did not get the required paperwork in on time to run for the spot in the primary in May and won’t be on the ballot.

Still, the Goshen attorney — a Democrat suspended by the Indiana Supreme Court in 2014 from practicing law due to professional misconduct — plans to vie for the judge’s post.

The filing deadline to get on the May 3 primary ballot was noon Friday. Lehman filed his declaration of candidacy with the Indiana Election Division, part of the Indiana Secretary of State office. But he didn’t provide a receipt from the Indiana Division of State Court Administration indicating he had filed a “statement of economic interest,” which is also required, said Angela Nussmeyer, co-director of the Election Division.

Thus, Nussmeyer said Friday, election officials have rejected Lehman’s application to get on the ballot and will be sending him a letter saying as much.

Lehman, advised of the news later Friday, took the development in stride. “I’ll have the party slate me,” he said, which would secure a spot for him on the Nov. 8 general election ballot.

Posted by Marcia Oddi on February 5, 2016 11:34 AM
Posted to Indiana Courts

Ind. Courts - Request by the Indiana Criminal Justice Institute For Release of Bulk Data or Compiled Information Excluded from Public Access

The Supreme Court has posted an order filed Feb. 4th titled "Order granting Indiana criminal justice institute’s request under administrative rule 9(f)(4) for release of bulk data or compiled information that includes information excluded from public access under Administrative Rule 9." A few quotes from the 4-page order:

The Indiana Criminal Justice Institute (ICJI) has filed a Verified Request for Bulk Data/Compiled Information under Administrative Rule 9(F)(4). This request seeks to obtain specific data from all Indiana trial courts exercising jurisdiction over criminal and juvenile delinquency cases that is excluded from public access under Administrative Rule 9. * * *

The records sought are generally excluded from public access under Admin. R. 9(G) and access to bulk or compiled case records excluded from public access may be granted by this Court only under specific circumstances under Admin. R. 9(F)(4)(c). Under Admin. R. 9(F)(4)(a)(v), moreover, a request for bulk distribution or compiled information that includes information excluded from public access must provide for individual notice to all persons affected by the release of the information unless, upon prior notice to the Indiana Attorney General and a reasonable opportunity to respond, such individual notice requirement is waived by this Court. ICJI requested the Court waive the requirement for provision of individual notice to all persons affected by the release of the information.

The Indiana Attorney General has filed a Response as provided for under Admin. R. 9(F)(5) and does not oppose the requested waiver.

Accordingly, the Court finds that ICJI has shown by clear and convincing evidence that it has satisfied the requirements of Admin. R. 9(F)(4)(a)(i), (ii), (iii), and (iv), and the public interest will be served by allowing access.

The Court further finds the information sought by ICJI is consistent with the purposes of this rule, resources are available to prepare the information, and fulfilling the request is an appropriate use of public resources.

After consideration of the request for waiver of individual notice to individuals affected by release of the information excluded from public access, the Court finds by clear and convincing evidence that the purposes for which the information is sought substantially outweighs the privacy interests protected by this rule. Accordingly, due to the highly secure manner for the protection of the data, the Court waives the requirement of individual notice to all parties affected by release of the sought information to which public access is prohibited or restricted.

The Court hereby grants the request for Bulk Data/Compiled Information under Administrative Rule 9(F)(4) to the extent discussed herein. Specifically, ICJI shall receive data from Indiana Court Records and INcite from courts utilizing the Odyssey Case Management System exercising criminal and juvenile delinquency jurisdiction related to arrest, court referrals, diversion, juvenile detention, petitions filed, delinquency records, probation records, supervision records, placements, secured confinement records, and waivers (of juvenile jurisdiction). However, with regard to social security numbers, dates of birth, and addresses, the data provided is limited to the last four digits, the month and year of birth, and the zip code of the address.

Upon completion of its study, but no later than January 31, 2017, unless an extension of time is granted, ICJI will securely wipe any sections of computer hard drives on which the requested data is stored. The Division of State Court Administration may, if requested, grant one year renewals of the User Agreement, not to exceed three, without further consideration by the Court if the data sought in the proposed renewals does not change, other than for data from new Odyssey courts, and the prescribed enhanced security standards remain.

Posted by Marcia Oddi on February 5, 2016 11:14 AM
Posted to Indiana Courts

Ind. Decisions - Court of Appeals issues 1 opinion(s) today (and 4 NFP memorandum decision(s))

For publication opinions today (1):

In Liter's of Indiana, Inc. v. Earl E. Bennett and Daniel L. Bodine, a 28-page opinion, Judge Riley writes:

Appellant-Plaintiff, Liter’s of Indiana, Inc. (Liter’s), appeals the trial court’s judgment entered pursuant to a jury’s verdict in favor of the Appellees-Defendants, Earl Bennett (Bennett) and Daniel Bodine (Bodine) (collectively, the Appellees). * * *

Liter’s raises three issues on appeal which we restate as follows: (1) Whether the common enemy doctrine precludes the Appellees’ negligence claim against Liter’s; (2) Whether the trial court abused its discretion in admitting certain expert testimony; and (3) Whether the jury awarded inadequate damages on Liter’s trespass claim. * * *

In light of the foregoing, we conclude that: (1) the common enemy doctrine does not preclude the Appellees’ negligence claim; (2) there was no abuse of discretion in admitting Love’s testimony; and (3) Liter’s argument that the jury’s award of zero damages is inadequate is waived on appeal; however, because there is continuing trespass, we remand to the trial court with instructions for the issuance of a permanent injunction.

Affirmed, but remanded with instructions for the issuance of a permanent injunction with respect to the continuing trespass.

NFP civil decisions today (0):

NFP criminal decisions today (4):

Raymond D. Tyson v. State of Indiana (mem. dec.)

Matt D. Neace v. State of Indiana (mem. dec.)

Keith Hoglund v. State of Indiana (mem. dec.)

David Streeter v. State of Indiana (mem. dec.)

Posted by Marcia Oddi on February 5, 2016 11:00 AM
Posted to Ind. App.Ct. Decisions

Thursday, February 04, 2016

Ind. Decisions - Court of Appeals issues 2 opinion(s) today (and 5 NFP memorandum decision(s))

For publication opinions today (2):

In State of Indiana v. Chad T. Mooney, Brittany McCool, a 7-page opinion, Judge Robb writes:

In this consolidated appeal, the State of Indiana appeals the trial court’s denial of its motions for relief from judgment. Finding no error, we affirm. * * *

The State’s motions invoked subsections (B)(1) and (B)(8) of Trial Rule 60, which permit relief upon a showing of “mistake, surprise, or excusable neglect,” or any other reason warranting relief from the judgment. A party filing a motion under subsections (B)(1) or (B)(8) must also “allege a meritorious claim or defense.” Ind. Trial Rule 60(B). However, a motion for relief from judgment may not be used as a substitute for direct appeal. Gertz v. Estes, 922 N.E.2d 135, 138 (Ind. Ct. App. 2010). “Trial Rule 60(B) motions address only the procedural, equitable grounds justifying relief from the legal finality of a final judgment, not the legal merits of the judgment.” In re Paternity of P.S.S., 934 N.E.2d 737, 740 (Ind. 2010). * * *

The State’s motions—filed on November 25, 2014—did not identify any “mistake, surprise, or excusable neglect” suffered by the State, nor any other reason justifying relief from the judgment. At the hearing on its motions, the State briefly mentioned what it characterized as “delay” in the trial court sending the relevant orders to the BMV * * * But we cannot agree the act of re-sending the orders to the BMV constituted “delay.” There is nothing in the record suggesting the BMV did not receive the orders the first time they were sent, and the BMV offered no explanation for why it waited months to intervene in either case. * * *

The State has not established prima facie error in the trial court’s denial of its motions for relief from judgment. The State failed to identify any circumstances warranting relief under Trial Rule 60(B)(1) or (B)(8), and its motions addressed only the legal merits of the judgments. We will not entertain the State’s attempt to resurrect an untimely appeal.

In Landon T. Harbert and Malcolm M. Smith v. State of Indiana, a 24-page opinion, Judge Baker writes:
Landon Harbert appeals his conviction for Robbery, a class B felony, and the twenty-year sentence imposed by the trial court. Malcolm Smith, Harbert’s co-defendant, appeals his convictions for two counts of Robbery, a class B felony. * * * Finding no error, we affirm.
NFP civil decisions today (5):

In Re: the Marriage of: Renita A. Marek and Edward Marek (mem. dec.)

Jeffrey T. Boring v. Lisa K. Boring (mem. dec.)

In the Matter of the Termination of the Parent-Child Relationship of: C.P. & M.P. (Minor Children) and S.S. (Mother) v. The Indiana Department of Child Services (mem. dec.)

Kulwinder Kaur v. Hardev S. Bal (mem. dec.)

Michael C. Feldhake v. Meryle Lowe (Feldhake) (mem. dec.)

NFP criminal decisions today (0):

Posted by Marcia Oddi on February 4, 2016 11:14 AM
Posted to Ind. App.Ct. Decisions

Ind. Courts - Online public access to e-filed public documents to be studied by Indiana Court [Updated]

From an order filed yesterday, creating an advisory task force on remote access to and privacy of electronic court records:

Currently, the public can access non-confidential records in a case file by going to the courthouse or contacting the clerk or court staff for assistance. The result is often referred to as "practical obscurity" because most public case documents remain obscure in the hard copy case file. In the near future, the electronically filed and digitized documents in a case file could be posted on the Internet and made available around the world. This capability raises new questions about balancing litigants' privacy against the public convenience (and expectation) of remote access over the Internet.
The order continues:
In 2003, a 28-member Privacy and Public Access Task Force, chaired by Justice Brent Dickson, worked for a year and recommended to the RMC a comprehensive rule about confidentiality and public access to court records. Ultimately, the result was this Court’s adoption of a new Administrative Rule 9, effective January 1, 2005.

We find that technological developments since the adoption of Administrative Rule 9 warrant a renewed study of best practices and policies on Internet access to electronic court records.

An Advisory Task Force on Remote Access to and Privacy of Electronic Court Records is hereby created to work under the auspices of the RMC and Court Technology. A list of the Advisory Task Force members is attached. In conducting its work, the task force should consider the purposes articulated in Indiana Administrative Rule 9(A)(2), which are:

a. Promote accessibility to court records;
b. Support the role of the judiciary;
c. Promote government accountability;
d. Contribute to public safety;
e. Minimize risk of injury to individuals;
f. Protect individual privacy rights and interests;
g. Protect proprietary business information;
h. Minimize reluctance to use the court system;
i. Make the most effective use of court and clerk staff;
j. Provide excellent customer service;
k. Avoid unduly burdening the ongoing business of the judiciary.

The task force is directed to provide an initial written report, with findings and recommendations, to the RMC and to Justice Steve David and Judge Paul Mathias as the leaders of the Court's technology initiatives, not later than September 1, 2016.

Here are the members:
1. The Honorable Loretta H. Rush, Chief Justice of Indiana, Chair
2. Melissa Jane Avery, Attorney, Broyles Kight & Ricafort, P.C.
3. Professor Fred H. Cate, Indiana University Maurer School of Law
4. Christa Coffey, Clerk, Tippecanoe Circuit and Superior Courts
5. Kenneth J. Falk, Legal Director, ACLU of Indiana
6. Christine Hayes Hickey, Attorney, Rubin and Levin, P.C.
7. Lilia G. Judson Interim Chief Administrative Officer, Indiana Supreme Court
8. Stephen Key, Executive Director and General Counsel, Hoosier States Press Association
9. Larry A. Landis, Executive Director, Indiana Public Defender Council
10. Jon Laramore, Executive Director, Indiana Legal Services, Inc.
11. The Honorable Peggy Lohorn, Judge, Montgomery Superior Court 2
12. Kelly McBride Executive Director, Domestic Violence Network
13. The Honorable David Ober, Indiana House of Representatives
14. David N. Powell, Executive Director, Indiana Prosecuting Attorneys Council
15. Professor Joel Schumm, Indiana University Robert McKinney School of Law
16. Gary D. Secrest, Assistant Attorney General, Office of the Attorney General
17. Debra Walker, Clerk, Henry Circuit Court
18. The Honorable Mary G. Willis, Judge, Henry Circuit Court 1
Some ILB readers may remember this Nov. 10, 2015 post from Prof. Joel Schumm (#15 above) headed, "Appellate E-filing is terrific! — except for one thing." The "one big disappointment":
Now that all these motions and briefs exist in electronic format, one would expect easy access by other lawyers, trial judges, the public, and the press. Unfortunately, that is not part of the pilot project.

For the past several months, court opinions and orders have been linked to the online docket; a simple click on a hyperlink takes any interested person there. E-filed motions and briefs, however, will not be hyperlinked through the online docket or otherwise available. When I asked about this at the training session, I was told this was a “policy decision” — not one related to technology.

I hope that decision is revisited. Each E-filed document requires the user to specify whether it is “public” or “confidential.” Nothing appears on the online docket until personnel in the Clerk’s office review and accept the filing. Every “public” document should truly be public, which with today’s technology and expectations means accessible through a click of the docket.

Although some briefs end up on Westlaw, many do not and many Indiana lawyers, not to mention nearly every member of the media or public, do not have access to Westlaw. Lawyers and judges may be interested in the arguments made by counsel in a similar case; they should be able to read those arguments without paying the Clerk’s office for a photocopy or tracking down counsel to request the document be emailed to them. Nor should that burden be imposed on the public or press whenever they are interested in an E-filed public document.

The Indiana Supreme Court has generally been very good on transparency issues, including the webcasting of oral arguments well before most other courts. I hope that commitment to transparency continues by linking all public E-filed documents.

The new "advisory task force on remote access to and privacy of electronic court records" is to make "findings and recommendations to the RMC and to Justice Steve David and Judge Paul Mathias as the leaders of the Court's technology initiatives." No word on what will happen thereafter.

The ILB has asked the Court's Chief Public Information Officer about whether the meetings of this advisory group will be public. One hopes they will be webcast, archived, and that agendas will be available in advance.

[Updated at 11:40 AM]
The ILB has heard back from the Court:

The meetings are open to the public. The first meeting is February 26, 12-2pm. I do not have a location established at this time.
ILB: That is good to hear. This topic is being debated across the country; it would be good if Indiana could establish a public record of its deliberations through a video-archive or at least agendas and extensive minutes.

Posted by Marcia Oddi on February 4, 2016 10:13 AM
Posted to Indiana Courts

Ind. Gov't. - "Home rule and plastic bags" - blowing in the wind ...

Indiana has home rule except when it doesn't. Megan Banta wrote Tuesday in a Bloomington Herald-Times blog:

There’s a bill moving through the General Assembly that could leave an initiative to ban single-use plastic bags in Bloomington dead in the water.

The proposal, authored by a Republican from southwestern Indiana, would eliminate the ability of local government entities to regulate single-use and retail containers, whether reusable or disposable.

Specifically, local governments wouldn’t be able to adopt of enforce ordinances or resolutions to prohibit, restrict, charge fees for or tax the usage of these containers, should the law pass.

That means that efforts by the group Bring Your Bag Bloomington, which hopes to get an ordinance through city council that would first charge for and then ban single-use plastic bags, wouldn’t ever see a result.

And it means if any cities, counties, towns, etc. have similar ordinances (though none in Indiana do, to our knowledge), they wouldn’t be able to enforce them.

The proposal does allow for exemptions in the cases of recycling, whether though a drop-off location or curbside service offered by a locality, and in the case of events organized, sponsored or permitted by a city or similar unit or that take place on government property.

If passed into law, the bill would be effective immediately.

The bill, HB 1053, has passed the House.

Posted by Marcia Oddi on February 4, 2016 10:00 AM
Posted to Indiana Government

Ind. Gov't. - More on: Bill to ban abortions sought due to the gender or disability of a fetus passes Indiana Senate

Supplementing this ILB post from yesterday, Dan Carden has this story in the NWI Times, headed "Indiana could bar abortions prompted by fetal abnormalities." Some quotes:

Pregnant Hoosier women who learn their child will be born with Down syndrome or another genetic disease, defect or disorder would be prohibited from obtaining an abortion, under legislation approved 35-14 by the Republican-controlled Senate.

Senate Bill 313
, sponsored by state Sen. Travis Holdman, R-Markle, bars doctors from performing an abortion if the doctor knows the patient is seeking an abortion due to a diagnosis, or potential diagnosis, of a genetic fetal disability.

The legislation also prohibits abortions motivated by gender selection, or due to the race, color, national origin or ancestry of the fetus. * * *

Opponents of the measure questioned why Indiana would force women to give birth to children with genetic disabilities if the women know they cannot or do not want to take on that burden, and the state is not allocating extra funds to help care for those children.

A woman still could obtain an abortion in Indiana prior to viability, or 20 weeks of pregnancy, if the fetus either is healthy or destined to suffer a nongenetic lethal fetal anomaly where the child dies within three months of birth.

In that circumstance, the measure requires doctors give women a state-published brochure discouraging abortion by detailing the availability of perinatal hospice programs that ensure "the woman and her family experience the life and death of the child in a comfortable and supportive environment."

Should the legislation advance through the House and be signed into law by Republican Gov. Mike Pence, it almost certainly will be challenged in federal court where most recently enacted Indiana abortion restrictions have been struck down as unconstitutional.

A separate proposal to win approval this week, House Bill 1337, encourages the burial of aborted fetuses and requires abortion doctors comply with numerous additional paperwork mandates.

Posted by Marcia Oddi on February 4, 2016 09:39 AM
Posted to Indiana Government

Ind. Gov't. - From a county clark: "Once a clerk, always a clerk"

Article 6, Sec. 2 of the Indiana Constitution:

Section 2. (a) There shall be elected, in each county by the voters thereof, at the time of holding general elections, a Clerk of the Circuit Court, Auditor, Recorder, Treasurer, Sheriff, Coroner, and Surveyor, who shall, severally, hold their offices for four years.

(b) * * *

(c) No person shall be eligible to the office of Clerk, Auditor, Recorder, Treasurer, Sheriff, or Coroner more than eight years in any period of twelve years.
(History: As Amended November 4, 1952; November 6, 1984; November 2, 2004).

Today Jessica Campbell of the Michigan City News-Dispatch has a good story about the job of county clerk that sheds light on those requirements. Some quotes:
Lynne Spevak said the inability to leave the clerk's office for good is a joke among county government office holders throughout the state. Even despite placing her name in the ballot for the treasurer position in the next term, Spevak said she will always have the knowledge of the La Porte County Circuit Court Clerks Office in the back of her brain.

In the upcoming La Porte County primaries, Spevak will run for the treasurer's office once her current term limit is out at the end of the year. Spevak has held this position four times, totaling 15 years of experience.

"I'll just put all that knowledge in the back of my brain," she said. "Let's learn something new."

Spevak, 54, was born in La Porte, attended La Porte High School and earned an Associates degree from Davenport College in South Bend. In 1994, she joined the clerk staff working part-time in the microphone office. In 1996, she applied for the clerk role and in 1998, after a hold-over year, she began her first term as La Porte County clerk.

She enjoyed the daily tasks of working with court files, elections, bond financials, child support, marriage licenses and archival work. "It is a challenge every day and no day is the same," she said. "It is fast-paced and I thought I was capable of doing that when I started."

At some points, she admitted, the position is stressful, especially when files and reports are not turned in on time and she has to collect fines from people.

The biggest mistake over the four terms that Spevak remembers is misspelling a name of a candidate in one of the elections. The name, she said, was misspelled on the ballot, and no one caught the mistake until 4 p.m. on election day.

"There are a lot of minimal mistakes but, to me, that was the biggest thing," she said. "We try to make corrections right away when anything happens."

When looking at her options after her term limit is out at the end of the year, Spevak said, she knew Nancy Hawkins was also finishing out her term. Hawkins is the current La Porte County treasurer.

"If you like county government then you just look around for the next open office," Spevak said. "I saw the opening and said, 'Hey, I'll give it a try.'"

If she wins the new position and serves out the four-year term, Spevak said, she has the ability to re-apply for the clerk office, however she said 15 years is a lot.

Among the four terms, she was able to have a year break where she could regenerate herself since the positions of clerk and auditor are known to be the hardest roles.

"You're just busy every day," she explained. "There are so many responsibilities; sometimes it is just too much."

With the treasurer role, Spevak would take over the tax sale and property taxes, and how the city invests funds. "I'm going to have to learn some stuff," she said. If she wins, her new job will take her to 555 Michigan Ave. and will work with the two Michigan City treasurers. * * *

"I am a hands-on worker, always working the counter or answering the phone," she explained. "Hopefully, I am not as busy in the other office. If I win and get bored, though, I can come over here (to the clerk's office) and see what's happening."

Posted by Marcia Oddi on February 4, 2016 09:16 AM
Posted to Indiana Government

Ind. Gov't. - Senator Delph appointed to chair Senate Select Commission on Immigration Issues

The Select Commission is announced in this Feb. 2nd news release from the Indiana Senate Republicans.

See also this Sept. 23, 2015 quote from a NWI Times story headed "Immigration battle could flare up at Indiana Statehouse."

Posted by Marcia Oddi on February 4, 2016 09:01 AM
Posted to Indiana Government

Ind. Courts - "Injured worker’s case tests state law: Undocumented immigrant is seeking lost wages"

Noe Escamilla v. Shiel Sexton Company Inc., a case that was argued before the Court of Appeals on January 6th, is the subject of a front-page story today in the Indianapolis Star, reported by Kristine Guerra.

You can watch the entire oral argument here. The Court's brief description of the controversy:

While working at a construction site at which Shiel Sexton was the general contractor, Noe Escamilla sustained injuries that prevent him from obtaining future employment as a masonry laborer. He sued Shiel Sexton for lost future income. Shiel Sexton wishes to admit evidence of Escamilla's status as an immigrant and asserts that future wages should be limited to what Escamilla could make in Mexico. Escamilla argues that evidence of his immigration status would be more prejudicial than probative and that his lost income should be based on U.S. wages like those he has been making.
The panel was: Judges Baker, May and Bradford. The lengthy Star story concludes:
[Tim] Devereux, Escamilla’s attorney, said his immigration status should not affect his ability to recover lost earnings. Companies that knowingly hire undocumented immigrants should be held responsible if their employees are injured on the job, he added. “You’re telling these people they’re expendable,” said Devereux, of Ladendorf Law. “They want their labor and their services, but when they get injured … the company suddenly says, ‘Well, they’re undocumented immigrants.’ “

Indiana courts have never faced legal questions similar to the ones posed in Escamilla’s case.

But at least 20 courts from other states, including Texas, New York and California, have held that undocumented people can collect U.S. lost wages that result from injuries, said Alexander Limontes of the Indiana Trial Lawyers Association.

“If you look at the courts that have made this ruling, Texas has said that not only can these people collect lost wages, the fact that they were undocumented should never even make it to court in front of the jury,” said Limontes, who filed a brief in support of Escamilla. “These people, they’re not going anywhere. The taxpayers, do they have to take care of them as opposed to the person that hurt them originally?”

Earlier in the story:
A Montgomery Superior Court judge decided last summer that because Escamilla could not legally work in the U.S., he could not claim lost wages.

Judge Heather Dennison further wrote that he violated federal law by misrepresenting his immigration status to get a job. Escamilla is now asking the Indiana Court of Appeals to reverse Dennison’s ruling.

The appeals court heard arguments on Escamilla’s case in early January and has yet to issue a ruling.

Posted by Marcia Oddi on February 4, 2016 08:40 AM
Posted to Ind. App.Ct. Decisions

Wednesday, February 03, 2016

Ind. Decisions - Court of Appeals issues 1 opinion(s) today (and 5 NFP memorandum decision(s))

For publication opinions today (1):

In Branda Hall v. Dallman Contractors, LLC, Shook LLC, and AT&T Services, Inc., a 12-page opinion, Judge Altice writes:

This case arises out of a negligence action filed by Brenda Hall (Hall) against AT&T Services, Inc. (AT&T Services), among others, for injuries she sustained when she tripped and fell on her way into work. AT&T Services filed a motion for summary judgment asserting that Hall’s negligence claim against it was barred by the exclusive remedies provision of the Worker’s Compensation Act (the Act). See Ind. Code § 22-3-2-6. The trial court agreed, finding that the designated evidence established that under the corporate structure of AT&T, Inc., AT&T Services and Ameritech, Hall’s employer, were both subsidiaries of AT&T, Inc., and as such, were joint employers of Hall. Consequently, Hall’s negligence action against AT&T Services could not stand because Hall had already received a worker’s compensation settlement from Ameritech. The trial court therefore granted summary judgment in favor of AT&T Services. We affirm. * * *

Because Ameritech and AT&T Services are both subsidiaries of AT&T, Inc., they should be considered joint employers pursuant to the Act’s definition of “employer.” As such, Hall’s negligence action against AT&T Services is barred by the exclusive remedies provision of the Act because Hall has already received a worker’s compensation settlement from Ameritech. The trial court did not err in granting summary judgment in favor of AT&T Services.

NFP civil decisions today (2):

In Re the Adoption of S.Z., R.W. v. C.G. (mem. dec.)

In the Matter of: Ja.N., M.N. & Jy.N (minor children), Children in Need of Services, and J.C. (mother) & J.N. (father) v. The Indiana Department of Child Services (mem. dec.)

NFP criminal decisions today (3):

Steven Magness v. State of Indiana (mem. dec.)

Stanley Freeman v. State of Indiana (mem. dec.)

Jeremy McCool v. State of Indiana (mem. dec.)

Posted by Marcia Oddi on February 3, 2016 11:29 AM
Posted to Ind. App.Ct. Decisions

Ind. Courts - Marion County Superior Courts bill on 3rd today

SB 352 passed second Monday, without amendment. This is its final day for passage in the Senate.

For more, see this ILB post from Jan. 29th, "Bill would create new way to select Marion County judges."

Posted by Marcia Oddi on February 3, 2016 10:03 AM
Posted to Indiana Courts

Ind. Gov't. - " Indiana this year will not enact legislation specifically protecting the civil rights of lesbian, gay, bisexual and transgender Hoosiers"

This is the lede to Dan Carden's story today in the NWI Times about yesterday's decision by the Senate Republican caucus. Some quotes:

Senate Bill 344 failed to advance Tuesday for a final vote by the Republican-controlled Senate after its sponsor, state Sen. Travis Holdman, R-Markle, declined to allow senators to consider changes to the measure.

His decision ends some 10 months of debate over whether Indiana would adopt an LGBT anti-discrimination law to wipe away lingering controversy tied to approval for the 2015 Religious Freedom Restoration Act, which was widely seen as licensing discrimination against gays and prompted nationwide boycotts of Indiana businesses.

As a result, RFRA remains law in Indiana with the caveat that Hoosiers cannot use "religious freedom" to discriminate against LGBT individuals.

LGBT Hoosiers still can be denied employment, housing and access to public accommodations for any other reason, except in communities with local ordinances prohibiting such discrimination.

Holdman said, despite his best efforts to craft legislation balancing civil liberties with strong protections for religious freedom, he simply could not find enough Senate support for the plan that was approved 7-5 last week by the Rules Committee. * * *

"I believe the balanced approach that was outlined in the bill would be a step forward for our state," Holdman said. * * *

Senators clearly disagreed, filing 27 proposed changes to the measure.

After an extended private discussion Tuesday among Senate Republicans about the amendments, Holdman decided to kill his proposal rather than watch it become unrecognizable.

Senate President David Long, R-Fort Wayne, said it wasn't clear the legislation would pass the Senate, even if any or all of the suggested changes were adopted.

"They didn't want to go through the pain of having all this discussion if, in fact, in the end the bill was not going to move," Long said.

"We also got messages from the House that they weren't really probably going to seriously consider it. I don't know what the message was from down on the second floor; we still aren't sure what the governor would or wouldn't have done."

"All of that weighed into a difficult environment for us," Long said.

"Why Indiana lawmakers killed the gay rights debate for this year" is the headline to this lengthy Indianapolis Star story by Stephanie Wang, Chelsea Schneider and Tony Cook, that begins:
The gay rights debate in the Indiana General Assembly this year is over.

After meeting privately, Senate Republican leaders decided Tuesday to kill legislation that would have protected gay Hoosiers from discrimination. They did so without a full debate or vote.

Senate leader David Long, R-Fort Wayne, said the legislation didn’t have enough support from Republicans to warrant further discussion.

The failure of legislation this session means lesbian, gay, bisexual and transgender Hoosiers can still be legally discriminated against in most of the state. A person's sexual orientation or gender identity can be used as a reason by a landlord who turns them away from housing, an employer who fires them from a job, or a business owner who refuses to serve them.

The end of the debate marks a huge win for religious conservatives, who have been battling a changing cultural tide on gay rights issues. It also relieves political pressure on Republican Gov. Mike Pence, a born-again Christian who last month questioned the need for such legislation, as he seeks re-election.

Pulling the plug on legislation deals a blow to influential Indiana businesses that pushed for LGBT rights, and to advocacy groups that have, until now, successfully fought to advance the status of LGBT Hoosiers.

Still, Long pledged to revive the issue next year, and said he thinks LGBT rights in Indiana are inevitable.

“It just depends on when,” he said.

He said apprehensions from Pence and House Speaker Brian Bosma over advancing gay rights factored into his decision to stop pursuing legislation.

It was a swift death for the gay rights proposal, Senate Bill 344, which was carried by Republican leadership in the Senate. Last week, a Senate committee crafted and gave initial approval to the proposal to extend civil rights to gay Hoosiers, but not transgender people, with some exemptions for religious organizations, faith-based groups and small businesses providing wedding services.

As recently as Thursday, Long said he would bring the debate before the full Senate, stressing the importance of public discussion.

But Tuesday, Senate leaders said both sides remained too entrenched to reach a workable compromise.

"No matter what I do, no matter what I propose," said bill author Travis Holdman, R-Markle, "I cannot move these walls that are on the right and the left hand, because nobody wants to give. Nobody wants to move."

"The movement to provide anti-discrimination protections to lesbian, gay and transgender Hoosiers died Tuesday with barely a fight." That is the lede to Niki Kelly's story today in the Fort Wayne Journal Gazette. More:
Instead of hashing out 27 amendments filed on Senate Bill 344, the Senate Republican supermajority killed the bill behind closed doors in caucus. This came despite Senate President Pro Tem David Long, R-Fort Wayne, saying last week the measure would be called for debate whether it had enough votes to pass or not.

The issue that led to the bill’s demise was whether or not to include gender identity in the bill to aid transgender Hoosiers.

“No matter what I do, no matter what I propose, I cannot move these walls that are on the right and the left because nobody wants to give,” said Sen. Travis Holdman, R-Markle, the author of the bill. “Nobody wants to move.”

Long went out on a limb to push a compromise bill on civil rights this session. But the caucus chose to halt it before the “blood-letting” of the amendment discussion, since the bill didn’t have enough support to pass, Long said.

“We tried to find a solution fair to all sides. We were hampered by well-organized extreme messaging by groups representing both sides of this discussion,” he said. “My way or the highway doesn’t work in the legislative process.”

He added that “we tried very hard to find consensus. We stumbled on the transgender issue.”

The topic of bathroom usage had complicated that part of the bill, which is why Holdman removed it entirely.

The business community had lined up behind the effort – noting the loss of talent, jobs and investment tied to the issue. And grass-roots equality group Freedom Indiana has lined the halls of the Statehouse with supporters.

But Gov. Mike Pence made clear he came down on the side of religious liberty. Conservative evangelicals have argued it is against their religious beliefs, for instance, to provide services for a same-sex wedding. * * *

Senate Democratic Leader Tim Lanane said Democrats were not intractable on the issue, and offered compromises providing protection for transgender Hoosiers for housing and employment but not public accommodations.

“It’s not that complicated. We’ve made it more complicated than it should be,” he said. “There is no reason we should not have acted boldly this year.”

Indiana Competes said Senate Bill 344 was flawed “but it generated the most substantive conversation Indiana has seen regarding anti-discrimination legislation for the LGBT community.”

“This issue will not disappear. A clear majority of Hoosiers support robust protections from discrimination on the basis of sexual orientation and gender identity.”

Long said almost half the state is covered by a local ordinance and he expects that to grow – something that will put pressure on a state law. He also said he fears religious liberty will lose if courts are involved.

Posted by Marcia Oddi on February 3, 2016 09:10 AM
Posted to Indiana Government

Ind. Gov't. - Bill to ban abortions sought due to the gender or disability of a fetus passes Indiana Senate

Chelsea.Schneider of the Indianapolis Star has this story on SB 313, updating an earlier story from Jan. 28:

A controversial effort to ban abortions sought due to the gender or disability of a fetus passed the Indiana Senate on Tuesday.

A similar proposal died during last year’s legislative session. But its key supporters said bringing back the proposed abortion restrictions this year was important to preserve human life.

The measure cleared the Senate by a 35-14 vote, with four Republicans joining Senate Democrats in opposing the new restrictions. They argued supporters of the bill weren’t taking into account the costs associated with raising a child with a disability and that the possible unconstitutional restrictions stomped on women’s rights.

Sen. Jean Breaux, an Indianapolis Democrat, said the bill was driven by politics and an agenda to end access to abortions for women.

“Abortion remains a deeply personal and sometimes very complex decision that must be left to the woman, her family and her faith,” Breaux said.

However, one of Senate Bill 313’s authors, Sen. Travis Holdman, a Markle Republican, said the bill “sends one clear message to the nation and to our fellow Hoosiers and that is that we value human life.”

The proposal would ban abortions if the reason a woman seeks one is “solely” because of the sex of a fetus or because a fetus is diagnosed, or potentially diagnosed, with Down syndrome or another genetically-inherited disease.

It also would make the sale of fetal tissue a Level 5 felony and require parents whose fetus is diagnosed with a “lethal fetal anomaly,” meaning the baby would not live longer than three months after birth, to receive information about perinatal hospice. However, the bill wouldn't restrict a woman from receiving an abortion if her fetus has a "lethal fetal anomaly."

State law currently restricts most abortions after 20 weeks of pregnancy. Before then, abortions are legal and a woman is not required to give a reason for seeking the procedure.

The measure now goes to the House where the proposal died last year.

Posted by Marcia Oddi on February 3, 2016 08:59 AM
Posted to Indiana Government

Tuesday, February 02, 2016

Ind. Decisions - Court of Appeals issues 1 opinion(s) today (and 9 NFP memorandum decision(s))

For publication opinions today (1):

In State of Indiana and Indiana Bureau of Motor Vehicles v. Nicholas Hargrave, a 13-page opinion, Chief Judge Vaidik writes:

After Nicholas Hargrave was charged with operating a motor vehicle while intoxicated and operating a motor vehicle while intoxicated in a manner that endangered a person, Hargrave surrendered his Commercial Drivers License (CDL) and pleaded guilty. The trial court withheld judgment of conviction, and Hargrave was ordered to participate in a diversion program. Hargrave’s case was deferred with a provision that it would be dismissed if he successfully completed the diversion program. In the meantime, the Bureau of Motor Vehicles (the BMV) refused to reinstate Hargrave’s driving privileges without proof he held SR22 insurance. After the trial court granted Hargrave’s petition asking it to order the BMV to reinstate his driving privileges without requiring him to provide proof of SR22 insurance, the BMV intervened in the case and filed a motion to correct error. In this motion, the BMV asked the trial court to determine that 1) Hargrave was not eligible for a diversion program because he held a CDL at the time of the offense, and 2) Hargrave was required to provide proof of insurance for three years following the termination of his suspension. The trial court denied the motion, and the State appealed.

Because the BMV properly interpreted federal regulations adopted by Indiana statutes to mean that a person who holds a CDL at the time he commits a traffic violation may not participate in a diversion program, the trial court erred in denying the State’s motion to correct error on this issue. In addition, because Hargrave’s driving privileges were suspended under Indiana Code section 9-30- 6-9, Hargrave is required to file proof of financial responsibility for three years following the termination of his suspension under Indiana Code section 9-30-6- 12, and the trial court erred in denying the State’s motion to correct error on this issue as well. We therefore reverse the trial court’s denial of the State’s motion to correct error. * * *

Pyle, J., concurs.
Robb, J., concurring with separate opinion. [that begins, on p. 12] I concur in the majority opinion. I write separately only to note the inconsistent treatment of those who currently hold CDLs and those who do not (but could in the future).

NFP civil decisions today (4):

In the Termination of the Parent-child Relationship of, E.R. (Minor Child), and, J.B. (Father) v. Indiana Department of Child Services (mem. dec.)

Thomas J. Fenton and Cheryl D. Fenton v. City of Seymour, Indiana (mem. dec.)

D.L. v. Indiana Department of Child Services (mem. dec.)

In Re Guardianship and Adoption of L.J.M. (a Minor) M.M. and L.M. v. J.R. (mem. dec.)

NFP criminal decisions today (5):

Cynthia Bell v. State of Indiana (mem. dec.)

Raymond A. Warren v. State of Indiana (mem. dec.)

Kimberly Galbraith v. State of Indiana (mem. dec.)

Tyrone Tapp v. State of Indiana (mem. dec.)

Johnnie A. Winners v. State of Indiana (mem. dec.)

Posted by Marcia Oddi on February 2, 2016 12:01 PM
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Supreme Court issues two disciplinary opinions Feb. 1st [Updated]

In the Matter of: Jeffrey P. Ayres:

The Court suspended Respondent from the practice of law in this state for continuing legal education (“CLE”) noncompliance, by order issued on June 1, 2015, and effective July 6, 2015. The Disciplinary Commission filed an “Amended Verified Motion for Rule to Show Cause” on November 18, 2015, asserting Respondent practiced law in this state by representing clients while suspended from the practice of law. Specifically, on July 19, 2015, Respondent was retained by a client in a bankruptcy matter, met with the client and discussed his bankruptcy, and was paid a $1,100 cash retainer. Further, on September 21, 2015, Respondent filed an appearance and a motion to recall warrant in Carmel City Court on behalf of a different client. * * *

The Court issued an order to show cause on November 19, 2015, and Respondent filed a response on December 18, 2015. In his response, Respondent admits the material facts recited above. However, Respondent asserts that he sent an unverified letter to the Executive Director of the Commission for Continuing Legal Education on July 2, 2015, requesting an extension of time to complete his CLE requirements and pay the necessary fees, and that he believed that an extension would be granted. Respondent’s professed belief was not reasonable under the circumstances. * * *

Accordingly, we find that Respondent has violated this Court’s order suspending him from the practice of law and that he is guilty of indirect contempt of this Court. * * *

Under the circumstances, the Court concludes that a fine of $500 is sufficient discipline for Respondent’s contempt of court by practicing law while suspended. The Court therefore ORDERS that Respondent be fined the sum of $500.

A second Feb. 1 disciplinary opinion, In the Matter of: John M. Hughes, relates to an individual shown by the Roll of Attorneys to be an attorney in Highland who has resigned. However, the text of the opinion is that of the Ayres opinion; apparently this is an error.

[[Updated] The error has now been corrected, and the Hughes link leads to the proper order. Hughes too was fined $500, although J.David dissented, "believing a larger fine should be imposed." Hughes had resigned from the bar in 2006. From the order:

This Court accepted Respondent’s resignation from the bar of this state on February 27, 2006. The Commission filed a “Verified Petition for Rule to Show Cause” on September 23, 2015, asserting Respondent held himself out as an attorney and practiced law in this state, in violation of his duties as an attorney who has resigned from the bar. More specifically, attached to the Commission’s verified petition is written correspondence signed and sent by Respondent in which he identified himself as “esquire” and “in house counsel” for a construction company and threatened legal action against the recipient if a mechanic’s lien filed against the company was not released.

Posted by Marcia Oddi on February 2, 2016 11:25 AM
Posted to Ind. Sup.Ct. Decisions

Ind. Gov't. - "Farm to fork" concept is target of HB 1267

HB 1267, which passed 2nd reading yesterday, is the focus of an editorial today in the Fort Wayne Journal Gazette, headed "Small-farm threat: Big Ag bill betrays state's agricultural heritage." Some quotes:

Hawkins Family Farm surely fits the image most Hoosiers have of an Indiana farm. Four generations have worked the 99-acre Wabash County farm, most recently nurturing a growing business raising and processing poultry for area restaurants.

But a bill before the General Assembly would prohibit Hawkins from selling to restaurants, ostensibly in the name of food safety.

House Bill 1267 is an effort to protect the market for Big Ag, though. It threatens both the growing farm-to-fork movement and the appeal of farming for a new generation of Hoosiers committed to smaller and safer farming methods.

Under state law, Indiana farmers who raise and process fewer than 20,000 birds a year are exempt from some requirements placed on large-scale producers. Small farms can sell poultry directly to consumers and restaurants, although a farmer who wants to sell to a customer other than an end consumer must obtain a “grant of exemption” from the State Board of Animal Health.

Jeff and Zach Hawkins, the father-and-son team behind Hawkins Family Farm, obtained the exemption last April. To date, theirs is the only one in effect, but Jeff Hawkins said they’ve heard from others interested in following their lead.

The editorial continues at length, and concludes:
The appeal of the farm-to-fork movement is found in the small-scale operation established by the Wabash County farmers. Consumers increasingly want food produced close to home, by farmers they know and trust.

Hawkins Family Farm invested in equipment and poultry stock in good faith, following state regulations. The effort to shut down its sales to Indiana restaurants – a tiny share of agricultural sales statewide – betrays not only our farming roots, but also the promise small-scale farming holds for young Hoosiers interested in embracing that part of Indiana’s history.

The Wabash Plain Dealer on Jan. 27th had a news story by Mackenzi Klemann; here is just a sample:

“One of the things this exemption provides us is the flexibility to butcher our birds based on the birds at the farm, not some third party,” Jeff Hawkins said, noting that farm to fork legislation passed by State Sen. Jim Banks (R-Columbia City), who represents Wabash County, in 2014 led him to begin selling his birds to area restaurants.

After working with the Indiana Board of Animal Health for nearly a year, Hawkins said, he and Zach were able to construct a small slaughter house at the farm to accommodate state regulations and business needs.

Hawkins explained that, for him and his son Zach, who rely on part-time weekend help to slaughter nearly 200 birds per week during the producing season, it’s difficult to transport the birds to state-inspected slaughter facilities.

“We really thought we had a success story,” he said, noting that he believes operations at his farm are safer than those at industrial-scale regulatory slaughterhouses.

But in September of 2015, the Hawkins Family Farm and Joseph Decuis, a Roanoke restaurant, were issued a cease and desist letter from the Indiana State Department of Health after legislators discovered that poultry slaughtered on the farm was being sold to the restaurant without an inspector on-site.

“It’s difficult for me to say hold on, you want to be farm to fork, you want your food to be of good quality, so why wouldn’t you let an inspector on your property,” Leising told the Plain Dealer about the issue. “There wouldn’t be this fight and it would still be farm to fork … it would make it safe under the scientific standards of today.”

The Indiana Attorney General’s Office in November issued a report stating that under current federal and state law, the Hawkins Family Farm could resume the sale of its inspection-exempt poultry, however.

Leising, who is chair of the Senate Agriculture Committee, said that she does not understand why the Hawkins family and area restaurants are fighting so hard against her proposed regulation, filed under Senate Bill 71 and House Bill 1267.

The Hawkins, however, believe operations at their farm are safer than those of industrial-scale operations and question why Indiana legislators are fighting against an innovative movement in agriculture.

“The point that we’re making is that we’re very transparent,” Zach Hawkins said. “The inspector becomes more valuable as the distance between the producer and the consumer grows. We’re not against inspection or regulation … But here, it’s part of a very small system and so some of those regulatory mechanisms that have been developed for a big system don’t apply. Again it doesn’t mean that there shouldn’t be any kind of an inspection system, but what we’re describing, this relationship between producer, consumer and government that amounts to an inspection system, it’s just a different kind.”

“We don’t want to give the impression that somehow we have a perfect system,” Jeff Hawkins said. “We take sanitation very seriously … but when you’re dealing with food, anything can happen anywhere.”

For background, see this Sept. 28, 2015 ILB post quoting a story by Maureen Hayden in the Kokomo Tribune.

Posted by Marcia Oddi on February 2, 2016 09:29 AM
Posted to Indiana Government

Monday, February 01, 2016

Ind. Gov't. - "Nation’s prominent public universities are shifting to out-of-state students"

This is not a revelation; Purdue was one of the trail-breakers. The first ILB post on the shift is from May 25, 2015, quoting a story in the NYT "The Upshot" column, including:

Purdue University cut annual in-state slots for incoming freshmen by more than 500 students, the University of Illinois at Urbana-Champaign by more than 300, and Auburn and Michigan State by more than 200, with each enrolling hundreds of additional out-of-state and international students in their stead.

Replacing in-state with out-of-state students can be easier than raising prices because tuition increases are highly public and are frequently regulated by state legislatures and governing bodies. Universities often have more discretion over the in-state/out-of-state of mix.

Additional ILB posts appeared June 1, 2015 and August 2, 2015.

This weekend Nick Anderson and Danielle Douglas-Gabriel of the Washington Post wrote the story whose headline tops this post. But Purdue is nowhere mentioned. Rather, the lede focuses on the University of Alabama, where "more than 60 percent of entering freshmen now come from out of state." Some quotes:

TUSCALOOSA, Ala. — America’s most prominent public universities were founded to serve the people of their states, but they are enrolling record numbers of students from elsewhere to maximize tuition revenue as state support for higher education withers.

The shift has buttressed the finances and reshaped the profile of schools across the country, from the University of California’s famed campuses in Berkeley and Los Angeles to the universities of Arkansas, Oregon, Missouri, South Carolina and numerous other places. Forty-three of the 50 schools known as “state flagships” enrolled a smaller share of freshmen from within their states in 2014 than they had a decade earlier, federal data show. At 10 flagships, state residents formed less than half the freshman class.

Nowhere is the trend more pronounced than here at the University of Alabama, where students who cheered this month when the Crimson Tide won its fourth national football championship in seven years were mostly from other states.

An accompanying story does mention both Purdue and Indiana University.

Posted by Marcia Oddi on February 1, 2016 06:01 PM
Posted to Indiana Government

Law - "How the government is catching people who use child porn sites"

A sample from Ellen Nakashima's long story in the Washington Post on Jan. 21st:

As criminals become more savvy about using technology such as Tor to hide their tracks, investigators are turning to hacking tools to thwart them. In some cases, members of law enforcement agencies are placing malware on sites that might have thousands of users. Some privacy advocates and analysts worry that in doing so, investigators may also wind up hacking and identifying the computers of law-abiding people who are seeking to remain anonymous, people who can also include political dissidents and journalists.

"As the hacking techniques become more ambitious, failure in execution can lead to large-scale privacy and civil liberties abuses at home and abroad,” said Ahmed Ghappour, a professor at the University of California’s Hastings College of the Law. “It’s imperative that Congress step in to regulate exactly who and how law enforcement may hack.”

But Justice Department officials said that the government investigates crimes based on evidence of illegal activities. “When we obtain a warrant, it’s because we have convinced a judge that there is probable cause that we’ll be able to find evidence in a particular location,” said a senior department official, who spoke on the condition of anonymity under ground rules set by the department.

In the Playpen case, the government activated malware on a site with 215,000 members, as of last February, and obtained Internet protocol addresses of 1,300 computers. Out of that group, the government said it has charged 137 people.

“It’s a lot of people,” said Colin Fieman, a public defender in Tacoma, Wash., who is representing Michaud. “There never has been any warrant I’ve seen that allows searches on that scale. It is unprecedented.”

Posted by Marcia Oddi on February 1, 2016 03:27 PM
Posted to General Law Related

Ind. Courts - Indiana Judges Association makes available the pattern (model) jury instructions

The Indiana pattern jury instructions, available only through Lexis since 2010*, have now been made accessible online, via the new Indiana Judges Association (IJA) website. The annotations and commentary which form a part of the commercial editions is not included in the online versions:

___________
*See July 23, 2010 ILB post for background, along with this Aug. 4, 2015 followup.

Posted by Marcia Oddi on February 1, 2016 02:29 PM
Posted to Indiana Courts

Ind. Decisions - Tax Court posts one today, filed Jan. 29

In DeKalb County Assessor v. Paul L. and Joan E. Chavez, a 7-page opinion, Judge Wentworth writes:

The DeKalb County Assessor challenges the Indiana Board of Tax Review’s final determination reclassifying 2.72 acres of Paul and Joan Chavezes’ land from excess residential to agricultural for the 2013 tax year. The Court affirms the Indiana Board’s decision.

Posted by Marcia Oddi on February 1, 2016 02:10 PM
Posted to Ind. Tax Ct. Decisions

Ind. Gov't. - Briefing complete now in the House email/public records case

Updating this long list of earlier posts, today the appellants filed their 35-page [now 37-page] reply brief in CAC v. Koch. Access it here. [2/3/16 - It now includes missing pages 23-24]

You may access the 53-page brief of appellees Eric Koch and Indiana House Republican Caucus here.

And here again is appellants' brief, filed Nov. 9, 2015.

Posted by Marcia Oddi on February 1, 2016 01:55 PM
Posted to GA and APRA

Ind. Decisions - Court of Appeals issues 1 opinion(s) today (and 1 NFP memorandum decision(s))

For publication opinions today (1):

InKevin T. Scripture, M.D., Richard Mangan, O.D., Judy D. Risch, O.D., and Whitewater Eye Centers, LLC v. Julia and Steven Roberts, a 15-page opinion, Chief Judge Vaidik writes:

A unanimous medical review panel found that the defendant Doctors failed to comply with the appropriate standard of care and their conduct was a factor of the resultant damages to Julia Roberts. The Robertses filed first a complaint and then a motion for summary judgment against the Doctors, designating as evidence the opinion of the medical review panel. In their response, the Doctors designated as expert evidence only their own conclusory affidavits. Months later and the day before the hearing on the Robertses’ summaryjudgment motion, the Doctors filed a motion for leave to supplement their response to the summary judgment motion, designating only their own “supplemental” affidavits, in which they supplemented their original affidavits with facts to support their conclusions. Following the hearing, the trial court granted the Robertses’ motion for summary judgment and denied the Doctors’ motion to supplement. We find that the Doctors’ own affidavits failed to raise a genuine issue of material fact sufficient to defeat summary judgment because the affidavits did not explain the standard of care and include facts showing how the Doctors met that standard. We also find that the trial court did not abuse its discretion in denying the Doctors’ motion to supplement. We therefore affirm.
NFP civil decisions today (0):

NFP criminal decisions today (1):

Darnell Wilson v. State of Indiana (mem. dec.)

Posted by Marcia Oddi on February 1, 2016 01:37 PM
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Transfer list for week ending January 29, 2016

Here is the Clerk's transfer list for the week ending Friday, January 29, 2016. It is two pages (and 25 cases) long.

Three transfers were granted last week:

  • Travis Allen v. State of Indiana - this was a 2-1, Oct. 14, 2015 COA opinion (3rd case. From the dissent:
    Allen informed the trial court of his incarceration in person on the record at the October 2012 pretrial conference. Even if this actual notice of his incarceration was not sufficient to preserve Allen’s Rule 4(C) rights, I believe that Allen’s September 5, 2013 pro se petition was. If these attempts at notification were not sufficient, what else was Allen to do?
  • David P. Allen v. Kimberly W. Allen - this was a July 24, 2015 NFP COA opinion (4th case), where the panel concluded:
    David P. Allen (“Father”) appeals an order that he pay 100% of dental school tuition for Hunter Allen (“Hunter”), his youngest child with Kimberly W. Allen (“Mother”). * * * We reverse and remand for a college expenses order appropriately apportioning the costs between Hunter, her father, and her mother.
  • Mid-America Sound, et al. v. Indiana State Fair Commission, et al. - transfer was granted, with opinion, on Jan. 28. See the ILB summary of the opinion here.
Additionally, there were two cases last week where transfer was denied by a 3-2 vote:
  • J.K. v. State of Indiana - this was an Oct. 29, 2015 NFP COA opinion. Transfer Denied - All Justices concur, except Rucker and David, JJ., who vote to grant the petition to transfer.

  • Lanetra Lockett, et al. v. Planned Parenthood, IN, et al. - this was an Aug. 17, 2015 COA opinion. Transfer Denied - All Justices concur, except Rush, C.J., and Dickson, J., who vote to grant the petition to transfer.

Posted by Marcia Oddi on February 1, 2016 01:01 PM
Posted to Indiana Transfer Lists

Ind. Gov't. - "Cosmetologists in fight over who can be allowed to trim facial hair"

From a story in the Sunday Fort Wayne Journal Gazette, by Niki Kelly:

A flap over facial hair has hit the Indiana Statehouse as cosmetologists fight a legal interpretation that has kept them from putting their clippers on beards and mustaches.

“The whole issue is nonsense,” said Flo Woodward, a longtime instructor at Ravenscroft Beauty College in Fort Wayne with both a barber and cosmetologist license. “Whoever decided this had nothing better to do.”

That someone is the State Board of Cosmetology and Barber Examiners, which in August turned the industry a bit on its head with a decision that reversed decades of practice.

The 3-1 vote said cosmetologists and cosmetology students may not trim or shave beards or mustaches, though barbers can.

The result is House Bill 1172, which reverses that vote by adding shaving or trimming beards and mustaches to the definition of cosmetology.

It passed the House 65-27, but some barbers believe it jeopardizes their businesses. The legislation now moves to the Senate.

Posted by Marcia Oddi on February 1, 2016 09:53 AM
Posted to Indiana Government

Ind. Gov't. - "A handcuffed bill on college police records in Indiana"

Updating this Jan. 14th ILB post about HB 1022, which passed the House on Jan. 21st, Margaret Fosmoe had this lengthy story in Sunday's (Jan. 31) South Bend Tribune. Some quotes:

The sponsors of House Bill 1022 insist they want private universities in Indiana to be more open with police records. The bill, they say, will create a new and stronger level of transparency. And the universities themselves, who helped craft the bill, have said they want to be more open when it comes to public safety.

The bill comes in the wake of controversies about sexual assault investigations on university campuses, as well as a lawsuit by media giant ESPN on whether police records by the University of Notre Dame should be public.

So would the bill really meet the bar its proponents tout? How much more open will the records of police forces at Indiana’s private universities really be?

In the case of one key player, Notre Dame, the answer apparently is not much more at all.

The Notre Dame Security Police department handles hundreds of calls, complaints and cases each year. But of all those, House Bill 1022 would apply to a relatively small number.

That’s because the bill does not hold private universities to the same standard as municipal police departments. It limits what information would need to be publicly released only to incidents that result in arrests or incarcerations for criminal offenses.

At Notre Dame over the past two years, the total number of arrests was 126 — or about 60 per year, according to university spokesman Dennis Brown. That represents just a fraction of incidents handled by Notre Dame police. In 2015 alone, nearly 1,300 cases were listed on the university police crime log.

What kinds of incidents would be exempt from the proposed law? In recent years at the university, for example, a student died when the scissor lift on which he was filming a football practice fell to the ground; a man on a crew cutting down trees on campus was killed by a falling tree; and a man was critically injured when he fell down a stairwell in the university’s Main Building.

In all the cases, NDSP investigated, but those matters didn’t make the campus police log, there were no police reports released and only limited details were made available to the public. House Bill 1022 would not appear to make a difference in such cases.

And even in a case leading to an arrest, the bill does not specify what level of detail must be included in reports to be made public.

Another provision in House Bill 1022 mandates that records already required to be open under federal law need to also be open in Indiana. It cites two federal laws: the Family Educational Rights and Privacy Act of 1974, and the Clery Act — which already require all colleges that participate in federal financial aid programs to disclose some information about crimes on and near their campuses. It’s not clear what new measure or step House Bill 1022 is offering in these cases.

Critics such as Steve Key, executive director and general counsel of the Hoosier State Press Association, have argued that the bill falls well short of creating a new level of transparency for university police forces.

Questions also have surfaced about the fact that the Independent Colleges of Indiana, of which Notre Dame is a member, helped legislators write the bill — and that some of the legislators sit on the group’s board.

“It appears that what Independent Colleges of Indiana did when they helped draft this bill is codify what they are already required to report under the federal Clery Act,” Key said.

Richard Ludwick, president of Independent Colleges, maintains that the proposed legislation is a “sea change for our institutions and for Indiana.”

“The big picture here is that records that in the past were not public according to Indiana statute, now would be,” he said in an email.

The bill would apply only to private universities with professional police departments. That includes 10 institutions: Notre Dame, Valparaiso, Butler, Anderson, Taylor, Huntington, Indiana Wesleyan, Marian, DePauw and the University of Indianapolis. It wouldn’t apply to smaller colleges served by campus security officers.

There is much more in the story.

Posted by Marcia Oddi on February 1, 2016 08:41 AM
Posted to Indiana Government

Ind. Gov't. - Last week for bills in the first house

Wednesday is the last day a bill may pass third reading in the first house.

Here is the Senate calendar for today; it includes 108 entries and the bills are live-linked. The Senate convenes at 1:30.

Among the bills on 2nd reading is bias crimes (SB 220), abortion matters (SB 313), civil rights (SB 344), Marion County superior court (SB 352). Among the bills on 3rd reading is Uniform Fiduciary Access to Digital Assets Act (SB 253), funding of lawsuits (SB 353).

Here is the House calendar for today; it includes 66 entries and the bills are live-linked. The House also convenes at 1:30.

Among the bills on 2nd reading is "no more stringent" (HB 1082), abortion matters (HB 1337), alcoholic beverage matters (Including Dunes pavilion) (HB 1247).

Tomorrow is the last day for a bill to pass 2nd reading in the first house. Both houses will convene at 10 AM on Tuesday and Wednesday.

Posted by Marcia Oddi on February 1, 2016 08:12 AM
Posted to Indiana Government

Ind. Decisions - Upcoming oral arguments this week and next

This week's oral arguments before the Supreme Court (week of 2/1/16):
  • No oral arguments currently scheduled [the 2 initially scheduled for this Friday, Feb. 5th have now been moved ahead one week]
Next week's oral arguments before the Supreme Court (week of 2/8/16):

Thursday, February 11

  • 9:00 AM - Kevin Ammons v. State of Indiana (45A03-1411-CR-394) Kevin Ammons petitioned the Lake Superior Court for removal of the requirement that he register as a sex offender in Indiana, contending the requirement violated his rights under the Indiana Constitution’s ex post facto clause. The trial court first granted Ammons’s petition, but later denied it after a hearing on the Attorney General’s motion to correct error. The Court of Appeals affirmed in a divided opinion. Ammons v. State, 36 N.E.3d 1079 (Ind. Ct. App. 2015). Ammons has petitioned the Supreme Court to accept jurisdiction over the appeal.

    ILB: This was a 2-1, June 17, 2016 COA opinion (2nd case).

  • 9:45 AM - Samuel Sallee v. State of Indiana (03S00-1504-LW-00237) After a jury found Sallee guilty of four counts of murder and recommended life imprisonment without parole, the Bartholomew Circuit Court sentenced Sallee to life imprisonment without parole on each count. In this direct appeal, Sallee argues that the evidence was not sufficient to prove his guilt beyond a reasonable doubt.
Webcasts of Supreme Court oral arguments are available here.


This week's oral arguments before the Court of Appeals (week of 2/1/16):

  • No arguments currently scheduled.

Next week's oral arguments before the Court of Appeals (week of 2/8/16):

Wednesday, February 10

  • 2:00 PM - Graphic Packaging International, et al v. City of Indianapolis, et al (49A04-1504-PL-165) The appellants filed a complaint against the City of Indianapolis, challenging the validity of an amendment to a contract regarding the construction of a waste disposal facility and the "dirty recycling" that will occur at that facility. The plaintiffs argue that the City failed to comply with public bidding and public notice procedures and that the contract exceeds the statutory limit of 40 years. The trial court granted summary judgment in favor of the government, finding that the plaintiffs did not have standing to bring the complaint and also finding against the plaintiffs on the merits. The appellants now appeal the summary judgment order.

    The Scheduled Panel Members are: Judges Baker, Bradford and Pyle. [Where: Indiana Supreme Court courtroom]

Thursday, February 11

  • 1:00 PM - Tyrone Grayson v. State (49A05-1505-CR-350) Tyrone Grayson ("Grayson") was convicted in Marion Superior Court of Class B felony unlawful possession of a firearm by a serious violent felon. The firearm at issue in this case was obtained as the result of a Terry stop. Before trial, Grayson moved to suppress the firearm found in his possession and argued that the law enforcement officers lacked reasonable suspicion to make an investigatory stop of Grayson's vehicle. During his bench trial, Grayson objected to the admission of the firearm found in his possession on the grounds raised in his motion to suppress and also argued that the information provided by the anonymous tipster was insufficient to support the investigatory stop. The trial court overruled Grayson's objection. Grayson appeals his conviction and argues that the trial court abused its discretion when it admitted the firearm into evidence because the investigatory stop violated his right to be free from unreasonable search and seizure under the Fourth Amendment of the United States Constitution.

    The Scheduled Panel Members are: Judges Kirsch, Mathias and Bradford. [Where: IU McKinney School of Law, Wynne Courtroom, Inlow Hall, Indianapolis, IN]

ONLY those Court of Appeals oral arguments presented in the Supreme or Court of Appeals Courtrooms generally 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.

Posted by Marcia Oddi on February 1, 2016 08:08 AM
Posted to Upcoming Oral Arguments

Friday, January 29, 2016

Ind. Decisions - Court of Appeals issues 5 opinion(s) today (and 38 NFP memorandum decision(s))

For publication opinions today (5):

In Carrie A. Greer v. Discover Bank , a 5-page opinion with a pro se appellant, Judge Najam writes:

Carrie A. Greer appeals the trial court’s entry of default judgment against her and in favor of Discover Bank (“Discover”). Greer raises a single issue for our review, namely, whether the trial court erred when it concluded that Greer had been adequately served with a summons and Discover’s complaint against her. However, because Greer did not follow the proper procedure for perfecting her appeal of this issue, we are obliged to dismiss the appeal. * * *

Greer did not file a Trial Rule 60(B) motion for relief from the trial court’s entry of default judgment against her. Accordingly, her appeal is not properly before us. Siebert Oxidermo, 446 N.E.2d at 337.

In Jason Hansbrough v. State of Indiana , a 9-page opinion, Judge Crone writes:
Jason Hansbrough appeals his conviction, following a bench trial, for unlawful possession of a firearm by a serious violent felon, a level 4 felony. During a valid traffic stop of Hansbrough’s vehicle, police officers conducted a dog sniff around the vehicle. After the canine alerted to the presence of narcotics, officers searched the vehicle and found a firearm. Hansbrough unsuccessfully moved to suppress the evidence obtained during the search arguing that the dog sniff prolonged the traffic stop in violation of his constitutional rights. The evidence was subsequently admitted at trial over his continuing objection. The sole restated issue for our review is whether the trial court abused its discretion in admitting the evidence obtained as a result of the search. Finding no abuse of discretion, we affirm.
In Ronald L. Sanford, Jr. v. State of Indiana , an 11-page opinion, Judge Crone writes:
Ronald L. Sanford, Jr., appeals the denial of his petition for permission to file a belated notice of appeal of his sentence filed pursuant to Indiana Post-Conviction Rule 2. He argues that the trial court abused its discretion in finding that he had failed to carry his burden to prove that he was diligent in requesting permission to file a belated notice of appeal. He also argues that pursuant to In re Adoption of O.R., 16 N.E.3d 965 (Ind. 2014), his right to appeal should be restored due to extraordinarily compelling reasons.

We conclude that the trial court did not abuse its discretion in denying Sanford’s petition for permission to file a belated notice of appeal. We also conclude that O.R. need not be extended to criminal defendants who already have a remedy for reinstating an untimely appeal through Post-Conviction Rule 2. Therefore, we affirm.

In Willie Moore v. State of Indiana , a 28-page, 2-1 opinion, Judge Pyle writes:
We conclude that: (1) the officer had reasonable suspicion to stop Moore, so the stop was lawful under the United States Constitution; (2) the officer’s actions were reasonable under the totality of the circumstances, so the stop was lawful under the Indiana Constitution; and (3) the Illinois statute for residential burglary was substantially similar to the Indiana statute for burglary. However, we agree with Moore that there was not sufficient evidence to elevate his resisting law enforcement conviction to a Level 6 felony because there was no evidence that he proximately caused the officer’s injuries. As a result, we affirm Moore’s conviction for unlawful possession of a firearm by a serious violent felon, but we reverse his conviction for resisting law enforcement as a Level 6 felony. We remand to the trial court with instructions to vacate Moore’s resisting law enforcement conviction and to enter a new conviction and sentence for the lesser-included offense of Class A misdemeanor resisting law enforcement. We affirm in part, reverse in part, and remand. * * *

Baker, J., concurs.
Bradford, J., concurs in part, dissents in part with opinion. [which begins, at p. 26] I concur with the majority’s conclusion that the trial court acted within its discretion in admitting the handgun discovered on Moore’s person into evidence. I also concur with the majority’s conclusion that the Illinois statute for residential burglary was substantially similar to the Indiana burglary statute. However, because I believe that the evidence was such that the trial court, acting as the trier-of-fact, could reasonably conclude that Moore’s actions were the proximate cause of Officer Helmer’s injury, I respectfully dissent from the majority’s conclusion that the evidence was insufficient to sustain Moore’s conviction for Level 6 felony resisting arrest.

In Kimberly Y. Morgan v. State of Indiana, a 6-page opinion, Judge Bailey writes:
Kimberly Y. Morgan (“Morgan”) appeals a restitution order following her pleas of guilty to three counts of Theft, as Class D felonies. She presents the issue of whether the trial court properly ordered her to pay $16,000.00 to the Howard County Convention and Visitors Commission, Inc. (“the Visitors Commission”), in addition to the $11,455.48 agreed-upon restitution to Selective Insurance Company of America (“Selective Insurance”). We affirm in part, reverse in part, and remand with instructions.
NFP civil decisions today (15):

In the Matter of the Termination of the Parent-Child Relationship of N.A., Mother, and M.A., Father, and A.A., B.A., C.A., N.A., et al. v. Indiana Department of Child Services (mem. dec.)

Timothy Hipskind v. Insurance One Services, Inc., and David Vanderpool (mem. dec.)

Brian L. Cain, Nancy Ilderton and Wells Fargo Advisors, LLC v. Old National Bancorp, Inc. (mem. dec.)

Anthony Fisher v. Thomas VanVleet and Dustin Gary (mem. dec.)

In the Matter of the Involuntary Term. of Parent-Child Relationship of L.D., D.B. (Father) v. Marion Co. Dept. of Child Services, and Child Advocates Inc. (mem. dec.)

In re the Matter of H.M., a Child In Need of Services, A.A. (Mother) v. The Ind. Dept. of Child Services (mem. dec.)

A.B. v. Review Board of the Department of Workforce Development (mem. dec.)

John D. May v. Indiana Department of Child Services, Carrie T. Ingram, and Direnda Winburn (mem. dec.)

In the Matter of J.C. and K.C., Children in Need of Services, and J.S. (Mother) and M.S. (Stepfather) v. Indiana Department of Child Services (mem. dec.)

In the Matter of the Termination of the Parent-Child Relationship of T.S., Father, and N.B., Child, T.S. v. Indiana Department of Child Services (mem. dec.)

In Re The Marriage Of: Mark Steven Brown v. Julie Brown (mem. dec.)

In the Matter of the Term. of the Parent-Child Relationship of A.C., C.C., N.C., Sk.C, Sa,C., Sh.C., & E.F. and F.F. and S.C. v. The Ind. Dept. of Child Services (mem. dec.)

In the Matter of the Involuntary Termination of the Parent-Child Relationship of S.L. (Minor Child), and M.C. (Father) v. The Indiana Department of Child Services (mem. dec.)

Peggy Bull d/b/a Brown County Getaway v. Brown County Area Board of Zoning Appeals (mem. dec.)

In the Matter of the Term. of the Parent-Child Relationship of: I.H., A.H., E.H., and F.H., Minor Children, and J.H., Mother v. The Ind. Dept. of Child Services (mem. dec.)

NFP criminal decisions today (23):

John Mazurak v. State of Indiana (mem. dec.)

Hubert Charles v. State of Indiana (mem. dec.)

Douglas L. Wilson, Jr. v. State of Indiana (mem. dec.)

David Michael Jones v. State of Indiana (mem. dec.)

Christopher R. Marks v. State of Indiana (mem. dec.)

Jayson S. Roberts v. State of Indiana (mem. dec.)

T.J. v. State of Indiana (mem. dec.)

William Church v. State of Indiana (mem. dec.)

Anthony L. Hall v. State of Indiana (mem. dec.)

Kenneth L. Shafer v. State of Indiana (mem. dec.)

Sherry A. Fairchild v. State of Indiana (mem. dec.)

Bradley J. Harris v. State of Indiana (mem. dec.)

Lyle M. Moser v. State of Indiana (mem. dec.)

Paris Hardy v. State of Indiana (mem. dec.)

Donald Wilson v. State of Indiana (mem. dec.)

Daniel Killin v. State of Indiana (mem. dec.)

Sallye Purnell v. State of Indiana (mem. dec.)

Latanya T-Butler v. State of Indiana (mem. dec.)

Steven A. Bird v. State of Indiana (mem. dec.)

Aaron Cannon v. State of Indiana (mem. dec.)

Larry Owens v. State of Indiana (mem. dec.)

Lisa A. Medsker v. State of Indiana (mem. dec.)

Lyle D. Tucker v. State of Indiana (mem. dec.)

Posted by Marcia Oddi on January 29, 2016 11:39 AM
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Right to Farm Act prevails in Randolph County lawsuits, yet again

In July of 2014, the ILB has three posts under the heading "Right to Farm Act prevails in Randolph County lawsuits."

A related, 2-page ruling was issued by Special Judge Marianne Vorhees on Jan. 28th, 2016, an order granting defendants' motions for summary judgment in a 5th Maxwell Farms case, stating:

The Court held a hearing on the Defendants' Motions for Summary Judgment on January 18, 2016, and took the Motions under advisement.

As to all Defendants, the Motions for Summary Judgment are well taken and should be and hereby are granted.

Plaintiffs have not presented any evidence to establish an exception to the Indiana Right to Farm Act.

The ILB was also able to obtain a copy of the defendants' 55-page memorandum in support of their summary judgement motion. See particularly the argument beginning at the bottom of p. 6, asserting that Indiana's Right to Farm Act is a statute of repose and bars plaintiffs' claims after one year.

Posted by Marcia Oddi on January 29, 2016 10:49 AM
Posted to Environment | Ind. Trial Ct. Decisions

Ind. Gov't. - More on "Discord ongoing over LGBT bill" - is something better than nothing?

Updating this long ILB post from yesterday, summarizing media reports on the marathon first committee hearing on SB 344, Stephanie Wang and Tony Cook of the Indianapolis Star have an interesting story that begins:

A day after a gay rights proposal got its first nod from lawmakers, the leader of the Indiana House put a damper on the measure's chances.

“I’ve yet to talk to someone who thinks the bill is a good idea, with just a couple of few exceptions,” House Speaker Brian Bosma said Thursday.

He also set an unusually high bar for the measure to get an initial hearing in the House — if it even advances that far.

Such a decision is typically left to the chairman of the House committee to which the bill is assigned. But in this case, Bosma said there won’t be a hearing unless the House Republican caucus — which has 71 members — decides it’s a good idea.

“The one thing we have decided on this is we’re going to have a firm caucus discussion about this and the caucus will decide if the bill is going to proceed or not,” he said.

His comments came less than 24 hours after a Senate panel voted to advance the measure, Senate Bill 344, to the full Senate. Only if the proposal clears the Senate would it move to the House.

The bill would add some protections against discrimination for gay Hoosiers in the areas of housing, employment and public accommodations. But it does not include protections for transgender people and it would still allow small wedding service providers, some adoption agencies and religious-affiliated organizations to discriminate based on sexual orientation.

Posted by Marcia Oddi on January 29, 2016 09:47 AM
Posted to Indiana Government

Ind. Courts - All 30 Supreme Court applications available in SC Law Library for review.

Here is the photo/tweet supplied by the Indiana Courts. As in the past, the ILB will be reviewing and summarizing for ILB readers:

Posted by Marcia Oddi on January 29, 2016 09:36 AM
Posted to Indiana Courts | Vacancy on Supreme Court - 2016

Ind. Courts - "Bill would create new way to select Marion County judges"

SB 352, addressing the issue of selection of Marion County Superior Court judges, post the 7th Circuit opinion, Common Cause v. Election Comm. (see this Jan. 9 IBJ article on the Marion County court issues and this Sept. 9th ILB post), was heard in Senate Judiciary Committee on Jan. 27th. The complexity of the bill, authored by Senator Michael Young, was increased by the addition of committee amendments, which now may be accessed via this DPA committeee report. The introduced version of SB 252 is here, the two documents must be read together until the bill is reprinted. However, the author testified at the committee hearing Wednesday that this bill was still a work in progress, that he planned to confer with the Chief Justice and that revisions likely would be offered on 2nd reading.

Kristine Guerra of the Indianapolis Star reports today on the bill. Some quotes:

Marion County's pay-to-play system of electing its judges has long been criticized as being highly political and an infringement on people's right to vote.

A new bill being debated in the legislature attempts to address some of that criticism by creating a new way of selecting judges in Marion County. Senate Bill 352, authored by Sen. R. Michael Young, forms a selection committee that will select and nominate judges. Once the judges' six-year term is over, voters can decide through primary and general elections whether or not they can stay on the bench.

Supporters say it's a well-balanced approach that gives voters, party leaders and members of the legal community some control over who should be Marion County's 36 superior court judges. But opponents say it does not alleviate a major problem in the current system: Political interests still play too much of a role in what's supposed to be a neutral and impartial judiciary.

What's highly criticized is the selection committee, which critics say is too top heavy with political actors. * * *

Under SB 352, the committee initially will appoint judges. Retention elections, in which voters will be asked if judges should stay on the bench, will be held once their six-year term is over. If a judge loses or chooses to not run, the committee will appoint someone to the open seat. If a judge resigns, the committee will nominate two candidates from a pool of applicants, and the governor will make the final decision.

Changing the status quo became necessary, after a federal judge ruled that the current judicial election system is unconstitutional. The 7th U.S. Circuit Court of Appeals upheld that ruling.

Unlike the rest of the state, Marion County elects only party-slated judges. The two major political parties conduct primary elections in which they nominate candidates for the exact number of judicial seats to be filled — split evenly between Democrats and Republicans. By contributing money to their respective parties, the judicial candidates have a much better chance of securing an endorsement and winning a judicial seat in the election.

Julia Vaughn, policy director for Common Cause Indiana, said while Young's bill does give voters some say, it still firmly entrenches politics in the process of selecting judges. * * *

Vaughn, whose organization started the legal battle that eventually invalidated Marion County's judicial election process, said a merit selection system used in St. Joseph and Lake counties is more appropriate. Under that approach, a judicial nominating commission made up of lawyers and laypeople interviews applicants and recommends candidates to the governor, who makes the final decision. * * *

Young said Wednesday that he planned to meet with Loretta Rush, chief justice of the Indiana Supreme Court, to ensure SB 352 meets the state's Code of Judicial Conduct.

The Senate Judiciary Committee approved the bill in a 5-2 vote, and it will up for a second reading on the Senate floor.

Posted by Marcia Oddi on January 29, 2016 09:04 AM
Posted to Indiana Courts

Thursday, January 28, 2016

Ind. Decisions - Supreme Court decides one today - re 2011 State Fair stage collapse

In In Re: Indiana State Fair Litigation, Mid-America Sound Corporation v. Indiana State Fair Commission, et al., Jill Polet, et al., an 11-page, 5-0 opinion, Chief Justice Rush writes:

Indiana courts strictly construe contracts to indemnify a party against its own negligence—recognizing that a party would not lightly accept liability for someone else’s negligence. Thus, indemnity clauses must state the parties’ intent to indemnify in clear and unequivocal language. Otherwise, we will not find a knowing and willing agreement to indemnify. And the need for explicit language is especially important when an agreement involves retroactive indemnity—since even in insurance contracts, where indemnity is the central purpose, we presume that insurers would not accept liability for a known, existing loss.

Here, Mid-America Sound argues that the Indiana State Fair Commission accepted liability for an existing, catastrophic loss—not through explicit contract language calling for retroactive indemnification, but through a years-long course of conduct in paying invoices that had standard indemnity language on the back. But as a matter of law, a form of liability so disfavored (especially when retroactive) cannot be implied from a course of dealing when it is not expressed by clear and unequivocal contract language. We therefore grant transfer and affirm the trial court’s grant of summary judgment for the Commission. * * *

Mid-America and the Commission proceeded to file cross-motions for summary judgment, taking opposite positions about whether the December 2011 invoice’s indemnity language applied retroactively to the August 2011 roof collapse. The trial court granted the Commission’s motion, and Mid-America appealed. A divided Court of Appeals reversed and remanded, finding that genuine issues of material fact existed regarding whether the Commission knowingly and willingly agreed to indemnify Mid-America for the roof collapse. In re Ind. State Fair Litigation, 28 N.E.3d 333, 343 (Ind. Ct. App. 2015). * * *

In summary, then, the principle we deduce from Indiana contract law (and confirmed by the States that follow similar principles) is this: Indemnification for another party’s negligence—especially retroactively—is an “extraordinary obligation” that is generally “not favored.” Emmet Fertilizer, 852 F.2d at 360. Accordingly, as a matter of law, we will not infer that obligation from a course of dealing when, as here, the parties’ contract does not expressly call for it in “clear and unequivocal terms.” GKN Co., 798 N.E.2d at 552. The trial court therefore correctly granted summary judgment for the Commission and against Mid-America.

In view of that conclusion, we express no opinion on whether the Commission is a govern-mental entity with immunity under the Indiana Tort Claims Act (ITCA), Ind. Code ch. 34-13-3; whether indemnity for another party’s negligence is a tort- or contract-based liability for ITCA purposes; or whether the invoices’ indemnity language is void against public policy. But those arguments do illustrate why Mid-America’s failure to make a “clear and unequivocal” demand for retroactive indemnification is particularly significant in these circumstances. Regardless of their merits, those claims are not implausible—and therefore it seems that a party seeking to impose such a disfavored liability under these circumstances would have particular incentive to draft its contract in the clearest and most unequivocal terms possible. Mid-America’s failure to do so here further underscores why we should not infer an extraordinary liability when a contract fails to provide for it expressly.

Conclusion. The terms of Mid-America’s invoices to the Commission did not clearly and unequivocally provide for retroactive application, and as a matter of law, we will not infer such an onerous provision from the parties’ course of dealing. We therefore affirm the trial court’s grant of summary judgment to the Commission.

ILB: The ILB has a list of posts related to the State Fair stage collapse.

Posted by Marcia Oddi on January 28, 2016 03:11 PM
Posted to Ind. Sup.Ct. Decisions | Stage Collapse

Ind. Gov't. - "Proposed abortion ban for gender, fetal disability advances"

Chelsea Schneider has the story here today in the Indianapolis Star. The story begins:

A group of Republican lawmakers are reprising an effort to ban abortions in the state based on gender or disabilities in a fetus, a controversial and possibly unconstitutional prohibition that failed last year in the Indiana General Assembly.

The proposal would ban abortions if the reason for seeking one is “solely” because of the sex of a fetus. The ban also would apply to women seeking an abortion if her fetus is diagnosed, or potentially diagnosed, with Down syndrome or another genetically-inherited disability.

The bill, which cleared a Senate committee Wednesday, would add to the state’s abortion restrictions, which already are among the most stringent in the country. State law currently restricts most abortions after 20 weeks of pregnancy. The bill, by state Sens. Travis Holdman and Liz Brown, is moving forward, while another measure that would restrict abortions once a fetal heartbeat is detected has stalled.

Brown, a Fort Wayne Republican, is running in a heated Republican primary for Indiana’s Third Congressional District. Her campaign sent an email to supporters celebrating the passage of Senate Bill 313 after it cleared committee by a 7-4 vote.

Brown said the bill is needed, because doctors are “pressuring women to have these abortions.”

More from the story:
However, Sen. Vaneta Becker said the bill is “clearly unconstitutional.”

Becker, an Evansville Republican, noted the U.S. Supreme Court has declined to consider overruling lower court decisions that found abortion restrictions early in a pregnancy were unconstitutional. That includes a case in North Dakota where a lower court ruled an abortion ban after a fetal heartbeat is detected — as early as six weeks in pregnancy — was unconstitutional.

Doing so means the Supreme Court has effectively upheld Roe v. Wade, the landmark ruling that legalized abortion in the country, Becker said. States face restrictions in banning abortions before a fetus could survive outside the womb.

Banning abortions based on gender and disability sets a “dangerous precedent,” Becker said.

“This bill does nothing to improve or protect women’s health,” Becker said. “This bill is just clearly a bill designed with a broader agenda … to shame and judge women.”

The Supreme Court refused to take up the case from North Dakota, and a separate 12-week ban out of Arkansas, presumably because “neither law would be able to withstand constitutional scrutiny,” said Elizabeth Nash with the Guttmacher Institute. The organization is a sexual and reproductive health advocacy group.

Posted by Marcia Oddi on January 28, 2016 02:21 PM
Posted to Indiana Government

Ind. Courts - More on: State's brief now filed in Purvi Patel appeal of conviction for feticide, child neglect

Updating this ILB post from Dec. 10th, the Court of Appeals yesterday filed an order granting and scheduling order argument in the case of Purvi Patel v. State.

The Court of Appeals oral argument will take place Monday, May 23, 2016 at 2:00 PM in the Supreme Court Courtroom. The scheduled panel members are Chief Judge Vaidik, Judges Bailey, and
Crone.

The ILB has had a long list of posts on this case, involving Purvi Patel's appeal of her feticide and child neglect conviction.

Posted by Marcia Oddi on January 28, 2016 01:29 PM
Posted to Indiana Courts

Ind. Decisions - 7th Circuit decides one Indiana case today

In United States v. Terry Joe Smith (SD Ind., Lawrence), an 8-page opinion, Judge Posner writes:

Terry Joe Smith, a police officer in Putnam County, Indiana (roughly midway between Indianapolis and Terre Haute), was convicted by a jury in federal court of violating 18 U.S.C. § 242 by depriving two persons, under color of state law (which is to say in Smith’s capacity as a police officer), of their constitutional right not to be subjected to the intentional use of unreasonable and excessive force. Sentenced to 14 months in prison to be followed by two years of supervised release, Smith appeals his conviction and the government appeals his sentence, the brevity of which, it contends, the judge failed to justify. * * *

In short, does the judge’s review of these cases provide any basis for thinking 14 months a proper sentence for Smith? Apart from the judge’s reference to anger management and comments on Smith’s minor good works in the community, no reason for the light sentence he imposed can be found in the transcript of the sentencing hearing.

We add that the judge imposed the standard conditions of supervised release without stating them in the sentencing hearing. That was error too; the entire sentence must be given orally. E.g., United States v. Harper, 805 F.3d 818, 822 (7th Cir. 2015).

Conviction affirmed, sentence vacated, case remanded for full resentencing.

Posted by Marcia Oddi on January 28, 2016 12:09 PM
Posted to Ind. (7th Cir.) Decisions

Ind. Decisions - Court of Appeals issues 0 opinion(s) today (and 5 NFP memorandum decision(s))

For publication opinions today (0):

NFP civil decisions today (3):

In the Matter of: B.C., a Child in Need of Services, T.C. (Mother) and W.J. (Alleged Father #1) v. Indiana Department of Services and Child Advocates, Inc. (mem. dec.)

Jill Yount v. Robert L. Houston and Houston & Thompson (mem. dec.)

Susan F. McCall v. City of Washington (mem. dec.)

NFP criminal decisions today (2):

Michael S. Washington v. State of Indiana (mem. dec.)

Javonieo White v. State of Indiana (mem. dec.)

Posted by Marcia Oddi on January 28, 2016 12:02 PM
Posted to Ind. App.Ct. Decisions

Ind. Courts - More on: Lawsuit claims RFRA "fix" and ordinances passed pursuant thereto are invalid

Updating this ILB post from Dec. 10th, Olivia Covington reports today in the Columbus Indiana Republic under the heading "City named in RFRA lawsuit." Some quotes from the lengthy story:

Columbus and its Human Rights Commission are being sued over the city’s human rights ordinance, which has protections for lesbian, gay, bisexual and transgender residents.

Terre Haute-based Bopp Law Firm added the city, the commission and its commissioners, as well as Bloomington and its human rights commission and commissioners, as defendants to an existing lawsuit challenging the legislative fix to last year’s Religious Freedom Restoration Act (RFRA). That lawsuit initially was filed in late 2015 in Hamilton County, attorney Jim Bopp said.

The original lawsuit named Carmel and the city of Indianapolis-Marion County as defendants. All cities included in the lawsuit have nondiscrimination ordinances that protect LGBT residents while allowing for limited or no exceptions for religious beliefs.

Bopp filed the complaint on behalf of the plaintiffs, Indiana Family Institute, Indiana Family Action and The American Family Association of Indiana.

The groups contend that the version of RFRA in effect does not protect their constitutionally-held religious beliefs to oppose gay marriage, Bopp said. * * *

After national backlash, lawmakers amended the bill to prohibit LGBT discrimination while also providing exceptions for churches, religious schools and ministers.

The Indiana Family Institute, Indiana Family Action and American Family Association of Indiana would not qualify for those exemptions, Bopp said. That means the government could compel them to provide some services to gay couples that would go against their religious beliefs.

Additionally, Bopp said the RFRA fix favors some religious beliefs regarding same-sex marriage over others.

“The Unitarian views get preferred over the Catholics,” he said.

Similarly, the ordinances in place in the four cities named in the lawsuit would also not allow the groups to freely express their religious beliefs, Bopp said.

Posted by Marcia Oddi on January 28, 2016 09:29 AM
Posted to Indiana Courts

Ind. Gov't. - Updating: Still more on "No more stringent" back again

Updating yesterday's ILB post, the AP reports today (here from the $$ Bloomington Herald-Times):

INDIANAPOLIS — Legislation that would prohibit Indiana state agencies from enacting tougher environmental rules and standards than the federal government narrowly won the backing of a state House committee on Wednesday following a discussion that invoked the water crisis in Flint, Michigan.

The House Environment Affairs Committee voted 7-6 to send the legislation authored by its chairman, Rep. David Wolkins, R-Winona Lake, to the full House for consideration.

Wolkins, who has sponsored several similar bills over the years, said he's hopeful this measure will pass the House and won't stall in the Senate, where previous versions have never been brought to a vote.

Wolkins said he's been pleased with Indiana's environmental regulations for more than a decade under Republican governors but believes his bill is needed in the event that future state regulators, presumably under Democratic governors, "overreach" and impose tough environmental rules, which he said could stifle economic development.

Hoosier Environmental Council staff attorney Kim Ferraro told the panel that the legislation is unnecessary because existing state law has checks and balances that ensure the Indiana Department of Environmental Management and the state's Environmental Rules Board "do not overreach and impose regulations that cause undue, unnecessary" burdens on industry.

Posted by Marcia Oddi on January 28, 2016 09:17 AM
Posted to Environment | Environment

Ind. Gov't. - "Discord ongoing over LGBT bill"

The revised text of the SB 344, reflecting last evening's amendments, will not be available until later today. [Updated at 5:28 PM] Here is the adopted committee report with the amendments made last evening.

Some quotes from Niki Kelly's story today in the Fort Wayne Journal Gazette:

Pretty much no one got what they wanted late Wednesday when the Senate Rules Committee voted 7-5 to pass a bill providing limited discrimination protections to gay, lesbian and bisexual Hoosiers.

Democrats said Senate Bill 344 is unacceptable because it leaves transgender citizens out of the bill entirely and provides too many exemptions for Hoosiers to deny service in the name of faith.

But social conservatives argued it goes too far elevating sexual orientation to protected-class status and sets up Hoosier businesses to be fined and sued for standing by religious beliefs.

Republicans on the committee voted in support – except Sen. Dennis Kruse, R-Auburn – to keep the process moving, but many are looking for changes.

“It’s a tough issue. It’s remarkable that we are even having this discussion,” said Senate President Pro Tem David Long, R-Fort Wayne.

He also noted that there will be robust debate on the Senate floor and the bill’s “fate is unknown.”

About 40 people testified on the legislation over four hours. * * *

[One speaker said] exemptions in the bill should not be any broader than they are for race and other protected categories, such as gender and national origin.

But the current bill does just that, carving out cases in which small businesses – those with fewer than six employees – can legally refuse to provide services related to the solemnization, rehearsal, reception, celebration or social event for a marriage ceremony, renewal of marriage vows or marriage anniversary.

The author, Sen. Travis Holdman, R-Markle, said this is a way to recognize Indiana’s strong freedom of conscience and religious liberty protections.

Opponents of the legislation flew in two business owners from Oregon and Washington who have violated anti-discrimination laws by refusing to provide flowers or cake for a same-sex marriage. * * *

Indiana law doesn’t provide anti-discrimination protections for sexual orientation or gender identity the way it does for other classes such as gender, race and national origin.

That means in much of the state, landlords, employers and businesses are free to openly discriminate against gays.

There are more than a dozen cities – including Fort Wayne – with local protections, though they vary in scope and enforcement. The bill would leave in place those local human rights ordinances passed before Jan. 1.

“You can say ‘you’re gay. You’re fired,’ ” Indiana Chamber of Commerce President Kevin Brinegar said. “That’s wrong.”

He supports a stronger bill due to the profound and ongoing impact on the state’s ability to attract jobs, investment and skilled workers as a result of last year’s national firestorm over religious rights. But he said this version is a step in the right direction.

Eric Miller, who heads the religious-based Advance America, said it is impossible for legislators to both protect faith and extend civil rights to LGBT Hoosiers.

“A vote for this bill is a vote against religious liberty,” he said.

The panel also threw a curve­ball into the mix by adding an amendment to eliminate the state Religious Freedom Restoration Act – and its fix – passed last year.

Sen. Brandt Hershman, R-Buck Creek, said the language essentially reverts Indiana back to the previous status before the RFRA fight. Specifically, it codifies a legal standard the Indiana Supreme Court made precedent in 2001 protecting religious freedom.

Democrats supported that amendment but all voted against the bill.

“We can’t send a message that we only allow a little discrimination,” said Sen. Tim Lanane, D-Anderson.

Tony Cook, Chelsea Schneider and Stephanie Wang of the Indianapolis Star report:
A bill that would provide some protections for lesbians, gays and bisexuals — but not transgender Hoosiers — squeaked out of an Indiana Senate committee Wednesday night.

But no one on any side of the highly contentious debate seems particularly pleased with the heavily amended measure, which faces an uncertain future as it heads to the full Senate for more heated wrangling early next week.

Democrats slammed the measure, Senate Bill 344, for excluding transgender Hoosiers and even the seven GOP lawmakers who voted for it expressed reservations.

"It is going to go to the floor of the Senate where there will be a robust debate and its fate is unknown," Senate President Pro Tempore David Long said. "We don’t know what will be the outcome, but we’ll have the discussion and we’ll see where it goes."

Several lawmakers said their votes represented an effort to continue the conversation about gay rights — not necessarily support for the current proposal. * * *

During the hearing, lawmakers surprisingly added to the bill a repeal of last year's controversial Religious Freedom Restoration Act and the "fix" that quickly followed it.

If adopted, the changes would make Indiana the first state in the nation to repeal a RFRA law, according to one legal scholar. It also would represent a stunning reversal for leaders of the Republican-controlled Senate, who pushed hard to pass RFRA despite concerns that it could allow businesses to discriminate against same-sex couples.

Long and his fellow Republicans made it clear they want to put the negative perceptions created by the RFRA furor behind them. But impassioned testimony during the five-hour hearing also made it clear that the political atmosphere is still clouded by extreme feelings and fears on both sides.

Republican committee members also added adoption and crisis pregnancy centers to the list of organizations and businesses that would still be allowed to discriminate against LGBT people under the proposal. Another change would also allow faith-based groups, such as homeless shelters, to discriminate even if they aren't affiliated with a church.

Democrats objected to those carve-outs.

“Once we create loopholes, people take advantage of them," Senate Minority Leader Timothy Lanane, D-Anderson, said.

The bill already had allowed small wedding service providers and religious-affiliated organizations to discriminate against gays and lesbians. But it also adds sexual orientation to Indiana's civil rights laws, protecting gays and lesbians from discrimination in housing, employment and public accommodations. * * *

Scott McCorkle, CEO of Salesforce Marketing Cloud, said SB 344 is unacceptable because it leaves out protections for transgender individuals. McCorkle said that repealing RFRA reopens much of the arguments of last year’s debate.

“Therefore I speak to you today with grave concerns about the economic future of our state,” he said.

McCorkle said Indiana is still “reeling” from the damage he feels was caused by RFRA, and that he supported the “fix” to ensure the law couldn’t be used to discriminate against individuals based on sexual orientation and gender identity.

He said repealing RFRA and the subsequent “fix” threatens to “take us back to that dark moment in Indiana history."

Transgender military veteran Rhiannon Carlson asked lawmakers to include protections for transgender people.

Dan Carden of the NWI Times writes:
An Indiana Senate committee approved legislation Wednesday night providing civil rights protections to lesbian, gay and bisexual Hoosiers, tempered with a broad exemption for nearly any entity claiming a religious affiliation.

Senate Bill 344 also intentionally excludes transgender Hoosiers from its anti-discrimination provisions, leaving thousands of Indiana residents vulnerable to losing their jobs, homes or being denied service in a restaurant or other business open to the public. * * *

Committee members spent more than 90 minutes tinkering with specific details of the legislation before settling on a final version and considering some three hours of public testimony.

The plan adds sexual orientation, veteran status and active-duty military status to the seven classes — race, religion, color, sex, national origin, disability and age — already specifically protected under Indiana law against discrimination in housing, education, employment and access to public accommodations.

Religion-affiliated organizations, including churches, adoption agencies, day care programs, schools, clergy and any other nonprofit that offers religious-centered programs, as well as most wedding service providers, could still discriminate based on sexual orientation by claiming sincerely held religious beliefs.

State Sen. Travis Holdman, R-Markle, sponsor of the legislation, also persuaded the panel to specifically authorize anti-abortion organizations and crisis pregnancy centers to continue discriminating against homosexuals if they choose.

In addition, the measure lifts a state ban on contracting with businesses and other entities that favor hiring members of a specific religious group, as permitted by federal law, or requires their employees follow a religion-inspired code of conduct.

It also repeals the 2015 Religious Freedom Restoration Act, including the "fix" that prohibited discrimination based on sexual orientation and gender identity, and replaces it with a direction to the Indiana Supreme Court that religious liberty should be strongly favored in any case involving the constitutionally protected right.

A similar proposal, Senate Bill 66, known as "Super RFRA," which would have declared freedom of religion, speech, assembly and the right to bear arms only can be infringed by the state through the least restrictive means of furthering a compelling government interest, failed to advance out of a separate committee Wednesday.

Finally, the legislation requires a General Assembly study committee this summer review issues relating to gender identity discrimination for possible action by lawmakers in 2017.

Holdman said it was challenging for him as a conservative, evangelical Christian to figure out the appropriate balance between anti-discrimination protections and religious freedom. He pronounced himself satisfied with the committee-approved proposal.

Most Hoosiers testifying to the committee were less satisfied, and opposition to the measure produced some odd political bedfellows.

For example, both Curt Smith, head of the Indiana Family Institute, and Chris Paulsen, of Freedom Indiana, urged lawmakers to reject the proposal.

Smith because it provides sexual orientation protections; Paulsen because it excludes gender identity.

Business leaders, including Kevin Brinegar of the Indiana Chamber of Commerce and Scott McCorkle of Salesforce, declared the proposal a good start, but ultimately unacceptable because it diminishes Indiana's welcoming reputation by continuing to permit some discrimination.

The committee rejected a proposal that it simply add "sexual orientation, gender identity" to the civil rights statutes without any exceptions.

[Updated 1/289/16] Here is Hayleigh Colombo's long IBJ story on Wednesday's committee hearing.

Posted by Marcia Oddi on January 28, 2016 08:48 AM
Posted to Indiana Government

Ind. Courts - Interview times, applications, photos of Supreme Court candidates

From the Court:

The Judicial Nominating Commission (JNC) will conduct public interviews of the thirty applicants for the Supreme Court judicial position as follows:

February 17 (Wednesday)

9:00 a.m. – 10:15 a.m. – Executive session to consider applications

(Break)

10:45 a.m. – 11:05 a.m. – Mr. Thomas P. Yoder

11:05 a.m. – 11:25 a.m. – Mr. Geoffrey G. Slaughter

11:25 a.m. – 11:45 a.m. – Mr. Thomas E. Wheeler, II

(Lunch – Executive Session)

1:30 p.m. – 1:50 p.m. – Hon. Thomas J. Felts

1:50 p.m. – 2:10 p.m. – Mr. Peter J. Rusthoven

2:10 p.m. – 2:30 p.m. – Hon. Vicki L. Carmichael

(Break)

2:45 p.m. – 3:05 p.m. – Mr. David E. Cook

3:05 p.m. – 3:25 p.m. – Mr. Curtis E. Shirley

3:25 p.m. – 3:45 p.m. – Mr. Mark A. Lienhoop

February 18 (Thursday)

9:30 a.m. – 9:50 a.m. – Hon. James R. Ahler

9:50 a.m. – 10:10 a.m. – Hon. Sally A. McLaughlin

10:10 a.m. – 10:30 a.m. – Hon. Matthew C. Kincaid

(Break)

10:45 a.m. – 11:05 a.m. – Ms. Jaime M. Oss

11:05 a.m. – 11:25 a.m. – Hon. Larry W. Medlock

11:25 a.m. – 11:45 a.m. – Mr. John H. Shean

(Lunch – Executive Session)

1:30 p.m. – 1:50 p.m. – Hon. Steven L. Hostetler

1:50 p.m. – 2:10 p.m. – Mr. E. Nelson Chipman, Jr.

2:10 p.m. – 2:30 p.m. – Ms. Leanna K. Weissmann

(Break)

2:45 p.m. – 3:05 p.m. – Hon. Frances C. Gull

3:05 p.m. – 3:25 p.m. – Hon. Darrin M. Dolehanty

3:25 p.m. – 3:45 p.m. – Ms. Elizabeth C. Green

February 19 (Friday)

9:00 a.m. – 9:20 a.m. – Mr. Bryce D. Owens

9:20 a.m. – 9:40 a.m. – Mr. Ted A. Waggoner

9:40 a.m. – 10:00 a.m. – Hon. Kit C. Crane

(Break)

10:15 a.m. – 10:35 a.m. – Hon. Paul R. Cherry

10:35 a.m. – 10:55 a.m. – Rep. Thomas W. Washburne

10:55 a.m. – 11:15 a.m. – Mr. Thomas M. Fisher

(Break)

11:30 a.m. – 11:50 a.m. – Mr. Lyle R. Hardman

11:50 a.m. – 12:10 p.m. – Ms. Karen A. Wyle

12:10 p.m. – 12:30 p.m. – Hon. Steven R. Nation

(Break)

12:45 p.m. – Lunch and Deliberations in Executive Session

The interviews are open to the public and will take place at the Indiana State House in room 319. Decorum rules are in place for the press and public:

According to the Indiana Constitution and state statute, the seven-member JNC must recruit and select candidates to fill the vacancy on the state’s highest court. The JNC will review applications, consider applicants’ legal education, writings, reputation in the practice of law, and other pertinent information.

After the February interviews, a second round of interviews will take place March 3-4. After interviews and deliberations in an executive session, the JNC will publicly vote to send the three most qualified candidates to the Governor who has 60 days to select Indiana's next justice.

Applications and photographs are available online. Attachments, including writing samples and transcripts, will be available Friday, January 29 from 10:00-11:30 a.m. in the Supreme Court Law Library, State House room 316. After the public display the documents are available for review in person at the library.

Posted by Marcia Oddi on January 28, 2016 08:23 AM
Posted to Vacancy on Supreme Court - 2016

Wednesday, January 27, 2016

Ind. Gov't. - More on: Will GA do an end-around to revive the controversial Dunes pavilion liquor license effort? [Updated]

Updating this ILB post from Tuesday, Jan. 25, which quoted from several stories on HB 1247, which had not at that point been scheduled for committee hearing, Dan Carden of the NWI Times reports this afternoon:

INDIANAPOLIS — A House committee is expected to approve legislation Thursday that could enable alcohol sales at the Indiana Dunes State Park pavilion, regardless of consent by local authorities.

House Bill 1247 was amended by the Public Policy Committee Wednesday to allow the Indiana Department of Natural Resources to obtain a new "state park" alcohol permit, without having to follow most of the procedures typically required to get state permission to sell beer, wine or liquor — including local review.

"I view these permits that we're talking about for the state parks as an economic development tool for the state, and a chance for us to leverage the assets that we have in our state parks," said state Rep. Sean Eberhart, R-Shelbyville, sponsor of the measure.

While the proposal eases the process to sell alcohol in every state park, nearly all the committee testimony during the three-hour hearing focused on the Dunes Pavilion controversy.

Last March, Pavilion Partners, LLC inked a $5 million public-private partnership with the DNR to renovate the historic lakefront pavilion and add a banquet center on an existing cement pad adjacent to the building.

After local residents furiously protested the possibility of drinking in the park, the Porter County Alcoholic Beverage Commission twice denied Pavilion Partners the alcohol sales permit they say is needed to run a successful operation.

That decision was affirmed in October by the Indiana Alcohol and Tobacco Commission. An appeal before an ATC administrative law judge tentatively is scheduled for April.

The appeal may not be needed, however, if the proposed state park alcohol measure becomes law.

Norman Hellmers, of Valparaiso, speaking on behalf of Dunes Action, a group opposed to alcohol in the park, said it is unconscionable that state lawmakers would do an end-run around a decision that's already been settled locally.

"When you want to add an amendment that says they can just automatically get a permit for each of the state parks without any local input whatsoever, well that's simply not the democratic way to do things," Hellmers said.

Region representatives of the Sierra Club and Isaac Walton League environmental organizations similarly condemned the proposal.

The measure was supported by members of local building trades unions, Region tourism organizations, the state's commerce agency, Northwest Indiana Forum and the DNR. * * *

The committee is set to vote at 7:30 a.m. Region time on whether to advance the legislation to the full House.

ILB: The amendment struck out the introduced version of HB 1247 and replaced it entirely with new language re "Alcoholic beverage permits for state parks." Here is the new language, via the NWI Times.

[More] Kevin Nevers of the Chesterton Tribune reports this afternoon:

When a spokesperson for State Sen. Jim Merritt, R-31st, told the Chesterton Tribune two weeks ago that Merritt’s SB 188—compelling the Indiana Alcohol and Tobacco Commission to issue the DNR, on behalf of a state park, a three-way permit exempt from local ABC investigation and proceedings—would not have a hearing this session before the State Senate’s Public Policy Committee but, nevertheless, that the bill had not been withdrawn, she was altogether accurate.

SB 188 has indeed not had a hearing before the Senate’s Public Policy Committee.

It will, however, in the form of a proposed amendment to HB 1247, have a hearing before the House’s Public Policy Committee at 7 a.m. (8 a.m. EST). Thursday.

In fact, HB 1247—compelling the IATC to issue a three-way to an alcohol retailer for “economic development purposes,” similarly without ABC oversight—now exists really in number only. That’s because the proposed amendment to HB 1247 is nothing more nor less than the substantive text of SB 188, with this single addition, which happens to be the amendment’s first sentence: “Delete everything after the enacting clause and insert the following.”

The matter being deleted: the language of HB 1247.

The matter being inserted: the basic language of SB 188.

As things stand now, accordingly, HB 1247 has become an empty vessel carrying Merritt’s water. That vessel was co-authored by State Rep. Tom Dermody, R-20th, and Sean Eberhart, R-57th.

Merritt’s water would pour like this: any application for a three-way made by the DNR, on behalf of “one or more state parks” must be issued by the IATC, without public notice or investigation by the local ABC; without regard to quota provisions; without a “determination of reputation and character”; and without “consideration of location,” that is, irrespective of whether there is a need for such services at the location of the permit, whether there is a desire in the neighborhood or community “to receive such services,” and whether such services will have an impact either on the community or on other businesses in the community.

Merritt told the Tribune earlier this month that his intent in authoring SB 188 was to make the inn, conference center, and golf course at Fort Harrison State Park more competitive with the many hotels, restaurants, and other entertainment options located near the park.

ILB: Here is the agenda for the Public Policy meeting, convening at 8:00 AM Eastern time tomorrow morning. Note that there is no opportunity for public testimony. You may watch the meeting live here.

[Updated 2/2/16] Here is a Jan. 29th Chesterton Tribune story by Luke Nevers that begins:

Fifteen people with an interest in HB 1247 testified before the Indiana House’s Public Policy Committee on Wednesday, one day before the committee unanimously passed the bill and sent it to the floor.

Of those, five witnesses spoke against the bill: Norm Hellmers of Dunes Action; Eric Schlene, a former resident of Jackson Township; Jim Sweeney, president of the Porter County Chapter of the Izaak Walton League of America; Larry Silvestri, also of Dunes Action; and Bowden Quinn of the Hoosier Chapter of the Sierra Club.

The other 10 witnesses spoke in favor of the bill: Dewey Pearman of the Construction Advancement Foundation of Northwest Indiana; Pete Rimsans of the Indiana State Building and Construction Trades Council; Todd Vandermyde of Operating Engineers Local 150; Heather Ennis of the Northwest Indiana Forum; Matt Whetstone of the Northern Indiana Tourism Development Commission; Mark Wasky of the Indiana Economic Development Corporation; Mark Webb, an Indianapolis attorney who specializes in alcohol permitting; Mark Shublak of the South Shore Convention and Visitors Bureau; Cameron Clark, director of the Indiana Department of Natural Resources; and Melissa Coxey, representing Pavilion Partners.

Prior to the testimony, the bill’s author, State Rep. Sean Eberhart, R-57th, took a few moments to explain the bill, which he said “would truly allow more options for the state and (DNR) to expand the amenities and offerings at our state parks.” He noted that the DNR and not any private alcohol retailer would be the permittee, and he said--in response to a query by State Rep. Charlie Brown, D-Gary, who expressed a concern about the possible mixing of minors and alcohol at the beach--that the DNR would have to follow the laws and regulations already in place with respect to alcohol.

“We’re not bypassing those rules,” Eberhart said.

State Rep. Philip GiaQuinta, R-80th, for his part, wanted to be sure of one thing: there would be no local ABC review and no ATC review of a DNR permit application, “that is correct?”

That is correct, Eberhart said. Because the DNR is a state agency, “we’re looking at a little different animal.”

But what input would there be from local residents? GiaQuinta pressed.

“Most of the state parks are pretty expansive,” Eberhart said in response. “”There no real close neighbors I know of.”

For much of the session, testimony alternated between those in opposition to HB 1247 and those in favor of it.

The story then goes on at length, detailing individual testimony.

Posted by Marcia Oddi on January 27, 2016 06:52 PM
Posted to Indiana Government

Ind. Courts - Supreme Court applicants to be online tomorrow morning

From the Court:

The interview schedule will be announced tomorrow morning (Thursday, January 28). The applications (and downloadable photographs) will be online at that time.

The public viewing of the applications, with the voluminous attachments (writing samples, transcripts etc.) will now take place Friday, January 29 from 10 - 11:30 a.m. at the State House in the law library.

Posted by Marcia Oddi on January 27, 2016 04:24 PM
Posted to Vacancy on Supreme Court - 2016

Ind. Courts - "Agreement with DOC marks fundamental, systemic change in the treatment of seriously mentally ill prisoners" [Updated]

From an ACLU of Indiana news release just issued. The long statement begins:

Indianapolis -A long-running class action lawsuit brought by the American Civil Liberties Union of Indiana and the Indiana Protection and Advocacy Services Commission against the Indiana Department of Correction has been settled with a proposed agreement that awaits approval by the Court after notice to the class. If approved the agreement will fundamentally transform the way seriously mentally ill prisoners are treated in state correctional facilities. The changes will affect hundreds, if not thousands, of prisoners in Indiana who will receive better access to mental health care and who will no longer be held without treatment in solitary confinement.

The agreement prohibits, with some exceptions, the confinement of seriously mentally ill prisoners in restrictive status housing or protective custody (i.e., solitary confinement). As a general rule, no prisoner who is seriously mentally ill will be placed into restrictive housing. The agreement uses a definition of severe mental illness that includes people who entered solitary with less than severe mental illnesses but whose mental health has deteriorated due to solitary. And, the agreement provides for "minimum adequate treatment" for these prisoners.
Here is a copy of the 27-page "Stipulation to Enter Into Private Settlement Agreement Following Notice to the Class and Fairness Hearing."

[Updated 1/29/16]
See this Washington Post editorial today, "Indiana takes a step forward on solitary confinement."

Posted by Marcia Oddi on January 27, 2016 03:48 PM
Posted to Ind Fed D.Ct. Decisions

Ind. Gov't. - Still more on "No more stringent" back again

Updating this ILB post from Jan. 20th, HB 1082 passed out of House committee this morning. From a Hoosier Environment Council news release:

In Backdrop of Flint Water Crisis, House Environmental Committee Passes Major Anti-Environmental Bill, Despite Across-the-Board Opposition by Public Interest Groups

Just a few moments ago, the Indiana House Environment Committee narrowly passed (on a vote of 7 to 6) a highly controversial bill (HB 1082) that would leave Indiana vulnerable to environmental disasters like the one unfolding in Flint.

“The situation in Flint demonstrates the gaps that exist in federal regulation that Indiana could address if we do not adopt HB 1082 as law: In Committee this morning, the bill's author, Representative Wolkins, correctly pointed out that there were violations of federal drinking water regulations in Flint. However, close examination of those regulations brings to light gaps that could allow the Flint situation to happen again. For example, under federal regulation, drinking water systems can continue to deliver lead-tainted water to households and businesses for up to 24 months while a variety of fixes are attempted,” said Dr. Indra Frank, Environmental Health and Water Policy Director for the Hoosier Environmental Council.

Posted by Marcia Oddi on January 27, 2016 02:05 PM
Posted to Environment | Indiana Government

Ind. Gov't. - "House OKs rules on police video access" [Updated]

Updating this ILB post from yesterday, Niki Kelly of the Fort Wayne Journal Gazette reports today:

The Indiana House voted 65-30 Tuesday to set up rules for accessing police video recordings that give wide discretion to police on when – if ever – to release them.

Rep. Kevin Mahan, R-Hartford City, said the bill is a balancing act between public information and transparency while recognizing the privacy rights of Hoosier citizens and police that might be in the recordings.

He said he doesn’t want access to the recordings to be a deterrent to law enforcement agencies thinking of adding body cameras. The bill also covers dash cameras.

“I could be the victim of a crime or the victim of police misconduct and I feel comfortable with the bill,” Mahan said.

But it has been criticized by the Hoosier State Press Association and the Indiana Broadcasters Association as giving law enforcement the power to release only the recordings that are positive.

It also places the burden to get the recording on someone asking for it unlike Indiana’s other public records laws, which places the burden on government denying the request.

House Bill 1019 sets up two processes to get access.

Members of the public and the media would have to file a lawsuit and try to prove the public interest would be served with the release of a video. Even if the person or group wins, a judge is prohibited from giving them attorney’s fees.

Secondly, people who are in the videos – or relatives and attorneys of someone now deceased in a video – can view the video twice but not get a copy. If law enforcement doesn’t comply, the person would have to go to court and might be able to receive attorney’s fees.

[Updated Jan. 28] Maureen Hayden, CNHI state Reporter, has a long story today in the Terre Haute Tribune Star, headed "Police want tight limits in bill on body-camera footage."

Posted by Marcia Oddi on January 27, 2016 01:46 PM
Posted to Indiana Government

Ind. Gov't. - "With increased support, hate crime bill advances"

Stephanie Wang reports in today's Indianapolis Star in a story that begins:

With new bipartisan support, and with sway from influential city leaders, Indiana lawmakers gave preliminary approval Tuesday to what could become the state's first hate crime law.

But a public hearing on the issue quickly became snarled by friction from the debate over lesbian, gay, bisexual and transgender rights.

The mere discussion of a hate crime law marked a big departure from previous years when Democrat proposals on the issue never advanced.

This year, a Senate committee took up a proposal brought by Republican lawmaker Susan Glick from LaGrange. Marion County Prosecutor Terry Curry showed up to put his weight behind the issue, joined by a coalition of institutions that serve minorities.

Senate Bill 220 would create a sentencing enhancement for bias-motivated crimes, as opposed to previous proposals to make it a separate criminal charge. Courts could consider stricter penalties for convicted offenders who targeted victims because of characteristics such as race, religion, sex, disability, sexual orientation or gender identity.

"This is about evil intent," Glick said. Hate crimes can send chilling messages throughout communities, she said — but a law could send a message back to criminals that the state will not tolerate hate. Indiana is one of five states without a hate crime statute.

Curry cited several past examples of crimes motivated by bias: the burning of a cross in a Johnson County yard, the attack of a Muslim woman in Bloomington, and the intimidation of a gay neighbor in Indianapolis.

Posted by Marcia Oddi on January 27, 2016 01:37 PM
Posted to Indiana Government

Ind. Courts - "Court Of Appeals Rules Against County Speed Limit"

The Jan. 19th Court of Appeals opinion in Cary R. Coleman v. State of Indiana (ILB summary here, 2nd case), where the court concluded:

Because there were no “appropriate signs giving notice of the altered speed limit” to northbound drivers on Leesville Road, the statewide default speed limit of 55 miles per hour was applicable. See I.C. § 9-21-5-6(c). As Coleman did not exceed that speed, the judgment against him was in error.
was the subject of a story Jan. 27th from WBIW, Bedford. Some quotes:
(BEDFORD) - Lawrence County Attorney Dave Smith addressed the commissioners about a Indiana State Court of Appeals Case that will affect the speed limits on county roads. On January 19th the appeals court ruled ruled in favor of Cary R. Coleman.

On November 29, 2014 Coleman was driving north on Leesville Road when a Lawrence County Police officer clocked him going 46 miles per hour. The officer stopped Coleman and issued Coleman a speeding ticket.

Pursuant to Ordinance 5-2-1 county officials had altered the speed limit on Leesville road from the statewide default of 55 miles per hour to 35 miles per hour. However there were no signs on Leesville Road giving northbound motorist notice of the altered speed limit.

Coleman fought the ticket and the matter was set for trial on March 2, 2015. The trial court heard arguments from the state and Coleman. Coleman testified that he had exceeded the 35 miles per hour, but argued that the applicable speed limit was 55 miles per hours saying there were no signs posted stating different for northbound traffic.

He did state there was a speed limit sign facing southbound traffic, but that the sign had been illegally placed by a private citizen.

According to Coleman, in the absence of signage notifying northbound motorists of the altered speed limit, the 55 mile-per-hour statewide default speed limit applied. * * *

The Appeals Court found in favor of Coleman stating that because there was no sign on Leesville Road notifying northbound motorists of the altered speed limit. Thus, pursuant to I.C. § 9-21-5-6(c), the altered speed limit was not effective as to northbound traffic, and the default speed limit of 55 miles per hour was applicable.

Because Coleman was alleged to have been traveling at 46 miles per hour, he did not commit the civil infraction of speeding. As Coleman did not exceed that speed, the judgment against him was in error.

Smith says the issue now is that county roads that are not posted with 35 miles per motorist traveling more than 35 miles per hour are not violating the speed limit.

Smith added that now before a 35 mile per hour sign can be posted the sheriff's and highway department will have to do a road study, post notice of the changed speed limit and hold a public meeting for each county road that does not have a posted speed limit sign.

"Which will cost a lot of money," says Commissioner President Bill Spreen. "We live here and know what speed limits our roads need. This is just another way for the state to totally over write us."

Posted by Marcia Oddi on January 27, 2016 11:57 AM
Posted to Ind. App.Ct. Decisions | Indiana Government