Wednesday, June 19, 2013
Ind. Gov't. - More on: Indiana Youth Group files in federal court in response to BMV Commissioner's action
Updating this ILB entry from earlier today (which includes a copy of the complaint), here is the most recent AP coverage of the story - from late this afternoon, in the Albany, NY Times-Union, as reported by Tom LoBianco. Some quotes:
INDIANAPOLIS (AP) — The American Civil Liberties Union of Indiana filed a federal lawsuit Wednesday against the Indiana Bureau of Motor Vehicles, seeking the reinstatement of specialty auto license plates for a group that counsels gay and lesbian youth.
The ACLU claims BMV Commissioner Scott Waddell violated due process by asserting himself as the final authority in an independent review that approved specialty plates for the Indiana Youth Group, according to a copy of the suit obtained by The Associated Press.
Administrative Law Judge Melissa Reynolds issued a ruling in May that directed the BMV to reinstate the plates, but Waddell stepped in last week, continuing the suspension while getting more answers on whether the Indiana Youth Group violated its contract with the state.
"The actions of the Commissioner of the Indiana Bureau of Motor Vehicles, in acting as the appellate and final authority over a decision that he, in effect, issued, violates the right to have an impartial decision maker in administrative adjudications and therefore violates due process," the ACLU wrote in its filing. * * *
"The BMV is acting as both prosecutor and judge," Mary Byrne, executive director of Indiana Youth Group, said in a statement. "They are the other party in the administrative hearing and now the Commissioner is acting as an appellate judge in asking the ALJ to reconsider a couple of arguments that they failed to bring up at the hearing. We are just trying to get a fair shake".
Ind. Courts - A new, easily searchable, appellate docket!
Remember the dread appellate online docket? Where you have to carefully type in a case number, filling one box at a time? Where if you get more than one case pulled up, there IS NO BACK KEY, you have to start over?
There is hope! There is a new, beta Appellate Case Search. I just put it to the test and it passed. I pasted in the case number of yesterday's legislative fines decision, "49S00-1201-PL-53." No problem.
Then I pasted in the lower case number, from the Marion County court - 49D10-1106-PL-23491. Again no problem, and I pulled up there cases. I could easily look at one, then use the BACK KEY to look at the next - no need to start over!
A reader: And what I like about it is that it now lists the most recent entry at the top, so I don't have to scroll all the way down to see if anything new has happened on any of my cases.
Another reader: The sort default is last updated, which is a bit odd and some of the entries for me are wrong. Within the first five or six are some cases that haven't been updated since the early 2000s.
Ind. Courts - “Disingenuous” Appellate Lawyering in Indiana: A Worsening Trend or Unfair Accusation?
Commentary by Joel Schumm, professor at Indiana University's Robert H. McKinney School of Law
Since January of 2010, on thirty-three separate occasions the Indiana Court of Appeals has issued opinions labeling an appellate lawyer’s argument “disingenuous.”* Although this is less than one-half percent of the nearly 8,000 opinions issued over almost three and half years, thirty-three instances of disingenuousness by lawyers is nevertheless troubling — and appears to be worsening. Six occurred in the first five and a half months of 2013.
Calling a lawyer “disingenuous” is a serious charge. The primary definition in Webster’s is “lacking in candor,” which sounds a lot like a violation of Indiana Rule of Professional Conduct 3.3. That rule is entitled “Candor Toward the Tribunal” and prohibits lawyers from knowingly making “a false statement of fact or law,” or offering “evidence that the lawyer knows to be false.” The comments make clear that lawyers “must not allow the tribunal to be misled by false statements of law or fact,” although lawyers are “not required to present an impartial exposition of the law.”
In the view of some, disingenuous is a fancy, five-syllabus way of calling someone a liar.
A Few Examples
The complete list of the thirty-three instances of disingenuousness with links to the opinions is available here. Assessing the extent or degree of disingenuousness is sometimes challenging without reading the record or researching the applicable law. But at least a few of the alleged incidents of disingenuousness strike me not as arguments lacking in candor but merely ones lacking persuasive force.
1. Hull v. State: “Hull is disingenuous in claiming that the trial court abused its discretion in failing to give mitigating weight to his lack of an adult criminal record. Hull was only seventeen when he was arrested and prior to the instant offenses had never been waived into adult court.”
My thoughts: Juveniles as young as ten years old charged with murder can be waived to adult court as can other juveniles as young as fourteen charged with other offenses. Should a seventeen-year-old without an adult criminal record be proud of the accomplishment? Probably not, but I don’t think the argument lacks candor or is somehow dishonest.
2. Pond v. State: “Pond contends that his guilty plea saved the State both time and expense and spared Jacob’s family from the pain and anguish of going through a trial where gruesome autopsy photos would have been displayed. While the trial court afforded some mitigating weight to Pond’s guilty plea, we find his argument disingenuous in light of the substantial benefit Pond received for his guilty plea.”
My thoughts: The Indiana Supreme Court has repeatedly held that “[a] guilty plea demonstrates a defendant's acceptance of responsibility for the crime and extends a benefit to the State and to the victim or the victim's family by avoiding a full-blown trial.” Granted, sometimes the defendant may have charges dismissed or reduced for pleading guilty, but the State has still saved time and expense by avoiding a trial and victims are spared “pain and anguish” of a trial.
3. Williams v. State: “Williams argues that the trial court abused its discretion when it imposed the balance of his previously suspended sentence because he committed only ‘administrative rule violations.’ Williams’s attempt to minimize the severity of his conduct by categorizing his violations as ‘administrative’ is disingenuous, at the very least.”
My thoughts: Perhaps “administrative” is not the ideal word choice, but many defendants violate the conditions of their probation by conduct that is unquestionably serious and in no way administrative, such as commission of a new felony offense. If counsel is appointed to appeal a clear violation of less serious conditions, about the only argument available is minimizing the severity of the violations in arguing for a sentence less than the maximum. Here’s an example of a case where I fortunately was not labeled disingenuous for a similar argument.
Challenges for Appointed Counsel
The vast majority of criminal defense and defense of parents in termination of parental rights’ cases involve appointed counsel. Those cases comprise almost half of the thirty-three alleged incidents of disingenuousness. The Indiana Supreme Court held in Mosley v. State, 908 N.E.2d. 599 (Ind. 2009), that appointed counsel cannot file an Anders brief and withdraw in a case without meritorious legal claims but must instead file an advocative brief on behalf of the client. Moreover, Rule of Professional Conduct 3.1 makes clear that lawyers representing criminal defendants “may nevertheless so defend the proceeding as to require that every element of the case be established.” The Comments explain that lawyers’ obligations under the rule “are subordinate to federal or state constitutional law that entitles a defendant in a criminal matter to the assistance of counsel in presenting a claim or contention that otherwise would be prohibited by this Rule.”
Although appointed counsel will often make arguments that lack legal merit, a lawyer should not be labeled “disingenuous” for bringing the least bad claim available.
Lawyers in General
If appellate lawyers are truly making dishonest arguments or other serious mistakes in an appeal, I’m a strong advocate for appellate judges pointing out the error in a clear and respectful way. If nothing is said, the lawyer may well keep making the same mistake. For example, it’s hard to believe that in 2013, more than ten years after Appellate Rule 7(B) was amended to change the “manifestly unreasonable” standard for revising a sentence on appeal to the considerably less deferential “inappropriate” standard, lawyers are still citing the old and unfavorable standard. They should be told when citing a wrong, decade-old standard.
Wide Variations Among Judges
Unlike the citation of a legal standard that everyone would agree is plainly wrong, finding arguments disingenuousness sometimes does not share the same universality. Indeed, the use of the term disingenuous varied widely among the sixteen judges (Judge Pyle replaced Judge Darden in 2012) on the Court of Appeals. Six of the judges never used the word. The remaining ten judges used the word at least once, although most did so rarely while three of the judges accounted for nearly two-thirds (21 of the 33) of the usage.
In contrast, Indiana Supreme Court opinions labeled lawyers disingenuous just twice. Both were in disciplinary opinions and interestingly involved pro se Respondents:
In re Powell (“We agree with the hearing officer's finding of the following facts in aggravation: . . . (3) he made disingenuous, contradictory, unsupported, and evasive assertions during the proceedings ...")
In re Williams (“Respondent's attempt (after his initial defense failed in the civil case and initial response to the grievance) to allege that the Commission is attacking his personal beliefs and the contents of his books is disingenuous to the extreme. They play no role the Court's conclusion that he should be disciplined for the professional misconduct described above.”)
Disingenuous may not be the worst thing some lawyers have been called in a publicly accessible court opinion. A subsequent post will consider other words and phrases, and I welcome your input. But disingenuous, with the suggestion of dishonesty, seems near the top of the list.
Finally, judges lead by example, and their use of the word may well embolden some attorneys to do the same. A quick search of the appellate briefs available on Westlaw suggests lawyers are already more likely than judges to level accusations of disingenuousness, a trend that hopefully does not continue.
*Searches of Indiana cases on both Westlaw and Lexis for the term "disingenuous!" yielded 51 hits. I excluded the Indiana Supreme Court opinions discussed in this entry as well as several other cases where the word was simply quoted from another source or otherwise not directed to the conduct of counsel. Three cases involving pro se litigants were also excluded.
Ind. Decisions - "Supreme Court agrees Democrat lawmakers must pay fines for walkout"
Here are several news reports on yesterday's Supreme Court decision in Berry v. Crawford.
- Chris Sikich's story in the Indianapolis Star
- Eric Bradner's story in the Evansville Courier & Press
- Niki Kelly's story in the Fort Wayne Journal Gazette
Ind. Gov't. - Indiana Youth Group files in federal court in response to BMV Commissioner's action
Updating the recent ILB entries on this issue, the most recent of which was last evening, the ACLU has issued a press release this morning headed "Indiana Youth Group Fights Back: BMV's involvement in its own review 'violates due process and is unconstitutional.'" It reads:
Indianapolis -The American Civil Liberties Union of Indiana today on behalf of the Indiana Youth Group filed a lawsuit challenging the authority of the Indiana Bureau of Motor Vehicles to issue an Order of Remand on its Administrative Law Judge's order to restore IYG's specialty license plate. The ACLU of Indiana seeks to void the order and ensure that proceedings are performed by a "neutral and impartial" decision maker.The ILB will be posting a copy of the complaint shortly.
"The BMV commissioner acting as the appellate and final authority over a decision that he, in effect, issued, violates the right to have an impartial decision maker in administrative adjudications and therefore violates the fundamental principle of due process guaranteed by the Fourteenth Amendment," said Ken Falk, ACLU of Indiana Legal Director.
On Friday, June 14, BMV commissioner R. Scott Waddell issued an Order of Remand effectively reversing the decision of the Administrative Law Judge, who had ruled in May that the State violated the IYG's specialty license plate contract when it issued a suspension of the plate last year without giving the nonprofit the required notice and a chance to correct any issues. The ALJ also found that IYG's actions did not constitute a sale of low-digit specialty plates, as 20 Indiana State Senators had claimed in March of 2012. These state senators asked the BMV to terminate IYG's contract after they had been ineffective in passing legislation to that effect.
ACLU of Indiana Executive Director Jane Henegar said, "IYG does admirable work providing guidance to young people. IYG wants what has been denied at every turn in its quest to obtain a specialty license plate in support of its work: fair treatment by our government. The ACLU of Indiana hopes to help put an end to an unnecessarily lengthy and contentious process that has done nothing but stand in the way of real help for children in need."
Mary Byrne, IYG executive director, said she feels as though the BMV "is just being vindictive."
"There was nothing ambiguous in the administrative law judge's ruling," said Byrne. "The BMV had a chance to present its side at the administrative hearing, and they lost. The BMV simply does not want IYG to get its plate back, ever."
Indiana Youth Group, Inc. v. R. Scott Waddell, Case no. 1:13-cv-00981-JMS-MJD, was filed June 19 in the U.S. District Court Southern District of Indiana, Indianapolis Division.
Here it is, the 7-page complaint filed this morning in federal court.
See also this ILB post from yesterday afternoon.
Ind. Decisions - Court of Appeals issues 3 today (and 18 NFP)
For publication opinions today (3):
In Revas Spencer v. Tiffany Specer, a 4-page opinion, Judge May writes:
Revas Spencer (Husband) appeals the denial of the Agreed Order Dismissing Order of Protection he and Tiffany Spencer (Wife) submitted to the trial court. We reverse. * * *In Floyd Weddle v. State of Indiana, a 15-page opinion, Judge Baker writes:
As the word “shall” appears in the statute regarding the trial court’s actions when the petitioner files for the dismissal of an Order of Protection, the trial court did not have discretion to deny the parties’ request to dismiss the protective order.
 In denying the parties’ request to dismiss the Order of Protection, the trial court stated it would not dismiss the Order because Husband had “gotten charged criminally with violating it[.]” (Tr. Vol. 2 at 5.) While we understand the reason for the trial court denial of the parties’ request to dismiss, it is unfortunately not afforded such discretion. Like the trial court, we are bound by the language of the statute and make our decision on appeal based on the rules of statutory interpretation.
In this case, the appellant-defendant Floyd Weddle challenges the trial court’s admission of certain evidence after police officers conducted a protective sweep of his residence and subsequently searched the premises following the issuance of a search warrant. Weddle claims that the scope of the protective sweep violated both the Fourth Amendment to the United States Constitution and Article I, Section 11 of the Indiana Constitution because the allegedly impermissible broad protective sweep of the residence led to the police officers’ discovery of drugs and paraphernalia.ILB: This is the case where the oral argument led to this May 23rd post, headed "There’s Nothing Sinister About Home Security Cameras." Although today's opinion on p. 3 mentions the presence of "surveillance cameras on the front porch and near the garage," they are not further referenced.
We find that the scope of the protective sweep of the residence was reasonable because the officers heard additional movement in the house after taking Weddle into custody, indicating that another individual might be inside and thus presenting a risk of harm to them. The police officers did, in fact, locate other persons in the house. Therefore, the evidence that the police officers seized during the subsequent search of the residence was properly admitted at trial, and we affirm the judgment of the trial court.
In Josiah Williams v. State of Indiana, a 10-page opinion, Judge Brown writes:
Josiah Williams appeals his conviction for public intoxication as a class B misdemeanor. Williams raises one issue, which we revise and restate as whether the evidence is sufficient to sustain his conviction. We affirm.NFP civil opinions today (5):
NFP criminal opinions today (13):
Courts - There are 14 SCOTUS cases that are waiting decision, next announcement day is this Thursday
SCOTUSblog has the complete list, with details. Notice that the second "oldest" case, by virtue of when the oral argument occurred, is Vance v. Ball State University, re the “supervisor” liability rule.
Tuesday, June 18, 2013
Ind. Courts - "Attention turns to Indiana Supreme Court justice in Rockport plant case"
Indianapolis Star business reporter Tony Cook posted this long story online this evening. Here are some quotes:
As the Indiana Supreme Court prepares to weigh a case that could determine the fate of a controversial $2.8 billion coal-gas plant in Rockport, attention has turned to one of the judges.ILB: The ILB posted legal background on the recusal issue on June 7th and on June 9th.
Justice Mark Massa is a longtime friend of Mark Lubbers, the plant developer’s top official in Indiana. Massa also was legal counsel for then-Gov. Mitch Daniels, who strongly advocated for the project.
Legal experts say those factors should prompt Massa to seriously consider stepping aside. They also say that if a judge is going to recuse himself, he should do so as soon as possible. Opponents of the project say Massa already should have.
So far, Massa has not. Whether he intends to remains unclear.
“He will need no encouragement to recuse himself if there is a reason to do so,” Lubbers said. “His ethical standards are well-honed and above reproach.”
Kathryn Dolan, a spokeswoman for the court, said Massa did not recuse himself when the Supreme Court decided to take up the case on June 6.
In the past, some justices — including Massa — have recused themselves at the time the court decides whether to take up a case.
Massa could not comment for this story because of a judicial rule that bars judges from speaking publicly about cases pending before them, Dolan said. * * *
At least three of the court’s five justices must vote to take up a case. But information about those votes is confidential, so it is unknown whether Massa played any role in the court’s decision to hear the Rockport case.
The relationship between Massa and Lubbers “represents a serious, legitimate concern,” said Charles Geyh, a law professor at Indiana University and one of the nation’s top experts on judicial disqualification.
“If Lubbers is widely understood as the alter ego of the company that is going to lose a serious financial opportunity if this decision is upheld, then you might think disqualification is in order,” he said.
Plant opponents are concerned.
With so much at stake, they question whether Massa can objectively rule on a matter that could effectively kill the project his friend has worked for years to make happen.
“To give the public confidence that this decision is based on the law and sound public policy, and not political cronyism, Justice Massa should recuse himself,” said Kerwin Olson, executive director of Citizens Action Coalition, which is a party to the case. * * *
Lubbers and Massa have a long history together.
In the mid-1980s, Massa was a reporter for an Evansville newspaper when Lubbers recruited him to become a speechwriter for Gov. Bob Orr. Both men would later work for Daniels, though at different times.
During Massa’s robing ceremony in May 2012, Lubbers introduced him and described their early days together. He praised Massa as “a gem of extraordinary quality.” [ILB: Video of the ceremony is archived on the Indiana Court website, Mr. Lubbers speaks at about 11:40 into the video]
When Massa stepped up to the microphone, he said Lubbers “was the first of many who inspired me to aim higher in the Daniels tradition.” * * *
Critics of the Rockport project say there is another reason Massa should consider stepping aside: his work for Daniels, a proponent of the plant.
Massa was general counsel to Daniels from 2006 to 2010. During that time, Daniels signed several pieces of legislation that helped enable the project, including a 2009 law that authorized the Indiana Finance Authority, a state agency, to negotiate a contract with Indiana Gasification.
Whether the contract is in keeping with what lawmakers authorized is part of what the Supreme Court is now considering.
David Pippen, who served as Daniels’ energy adviser and who replaced Massa as general counsel, said he didn’t think Massa had anything to do with contract negotiations. But he said Massa likely would have overseen the legal review of the 2009 authorizing legislation.
That could trigger another provision of Indiana’s judicial code, which requires judges to disqualify themselves if they have served as a lawyer or participated as a public official in the matter in controversy.
Experts agree that if a judge is going to recuse himself, he should do so as soon as possible.
“If a judge doesn’t get off a case as soon as he or she is made aware of a disqualification issue, that throws into question any ruling the judge participates in,” said Les Abramson, a law professor at the University of Louisville who has written about judicial disqualification.
Indiana Supreme Court justices have stepped aside when making the initial decision about whether to take up a case.
Massa did just that in December, when the court declined to take up a case involving Indianapolis police officer David Bisard.
Ind. Gov't. - Still more on "BMV seeks clarity on judge's ruling on Indiana Youth Group license plates"
BMV Commissioner Scott Waddell late Monday ordered Administrative Law Judge Melissa Reynolds to re-open the case and assess whether the Indiana Youth Group had been “selling” or “auctioning” low-number license plates. Reynolds ruled last month that the group had violated Indiana law and its state contract by receiving payments in exchange for low-numbered license plates, but found the actions didn’t constitute an auction or warrant the revocation of the plate. She also said the BMV failed to give 30 days’ notice before suspending the plates as required.
She recommended the group’s plates be reinstated, a move the youth group had hoped would occur by late this month.
Reynolds’ findings weren’t binding, however; the administrative law judge for the BMV reports to the commissioner.
Waddell noted in his order seeking the review that he is the “ultimate authority” by law. He said the plates will remain suspended until he makes a final determination.
“Until a final order is issued by me, as the ultimate authority for the BMV, (IYG’s) participation in the specialty group recognition program shall remain suspended,” Waddell wrote.
Ind. Decisions - One today from Tax Court
In Vodafone Americas Inc. and Vodafone Holdings LLC v. Indiana Dept. of State Revenue, a 9-page opinion, Judge Fisher writes:
Vodafone Americas Inc. and Vodafone Holdings LLC (collectively, Vodafone) appeal the two final determinations of the Indiana Department of State Revenue denying their claims for refund of adjusted gross income tax paid during the taxable years ending March 31, 2005 through March 31, 2008 (the years at issue). The appeal is currently before the Court on Vodafone’s motion for summary judgment (Motion). In its Motion, Vodafone asks the Court to answer one question: whether the income it received as a partner of a general partnership that was doing business in Indiana was income derived from sources within Indiana. The Court answers that question in the affirmative. * * *
The income Vodafone received as a partner of Cellco had the character of operational income and was therefore not income in the form of “dividends from investments” under Indiana Code § 6-3-2-2.2(g). Accordingly, Vodafone’s motion for summary judgment is hereby DENIED.
Ind. Decisions - " Long-time attorney David Rees avoids prison time: Rees will serve 4 years on home detention"
From Jack Rinehart's story this evening on WRTV 6:
INDIANAPOLIS - A long-time Indianapolis attorney will not have to go to jail for stealing hundreds of thousands of dollars.ILB: The story refers to "the judge" a number of times, but never identifies "the judge." As our Marion County judges are elected by the voters, it would be good if the press would identify them in their reports.
David Rees’ sentence was handed down Tuesday and it came as a big disappointment to many who were closely connected to the case.
Minutes before his sentencing, Rees, 73, huddled with clergy from his church. It wasn’t the spiritual intervention that spared him a jail sentence, but rather his poor health and medical expenses that the judge didn’t want to fall to the taxpayers. * * * [ILB: I'd guess he is on Medicare ...]
Rees violated his ethical and legal responsibility to manage the estate of the Roberts family. Over a period of 10 years, he stole more than $270,000 from the estate.
When he was caught, he tried to cover the theft up.
“It’s a tragedy. It’s a tragedy. But I will accept the responsibility of the judge,” said victim Sue Roberts-Gleason.
Prosecutors could only prove that Rees stole $270,000, but they believe the actual figure is much higher. * * *
The judge ordered Rees to make restitution to his victims, but Rees told the court that he was broke and has nothing to show for his thefts.
Here is the Jan. 28, 2013 Order of the Supreme Court, accepting Rees' resignation from the bar, and stating: "attorney disciplinary proceedings pending against Respondent are hereby dismissed as moot because of Respondent’s resignation."
Ind. Decisions - More on: Supreme Court decision in Berry v. Crawford posted
Updating this ILB entry from earlier today, Lafayette attorney Doug Masson of Masson's Blog had a great post this afternoon giving his take on the Supreme Court decision today in Berry v. Crawford. It is headed "Ind. Supreme Court avoids question of whether House violated Wage Payment Statute." Check it out here.
Ind. Gov't. - More on "BMV seeks clarity on judge's ruling on Indiana Youth Group license plates" [Updated]
The BMV has asked an administrative law judge to review her order allowing the Indiana Youth Group to continue selling specialty license plates. * * *[Updated at 2 PM] The ILB has now obtained a copy of the BMV Commissioner's "Order of Remand" that concludes:
An administrative judge ruled in May that the BMV erred in immediately suspending the plate program last year without giving the group 30 days' notice.
BMV Commissioner Scott Waddell directed the administrative judge to assess the difference between "selling" and "auctioning" low-number license plates.
The ALJ is instructed to issue a modified Non Final Order that reflects the ALJ's conclusions following consideration of the foregoing. Until a Final Order is issued by me, as the ultimate authority for the BMV, NG's participation in the specialty group recognition program shall remain suspended.Note that the BMV is both a party and the "ultimate authority" in this dispute.
Ind. Decisions - "Lawyers can only collect some legal fees for suing Jeffersonville, COA rules"
The June 12th NFP COA opinion in City of Jeffersonville, Indiana and City of Jeffersonville Sanitary Sewer Board v. Environmental Management Corporation (NFP) is the subject of a story today by Charlie White in the Louisville Courier-Journal. Some quotes:
Attorneys who successfully sued Jeffersonville on behalf of the Environmental Management Corp. can collect legal fees from the city for only some of their work on the case, the Indiana Court of Appeals has ruled.The COA opinion concluded:
The city must pay the lawyers for their work on a contempt claim they won against Jeffersonville after the company was dropped as the operator of the sewage plant, but not the money the lawyers sought for winning a breach-of-contract claim, the appeals court said in a ruling last week.
In September, Clark Circuit Judge Vickie Carmichael ordered the city to pay the lawyers $270,000 in legal fees, but the appeals court sent the case back to the lower court to determine how much the city owes the lawyers solely for their work on the contempt claim. * * *
“We are not persuaded that the trial court correctly concluded that the trial of the breach of contract claim was substantially a result of Mayor Galligan’s contemptuous conduct,” the appeals court wrote.
Based on the foregoing, we conclude that the trial court’s award of attorney fees for the City’s contempt was unsupported by the evidence. We therefore remand to the trial court with instructions to calculate the amount of attorney fees incurred in the prosecution of EMC’s contempt complaint.
Ind. Decisions - 7th Circuit decides one Indiana case today
In ROBERT YEFTICH v. NAVISTAR, INC. (SD Ind., Barker), an 11-page opinion, Judge Sykes ("J. Tinder recused himself and did not participate in the decision of this appeal, which is being resolved by a quorum of the panel") writes:
We review here the dismissal of a complaint filed by a group of unionized workers at a Navistar engine plant in Indianapolis, Indiana. The plaintiffs alleged that they were laid off by Navistar and not rehired as work became available because the company had actually subcontracted their work to nonunion plants in contravention of the governing collective-bargaining agreement. The workers brought this action against Navistar under section 301 of the Labor Management Relations Act (“LMRA”) for breach of the collective-bargaining agreement.
A successful section 301 claim requires not only a breach of contract by the employer but also a breach by the plaintiffs’ union of its duty of fair representation. The latter is required because the union is responsible for representing its members’ interests and addressing their complaints pursuant to whatever grievance process is set up by the relevant collective-bargaining agreement. Only when the union fails to carry out that duty may union members pursue section 301 litigation against their employer. To satisfy this requirement, the plaintiffs alleged that they filed grievances challenging Navistar’s subcontracting of work but the union intentionally failed to process the grievances in breach of its duty of fair representation. The district court held that the complaint lacked enough factual content to plead a plausible claim for breach of the duty of fair representation and therefore dismissed the LMRA claim.
We affirm. The complaint identifies the elements of a duty-of-fair-representation claim and contains allegations that each element is satisfied. But we agree with the district court that because the allegations are almost all conclusory, the complaint lacks the necessary factual content to state a plausible claim under section 301 of the LMRA.
Ind. Decisions - Court of Appeals issues 3 today (and 9 NFP)
For publication opinions today (3):
In Nationstar Mortgage, LLC v. Jeffrey A. Curatolo, Et Al., , an 8-page opinion, Cheif Judge Robb writes:
Nationstar Mortgage, LLC (“Nationstar”), appeals the trial court’s order modifying its mortgage agreement with Jeffery A. Curatolo. We find the following restated issue dispositive: whether the trial court had the authority to modify the mortgage agreement without consent of both parties. Concluding the trial court lacked the authority to do so, we reverse and remand.In Bertram A. Graves v. Richard Kovacs, M.D., Edward Ross, M.D., and Indiana University Health f;/k/a Clarian Health Partners, Inc., an 11-page opinion, Judge Barnes writes:
The dispositive issue we address is whether the trial court erred in concluding that Dr. Graves’s complaint failed to state any actionable claim against Drs. Kovacs and Ross. * * *In Duane Crocker v. State of Indiana, a 16-page opinion, Judge Bradford writes:
The elements of a cause of action for tortious interference with a contract are: “(1) the existence of a valid and enforceable contract; (2) the defendant’s knowledge of the existence of the contract; (3) the defendant’s intentional inducement of the breach of contract; (4) the absence of justification; and (5) damages resulting from the defendant’s wrongful inducement of the breach.” Bragg v. City of Muncie, 930 N.E.2d 1144, 1147 (Ind. Ct. App. 2010). Here, we believe the second amended complaint sufficiently put Drs. Kovacs and Ross on notice that they were alleged to have acted wrongfully and intentionally in helping to bring about the termination of Dr. Graves’s contractual privileges at Clarian/IU Health. Thus, the facts alleged in the complaint adequately stated a claim for tortious interference with a contract—something that Drs. Kovacs and Ross do not refute.
As Appellant-Defendant Duane Crocker drove Southbound on Interstate 65 in Tippecanoe County, Indiana State Police Trooper Joseph Winters pulled him over for speeding. Trooper Winters told Crocker to come sit in his car after he noticed, inter alia, that Crocker’s eyes were bloodshot and glassy, he was nervous, the rental car in which he was driving had been rented to another person, and his hand shook approximately two inches up and down when he produced his driver’s license. After Crocker gave inconsistent answers to Trooper Winters’s questions, Trooper Winters obtained Crocker’s consent to search his vehicle. The search uncovered ten bales of cellophane-wrapped marijuana in the trunk of Crocker’s rented vehicle. During a police interview, Crocker admitted that he had been paid to transport the marijuana from Chicago to Cincinnati.NFP civil opinions today (4):
Crocker contends that the trial court abused its discretion in admitting evidence obtained during his traffic stop, arguing that Trooper Winters violated his rights pursuant to the United States and Indiana Constitutions. We conclude that, under the circumstances of this case, Crocker was subjected to an illegal custodial interrogation without being advised of his rights beforehand and therefore hold that the incriminating statements made to police should have been suppressed. We also conclude, however, that this error is harmless, as Crocker’s consent to the search of his vehicle was valid and the physical evidence obtained therein was sufficient to sustain his convictions. We affirm.
NFP criminal opinions today (5):
Ind. Decisions - Supreme Court decision in Berry v. Crawford posted
In Tim Berry, Auditor of State; M. Caroline Spotts, Principal Clerk of the House of Representatives; and The State of Indiana/ Brian C. Bosma, Speaker v. William Crawford, et al., a 25-page, 3-2 opinion, including a 9-page dissent from Justice Rucker and a 1-page "concurring in part and dissenting in part," Chief Justcie Rucker writes:
With this case we confront whether the judicial branch may, consistent with the Indiana Constitution, review actions of and intervene in the internal management of the legislative branch, specifically the decision of the House of Representatives to collect fines from House members who left the state to prevent the formation of a quorum. We hold that when, as here, the Indiana Constitution expressly assigns certain functions to the legislative branch without any contrary constitutional qualification or limitation, challenges to the exercise of such legislative powers are nonjusticiable and the doctrine of separation of powers precludes judicial considera-tion of the claims for relief, and the defendants' request for dismissal of the plaintiffs' claims should have been granted in full. * * *
Although courts in general have the power to determine disputes between citizens, even members of the Indiana General Assembly, we hold that where a particular function has been expressly delegated to the legislature by our Constitution without any express constitutional limi-tation or qualification, disputes arising in the exercise of such functions are inappropriate for judicial resolution. The case before us involves such nonjusticiable claims for relief on which the judicial branch must decline to pass judgment. The trial court erred in ruling on the merits of this dispute. Both the issuance and collection of fines as legislative discipline are functions con-stitutionally committed to the legislative branch without express limitation or qualification by our Constitution. We therefore reverse the judgment of the trial court, remand, and direct the trial court to grant the defendants' motion to dismiss for lack of justiciability.
David and Massa, JJ., concur
Rucker, J. dissents with separate opinion
Rush, J., concurs in part and dissents in part with both the majority and the dissent, with separate opinion.
[J. Rush] I write separately because I see the narrow justiciability test articulated by the majority as entirely consistent with Roeschlein v. Thomas, 258 Ind. 16, 280 N.E.2d 581 (1972). I do not share Justice Rucker’s concern that today’s test “finds no support in our long standing case authority,” is “one we have never adopted,” or “abandons this Court’s own authority on the question of when an issue is justiciable in favor of a test apparently endorsed in other jurisdictions.” * * *
But I join the dissenting opinion in all other respects. As Justice Rucker observes, this case is not about the House’s authority to impose these fines (which were a patently non-justiciable exercise of its Article 4, Section 14 power to discipline its members), but only whether it may collect the fines in this particular manner. On that point, I share his understanding of Article 4, Sec-tion 29 as an “express constitutional limitation” that makes this limited question justiciable. Ac-cordingly, I would also reach the Wage Payment issue on its merits and resolve it as Justice Rucker does.
In sum, I concur in part in the majority opinion because I understand it to state the same justiciability test we have always followed. For that same reason, I cannot join in the opening para-graph, or first sentence of Part II, of Justice Rucker’s dissent. But because I disagree with the ma-jority’s application of that test, I join the dissenting opinion in all other respects.
[J. Rucker begins] As I understand the majority’s position, this Court has the authority to decide the issue presented to us today, but for matters of “prudence” the Court declines to exercise that authority. And in determining whether prudence demands this Court should not intervene, the majority adopts a test that finds no support in our long standing case authority. That is, an “express constitutional limitation” on an otherwise constitutionally sanctioned legislative act. Slip op. at 10, 11 (emphasis added). In other words, according to the majority, so long as a particular constitutional provision permits the Legislature to take certain action, then the Court will not intervene unless another constitutional provision expressly limits the legislature from taking that action. We have never adopted such a test, which in my view would effectively preclude review of almost any legislative act. Instead this Court’s jurisprudence teaches that an issue is nonjusticiable only when “[o]n its face [the Legislature] was acting pursuant to specific constitutional authority and not contrary thereto . . . .” Roeschlein v. Thomas, 280 N.E.2d 581, 589 (Ind. 1972) (holding that the legislature’s recording of yeas and nays in its journal was within the exclusive province of the legislature and not subject to judicial examination); see also Ellingham v. Dye, 99 N.E. 1, 8 (Ind. 1912) (rejecting the argument that the general grant of legislative authority under Article 4 of the Indiana Constitution included the authority to draft an entirely new constitution in light of conflicting language in Article 16, which although it did not expressly limit the legislature’s power in this regard, it did outline specific procedures for amending the constitution). Here, in my view, the Legislature appears to have been acting contrary to specific constitutional authority. And thus the issue before us does not support the “prudence” the majority invokes. Therefore I respectfully dissent. * * *
The House’s constitutionally-granted Legislative discretion to punish its members does not include the discretion to reduce its members’ compensation. Defendants’ actions are in direct conflict with Article 4, Section 29 of the Indiana Constitution. Hence, I would hold Plaintiffs’ wage payment claims justiciable and I would affirm the trial court’s order to the extent it finds Defendants violated Indiana Code section 22-2-5-1.
Ind. Decisions - Decision in Legislative Fines case
Here is what the Court will rule:
ALTHOUGH COURTS IN GENERAL HAVE THE POWER TO DETERMINE
DISPUTES BETWEEN CITIZENS, EVEN MEMBERS OF THE INDIANA
GENERAL ASSEMBLY, WE HOLD THAT WHERE A PARTICULAR FUNCTION
HAS BEEN EXPRESSLY DELEGATED TO THE LEGISLATURE BY OUR
CONSTITUTION WITHOUT ANY EXPRESS CONSTITUTIONAL LIMITATION
OR QUALIFICATION, DISPUTES ARISING IN THE EXERCISE OF SUCH
FUNCTIONS ARE INAPPROPRIATE FOR JUDICIAL RESOLUTION. THE
CASE BEFORE US INVOLVES SUCH NONJUSTICIABLE CLAIMS FOR
RELIEF ON WHICH THE JUDICIAL BRANCH MUST DECLINE TO PASS
JUDGMENT. THE TRIAL COURT ERRED IN RULING ON THE MERITS
OF THIS DISPUTE. BOTH THE ISSUANCE AND COLLECTION OF
FINES AS LEGISLATIVE DISCIPLINE ARE FUNCTIONS CONSTITUTION-
ALLY COMMITTED TO THE LEGISLATIVE BRANCH WITHOUT EXPRESS
LIMITATION OR QUALIFICATION BY OUR CONSTITUTION. WE
THEREFORE REVERSE THE JUDGMENT OF THE TRIAL COURT, REMAND,
AND DIRECT THE TRIAL COURT TO GRANT THE DEFENDANTS' MOTION
TO DISMISS FOR LACK OF JUSTICIABILITY. ------ DICKSON, C.J.
DAVID AND MASSA, JJ., CONCUR.
RUCKER, J., DISSENTS WITH SEPARATE OPINION.
RUSH, J., CONCURS IN PART AND DISSENTS IN PART WITH BOTH
THE MAJORITY AND THE DISSENT, WITH SEPARATE OPINION.
Ind. Gov't. - "Face of Indiana changes: New census report shows population is diversifying nationwide"
Maureen Hayden, CNHI Statehouse Bureau, has the story today in the Pharos-Tribune. A few quotes:
Fueled by immigration and high rates of birth, particularly among Hispanic Americans, the nation’s racial and ethnic minorities are growing more rapidly in numbers than whites.
“This shows the changing face of Indiana and America,” said demographer Matt Kinghorn of the Indiana Business Research Center at Indiana University.
Indiana, where 81 percent of the population is white, remains less diverse than the rest of the nation, which is now 63 percent white.
But a closer look at the racial and ethnic make-up of different age groups signals the shift: While 91 percent of Hoosiers over 65 are white, just 70 percent of Hoosier children under 5 are white. And in that 65 and over group of Hoosiers, less than 2 percent are Hispanic; of Hoosiers that are 5 and under, 11.4 percent are Hispanic.
The contrast between the oldest and the youngest Hoosiers also shows up in race: Just shy of 6 percent of Hoosiers 65 and older are black; just over 11 percent of Hoosiers are 5 are black.
The shift also shows up in the median ages of demographic groups: The median age for whites in Indiana is 40.2 years; it’s 31.3 for blacks, 30.6 for Asians, and 24.5 for Hispanics. For Hoosiers identified as bi-racial or multi-racial, the median age is 15.6 years.
“Indiana is becoming more diverse from the ground up,” Kinghorn said.
That’s even more true in the rest of the nation: For the first time, America’s racial and ethnic minorities now make up about half of the under-5 age group. * * *
Indiana economist Michael Hicks, head of the Center for Business and Economic Research at Ball State University, said local communities should embrace the increasing diversity, especially that driven by immigration, as good for growth: Existing employers will need to fill the jobs vacated by retiring workers, while potential employers will also need workers.
“For communities all around Indiana, immigration acceptance is important.”
Asians are the fastest growing racial or ethnic group in the U.S., now comprising almost 19 million people. That’s true in Indiana as well. Of the state’s 6.5 million people, only 113,196 are Asian. But that number marks an almost 10 percent growth just from 2010.
In that same two-year period, from 2010 to 2012, the percent of blacks in Indiana rose by less than two percent; the percent of Hispanics rose just short of 6 percent; the number of people identified as more than one race rose by just over 7 percent.
Ind. Decisions - Supreme Court decides legislative fines case
The Court's public information office has just announced the decision will be handed down "today."
For background, here is a Jan. 4th ILB post with the briefs and a link to the oral argument in the case, Berry v. Crawford.
ILB readers may remember that the oral argument with the Chief Justice's call for compromise. But see this Feb. 12th ILB entry, headed " Supreme Court declines to compel mediation in legislative fines case ."
Courts - Jockeying for cases before the SCOTUS
Joan Biskupic, reporting for Reuters, has a fascinating, long story today headed "For top U.S. lawyers, case in Guam is rare prize", that begins:
Steven Levin lives alone on a boat docked off the coast of the Pacific island of Guam, about as far away from the U.S. mainland as an American resident can get. He has no wife or kids, no job, no phone or Internet service.
But last year, the itinerant 64-year-old had something of great value to elite lawyers half a world away: a case that reached the U.S. Supreme Court. Within hours after the justices announced that they would hear it, attorneys at some of the nation's most prestigious law firms began pitching their services to Levin, offering to represent him for free.
The fact that Levin's case presented a procedural question stemming from a cataract operation - and not a momentous issue of constitutional law or social policy - did not deter the members of such firms as Akin Gump, Mayer Brown and Skadden Arps. They tracked Levin down using the only contact information they had, an email address he listed on his court petition, and touted their high-court credentials.
"I have argued 31 cases in the Supreme Court, and have briefed literally scores of cases there," Patricia Millett of Akin Gump wrote Levin on September 26, less than 24 hours after the court issued its one-sentence order agreeing to hear his case. Two days later, Paul Wolfson of Wilmer Hale wrote, "You may find it useful to have lawyers representing you who have been before the Court many times," noting, "I have personally argued there 20 times." Andrew Tulumello of Gibson Dunn boasted of his firm's record: "We have argued more than 15 cases in the last several years - more than any other law firm."
These emails, which Levin provided to Reuters, attest to a little-known phenomenon at the apex of the U.S. legal system. A small coterie of powerful lawyers at wealthy private firms dominates the lectern at the Supreme Court. They work hard to get cases, even if for some it means not charging for their services. Racking up appearances at the Supreme Court - which hears only about 70 cases a year - represents prestige and publicity and, in some cases, the potential to draw high-paying clients on other matters.
Monday, June 17, 2013
Ind. Gov't. - "BMV seeks clarity on judge's ruling on Indiana Youth Group license plates"
The Indiana Bureau of Motor Vehicles has issued an order of remand on a judge’s ruling that the Indiana Youth Group, an organization that advocates for gay and lesbian youth, can start selling its specialty license plate again, The Indianapolis Star has learned.ILB: Looking back at the "Recommended Order" linked in the May 31st ILB entry, here is the final paragraph:
That essentially means the BMV is requesting the judge provide more clarity on her decision, but not that the BMV is fully appealing it.
“This does not shut the door at all on IYG getting their plates back,” BMV spokesman Josh Gillespie said. “We’re just looking at some further clarity on some issues that we felt were a little ambiguous.”
Less than a month ago, an administrative judge in the BMV ruled that the group did not illegally sell or auction specialty license plates with low-digit numbers, as the BMV alleged, and that the BMV was wrong to terminate the group’s right to sell the plates last year just three months after it started selling them.
The Indiana Youth Group would have received the specialty plates 30 days after the hearing -- if neither side had appealed or issued an order of remand. Now it’s unclear when that may happen, or how long it will take the judge to review the order of remand.
VI. Appeal RightsAdditionally, here is the language of IC 4-21.5-3-29(b), part of the Administrative Orders and Procedures Act (AOPA):
Either party may request a reconsideration of this recommended order by mailing a written request to the following address: Indiana Bureau of Motor Vehicles, Hearing Department, 100 North Senate Ave., Rm N404, Indianapolis, IN 46204. Requests for reconsideration must be received by the BMV within eighteen (18) days of the date this recommended order is signed. If no request for reconsideration is received by the BMV within eighteen (18) days, this
recommended order becomes the final order of the BMV on the nineteenth (19th) day.
DATED: May 28, 2013
(b) After an administrative law judge issues an order under section 27 of this chapter, the ultimate authority or its designee shall issue a final order:
(2) modifying; or
the administrative law judge's order. The ultimate authority [that would be BMV] or its designee may remand the matter, with or without instructions, to an administrative law judge for further proceedings.
Courts - More on 2 of today's SCOTUS decisions, Salinas and Actavis
From Orin Kerr blogging at The Volokh Conspiracy, a long post titled "Do You Have A Right to Remain Silent? Thoughts on the 'Sleeper' Criminal Procedure Case of the Term, Salinas v. Texas," that begins:
This morning the Supreme Court decided a very important criminal procedure case, Salinas v. Texas, by a 5-4 vote. I’m guessing that you haven’t heard of Salinas. And it probably won’t get much attention in the press. But it should: Salinas is likely to have a significant impact on police practices. And it’s a fascinating case for legal nerds, too. So I thought I would explain the issue in Salinas and offer some thoughts on why it matters and what it might mean.From Lyle Denniston, a post late this afternoon headed "Opinion recap: 'Pay to delay' in deep trouble" that begins:
Showing a strong suspicion that big drug companies with deep pockets may be using their money to shield shaky patent rights, the Supreme Court on Monday for the first time cleared the way for antitrust lawsuits to challenge payoffs between brand-name drugmakers to keep would-be competitors who make generic substitutes temporarily out of their market.
But winning such lawsuits will hardly be easy, because the Court refused to start with the premise that such payments are probably illegal. The five-to-three decision in Federal Trade Commission v. Actavis (docket 12-416) was based far more on antitrust than patent law, and was at least a warning that settling lawsuits — at least in the drug industry — is a practice not necessarily free from risk. (Justice Samuel A. Alito, Jr., took no part in the ruling.)
What was at stake in the case was a legal practice that has shown up most prominently in the drug industry: the so-called “pay to delay” practice under which a holder of a brand-name patent, after having its patent rights challenged, fends off the potential competition from a generic company with a big dollar payoff, running into tens of millions of dollars, in order to keep the patent monopoly intact.
Not Law - But LOL! On the Internet, the NSA Definitely Knows You’re a Dog
Ind. Law - "Juvenile offenders given a second chance: Dual sentencing will start in Indiana in July" Also Paula Cooper released today, nearly 30 years after crime at age 15
Monica Foster is a longtime public defender who’s been pushing uphill in the legal system for a long time, so when she says the General Assembly is making progress protecting the rights of the disenfranchised, it’s worth stopping to listen to her.The new law is HEA 1108, Sentencing alternatives for youthful offenders.
Foster has praise for a new law set to go into effect July 1 that changes the way the juvenile offenders tried in adult court are punished for their crimes.
Called “dual sentencing,” it allows state court judges to hand down two sentences: One to be served as a juvenile and the other to be served as adult.
Under the law, the second is conditional on the first: If a young offender responds well to the intensive supervision and treatment offered in a state prison’s juvenile unit, a judge can suspend the adult prison sentence when that offender turns 18 and send him or her home — or into community corrections or another alternative short of prison.
Likewise, if that young criminal proves bad to the bone, the judge can keep him or her locked up.
To borrow someone else’s analogy: the idea is to give a young offender just enough rope to pull himself out of a life of crime, or to hang himself and wind up in prison.
More from the story:
It took some hue and cry from [Foster] and other veterans of Indiana’s juvenile justice system to get the law passed.Coincidentally, Paula Cooper, mentioned above, was released today (CBS News story):
It was Foster who helped call national media attention to the lack of sentencing options for crime-committing children tried as adults when she took on the appeals case of Paul Henry Gingerich. At 12, he made history as the youngest person in Indiana to be sent to prison as an adult.
His crime was awful — he helped a friend shoot and kill the friend’s stepfather as part of a plan to run away from home. But Foster argued he should have been tried as a juvenile, not an adult. (The Court of Appeals has ordered a legal do-over, sending the case back to juvenile court.)
Foster knows the power of a good hue and cry. In 1987, she was part in an international campaign to save 15-year-old Paula Cooper from being executed by the State of Indiana for fatally stabbing an elderly woman in Gary.
The outpouring of protests against the girl’s death sentence — including a condemnation of it by Pope John Paul II — caused a rethinking of both the sentence and the law. In 1989, after the Indiana General Assembly raised the minimum age for the death penalty, from 10 years old to 16, Cooper’s sentence was commuted to 60 years in prison.
Indiana’s new dual-sentencing law might not work. There are fears it will be used to send more children into the adult criminal system, and fears, based on experience in some states, that black and Hispanic juveniles will be sent on to prison more frequently than their white counterparts.
But Foster sees the potential in giving judges more options to help juvenile offenders become law-abiding citizens. “The law,” said Foster, “is unquestionably right.”
... after serving a prison term that was shortened after the state Supreme Court intervened.Here is the July 13, 1989 Indiana Supreme Court opinion in Cooper v. State.
Cooper's death sentence at such a young age sparked international protests and a plea for clemency from Pope John Paul II. Now 43 years old, Cooper is being given a second chance at her life. * * *
The Indiana Supreme Court set Cooper's death sentence aside in 1988 and ordered her to serve 60 years in prison after state legislators passed a law raising Indiana's minimum age limit for execution from 10 to 16. The state's high court also cited a 1988 decision by the U.S. Supreme Court barring the execution of juveniles younger than 16 at the time of the crime.
Since then, the U.S. Supreme Court has found it unconstitutional to execute anyone younger than 18.
"People still know about this case," Indianapolis attorney Jack Crawford, who was the Lake County prosecutor during Cooper's murder trial, told The Indianapolis Star. "The name Paula Cooper still resonates, and she's going to attract some attention when she is released."
But, he said, Cooper has done her time and may yet contribute to society. Crawford said he has come to oppose the death penalty since Cooper's conviction.
Cooper's sister, Rhonda Labroi, said she hopes people will see Paula as more than a killer. After getting in trouble 23 times during her time in prison, Paula Cooper turned to education, earning a bachelor's degree in 2001.
Here is Tim Evans' long Indianapolis Star story, published June 16th, headed "Paula Cooper, once a teen on Indiana's Death Row, to be released from prison on Monday." Some quotes from far into the story ("page" 4 of 5):
[Indianapolis attorney Jack Crawford, who was the Lake County prosecutor when Cooper was charged and convicted] remembers the shift in public reaction. You don’t forget, he explained, when an emissary from the Pope shows up at your office. Amnesty International also became involved ,and the case took on a life of its own in Europe, particularly in Italy.
Letters and petitions signed by death penalty opponents flooded the prosecutor’s office and, later, the Indiana Supreme Court. An Indiana Historical Society background sheet on items in its collection related to the case notes: “Appeals were made to the Indiana Supreme Court, which received two million signatures; to Governor Robert Orr, who received an appeal from the Pope in September 1987; and to the United Nations, which received a million signatures.”
The uproar came as the U.S. Supreme Court was wrestling with the issue of sentencing teens to death. In 1988, the high court ruled it was unconstitutional to execute anyone who was younger than 16 at the time they committed a crime. The following year, Indiana lawmakers upped the minimum age from 10 to 16.
Indiana raised its minimum age to 18 in 2002. In 2005, the U.S. Supreme Court ruled it unconstitutional to execute anyone younger than 18.
Courts - SCOTUSblog has a sketch artist
SCOTUSblog has recently added a sketch artist, Art Lien, and he adds a lot to the blog. See, for example, the masthead, and this drawing today of J. Scalia announcing the opinion in Arizona v. InterTribal Council.
Ind. Decisions - Transfer list for week ending June 14, 2013
[Search all the Transfer Lists: The ILB feature, "Search the ILB Transfer Lists," allows you to do just that, back to Feb. 2004. Check it out. Read the instructions. Note that the search is now current through the April 12, 2013 list.]
Here is the Clerk's transfer list for the week ending Friday, June 14, 2013. It is one page (and 2 cases) long.
The following transfers were granted last week:
- Robert Bowen v. State of Indiana - transfer was granted, with opinion, on June 14th. See ILB post here.
- Harold O. Fulp, Jr. v. Nancy A. Gilliland - The Court held oral argument in this case on June 6th, with transfer pending. The new Supreme Court Cause # is 41S011306TR00426. No opinion has yet issued.
Ind. Courts - "ACLU of Indiana Files Suit Against FSSA: Changes to Medicaid Waiver program put Hoosiers 'at grave risk of immediate and irreparable harm.'"
From a news release:
Last Friday, the ACLU of Indiana filed a lawsuit against the Indiana Family and Social Services Administration challenging the way in which the agency operates two of its Medicaid waiver programs, the Community Integration and Habilitation Waiver (CIH) and the Aged and Disabled Waiver (A&D). The programs, which serve thousands of Hoosiers, offer services that enable people like Steimel to live in their communities even though their disabling conditions would otherwise require that they be institutionalized.
Regarding the class-action lawsuit, which may help thousands of Hoosiers, ACLU of Indiana Staff Attorney Gavin Rose said, "the Americans with Disabilities Act of 1990 requires that states provide services to individuals with disabilities in the least restrictive setting appropriate to their needs. Right now, Indiana is not living up to that mandate."
FSSA's CIH Waiver (formerly known as the Developmental Disabilities Waiver) historically has maintained a lengthy wait-list that often delayed services to needy individuals for 10 to 15 years. In the fall of 2012, FSSA eliminated the wait-list and began offering services only to people who meet certain restrictive "priority criteria." Many people who once would have been eligible to receive services through the program can never become eligible under the new rules.
Also, FSSA recently determined that people with developmental disabilities may no longer receive services through its A&D Waiver unless they also possess so-called "skilled medical needs"-- like suctioning, ventilation, or medication administration -- that require the assistance of a registered nurse. * * *
The lawsuit alleges that the agency's policies violate the Americans with Disabilities Act of 1990 and the Rehabilitation Act of 1973. The suit seeks to reinstate the wait-list for placement on the CIH Waiver and eliminate the "priority criteria" requirement that would likely result in drastically reduced care for thousands of people. It also seeks to compel FSSA to provide notice and an opportunity for applicants to appeal the elimination of their place on the wait-list and to provide sufficient slots for the wait-list to move at a reasonable pace.
Karla Steimel, et al. v. Minott, et al., Case no. 1:13-cv-957-JMS-MJD, was filed June 14 in the U.S. District Court Southern District of Indiana, Indianapolis Division.
Ind. Decisions - Court of Appeals issues 0 today (and 1 NFP)
For publication opinions today (0):
NFP civil opinions today (1):
NFP criminal opinions today (0):
Courts - Opinions expected this morning from SCOTUS, beginning at 10 AM
Watch SCOTUSblog, or watch for some highlights here...
First case decided, Salinas v. Texas - 5th amendment and silence - case page. "Salinas, decided 5-4, holds that the government can comment on a witness's silence in not answering police questions." SCOTUSblog
Third case, Alleyne v. United States. Case page. "Any fact that increases the mandatory minimum is an "element" that must be submitted to the jury. This is a major criminal law ruling on the right to a jury trial. The Court reverses an earlier contrary ruling." Tom Goldstein
Maracich v. Spears, the Driver's Privacy Protection Act case. "Amy Howe: An attorney's solicitation of clients is not a permissible purpose covered by the DPPA's litigation exception. Justice Kennedy has the opinion. It is a 5-4 decision; Justice Ginsburg, joined by Scalia, Sotomayor, and Kagan." Case page. "Amy Howe: This was a case in which a group of lawyers had tried to file a class action against a group of car dealers in South Carolina on behalf of four people who had purchased cars recently. They got information from the DMV regarding other would-be plaintiffs."
Final decision today (decisions again Thurs.): Arizona v. Inter Tribal Council - "Amy Howe: This is the case involving Arizona's requirement that would-be voters provide proof of citizenship before being able to register to vote. Arizona's proof of citizenship requirement is preempted by the federal law requiring that states use the federal voter registration form." Case page.
Ind. Gov't. - "Ethics rules are good as their enforcement" [Updated]
That is the headline to Lesley Weidenbener's Sunday column in the Louisville Courier-Journal. Some quotes:
I’ve always been a little skeptical about whether so-called cooling off periods are an effective way to prevent public officials from using their government positions to help companies they might later go to work for.Indiana Legislative Insight's current issue ($$$) also reports briefly on the Cline story:
Some may think I’m naïve. But actually, it may be that I’m too cynical. I’ve always thought that a one-year wait is just not much of a disincentive for a public employee or a private firm that is willing to be unethical.
But I’m confident of one thing: They certainly won’t work well when they’re not enforced.
A few years back — just after then-Gov. Mitch Daniels was elected — the state put a cooling off period in place. I’m simplifying, but it says that a state employee has to wait at least one year before going to work for a company if the employee had any say-so over contracts, regulatory issues or licensing that involved the firm. * * *
Daniels and others argued that the rule helps not only with an actual ethics problem but also with the perception of a problem and I certainly think that’s a worthwhile point. Lawmakers recently made the same point when the General Assembly put in place rules that require them to wait one year before going to work as a lobbyist.
But if that’s the case — if these rules are to be used to help the public feel more trusting of public officials — then they need to be enforced. Vigorously.
There’s no point in having a rule for which there are easy exceptions. And last week, Gov. Mike Pence made a big one when he waived the one year cooling off period for Indiana Department of Transportation Commissioner Michael Cline, who is going to work for Purdue University. * * *
As the head of INDOT, the commissioner is ultimately responsible for all the agency’s contracts and Purdue has a couple big ones. According to a story written by Niki Kelly, the Statehouse reporter for The Journal Gazette in Fort Wayne, the school has contracts to administer two programs that involve more than $27 million. So it seems fairly obvious that Cline should have to wait a year to go to work at Purdue.
But there’s a provision in the ethics rules that allows the governor (or in some cases an agency head) to waive the cooling off period when doing so would be “consistent with the public interest.” And in this case, that’s just what Pence did: He said that Cline going to work for Purdue was of enough importance for the public that he shouldn’t have to follow the rule. * * *
We’ve seen what can happen when the Indiana Ethics Commission isn’t strict. A few years ago, they OK’d Duke Energy’s hiring of a regulatory agency’s administrative law judge who had been working on one of their cases. Later, that exploded into a scandal that led both then-Gov. Daniels and Duke to fire several key officials.
I thought then that the state would get stricter about enforcing the rules. But Pence’s decision to waive the cooling off period for Cline is more evidence that the rules apply sometimes — and not others.
That’s no way to combat the public’s pessimistic perception of government.
After receiving a special “public interest” waiver from the Governor’s Office on certain post-employment ethics restrictions, Indiana Department of Transportation Commissioner Mike Cline is likely to be the latest state official to jump the ship of state to join former Gov. Mitch Daniels (R) at Purdue University. Cline will become Purdue’s vice president for physical facilities, but the job description will no longer require him to be “representing Purdue before the executive and legislative branches of state government.”ILI also reports on another application, which the Ethics Commission denied:
James R. Jones, state archaeologist since 1991, must serve a one-year cooling-off period — as well as be subject to a lifetime ban from working on certain particular matters — following a 3-2 vote of the State Ethics Commission. Jones had been considering retirement and a possible private consulting assignment.Really, a lifetime ban? Unfortunately, neither the minutes nor the rulings of the State Ethics Commission appear to be available online.
[Updated 6/18/13] The FWJG has an editorial today headed Erratic on ethics, here is a portion:
The thing about ethics policies, however, is that they must be consistently enforced to work. The waiver Gov. Mike Pence granted to Indiana Department of Transportation Commissioner Michael Cline before his hearing with the state ethics commission, clearing Cline to accept a vice president’s position at Purdue University, suggests the rules aren’t absolute.
As Niki Kelly reported, a waiver letter written by Pence’s chief of staff claimed that Cline would not lobby for Purdue, even though lobbying was specified as a job responsibility in the INDOT commissioner’s initial offer letter.
Purdue’s ties with INDOT are tight, as Kelly noted. The Joint Transportation Research Program involves a collaboration between the university and the state on planning, design, construction, operation, maintenance and efficiency of roads and bridges. A pending contract would pay up to $26 million.
State law prohibits state officials from accepting a job from an employer if they were engaged in the negotiation or administration of contracts with the employer on behalf of the state, and were in a position to make decisions affecting the outcome of the negotiations and administration.
The waiver claims Cline had only limited involvement with the Purdue contracts, but it’s a stretch to believe the administrator was far removed.
Ind. Gov't. - Dispute in Elkhart over public records access
The long story today in the Elkhart Truth, reported by Dan Spalding, begins:
ELKHART — A new complaint against the city of Elkhart has been filed with Indiana’s Public Access Counselor — this one over the availability of public records.
The paperwork was filed by Melvin Bontrager on behalf of business owner David Schemenauer and a group of businesses who have become vocal critics of Elkhart’s compact fee policy and Mayor Dick Moore. They are seeking details from the city on an arrangement with Ontwa Township in Edwardsburg, Mich., where the township oversees sewer service that is treated by the city of Elkhart.
The complaint was filed last week and came at the same time the public access counselor offered an advisory opinion on a complaint filed by Elkhart city councilman Brian Dickerson. In the ruling, the state said Moore’s sewer task force did not violate the Open Door Law.
The business coalition has made several requests for information from the city related to city sewer service as they continue to question policies for both commercial and residential sewer customers. While chiefly concerned about the commercial compact policy, the group has aligned itself with Valley View residents, some of whom have declined to sign a new residential agreement with the city.
The complaint with the public access counselor came after the city declined to provide information about the existence of an annual credit Ontwa Township may or may not receive from the city of Elkhart for capital expenditures, according to Schemenauer.
The city declined to provide information because it “is currently in a contractual dispute with Ontwa Township,” according to a letter from city utility attorney Margaret Marnocha.
Ind. Gov't. - "Indy seeks to reduce IMPD lawsuits: $4.1 million paid in last year, $28 million pending"
John Tuohy has this long story today in the Indianapolis Star. It begins:
Indianapolis officials will scrutinize all lawsuits filed against the Indianapolis Metropolitan Police Department in the last five years to determine how to reduce litigation against the department.
The city has paid $4.1 million in IMPD settlements in the last year alone (from May 2012 through May 2013), with another $28 million in claims pending, and officials want to know if the department and city lawyers are learning enough from those losses.
“We need a high-end analysis,” said City-County Council member Ben Hunter. “It’s something corporations have been doing for years. You constantly analyze to reduce your liability and exposure.”
The lawsuits against IMPD make up 75 percent of all lawsuits against the city, with the Department of Public Works a distant second.
Courts - 19 SCOTUS opinions expected to issue by the end of June
SCOTUSblog has the list this morning. Note also its redesigned site, a great visual improvement!
The SCOTUS will announce some of these 19 opinions this morning beginning at 10:00 AM.
Catch-up: What did you miss over the weekend from the ILB?
From Sunday, June 16, 2013:
- Ind. Decisions - Upcoming oral arguments this week and next
- Ind. Decisions - More on: UNITED STATES OF AMERICA v. $196,969.00 UNITED STATES CURRENCY
- Courts - Kentucky same-sex case could be landmark re spousal immunity
- Ind. Courts - "Judgment time in ballot case: 4 to be sentenced Monday"
- Ind. Courts - Attorney claims Logansport officials falsified documents
- Ind. Law - "Will jobs be there for law school grads?" Dean of new Ind.Tech law school questioned
- Courts - Chart: "How the Court Could Rule on Same-Sex Marriage"
From Saturday, June 15, 2013:
- Courts: "The SCOTUS Renders Another Decision Interpreting the Ex Post Facto Clause That Makes It More Difficult to Incarcerate Sex Offenders"
- Ind. Gov't. - Marion County redistricting dispute in court Monday
And don't miss from Friday, June 14, 2013:
Ind. Decisions - Upcoming oral arguments this week and next
This week's oral arguments before the Supreme Court (week of 6/17/13):
Thursday, June 20th
- 9:00 AM - American Cold Storage v. City of Boonville (87S01-1303-PL-157) - Landowners who oppose annexation by the City filed a remonstrance petition, but the Warrick Superior Court dismissed a petition after ruling that an inadequate number of landowners in the annexed territory signed the petition. The Court of Appeals reversed and remanded, holding “the trial court erred, insofar as it counted the separate parcels that were acquired by the State to build State Road 62 rather than counting State Road 62 as a single parcel under the Remonstrance Statute.” American Cold Storage v. City of Boonville, 977 N.E.2d 19, 25 (Ind. Ct. App. 2012), vacated. The Supreme Court has granted a petition to transfer the case and has assumed jurisdiction over the appeal.
ILB: This is a 2-1 Oct. 9, 2012 opinion (2nd case) re the remonstrance statute and State-owned property.
- 9:45 AM - Demetriese Gunn v. State of Indiana (49A02-1202-CR-152) - Following a jury trial, Gunn was convicted of neglect of a dependent. The verdict form listed it as a Class D felony rather than the Class C felony with which Gunn had been charged. Apparently based on the responses of the attorneys present, the Marion Superior Court determined this was a clerical error and corrected the form to show a Class C felony. The Court of Appeals affirmed. Demetriese Gunn v. State, No. 49A02-1202-Cr-152 (Ind. Ct. App. Oct. 30, 2012) (NFP mem. dec.), trans. pending. Gunn has petitioned the Supreme Court to accept jurisdiction over the appeal.
ILB: This is an Oct. 30, 2012 NFP opinion.
Next week's oral arguments before the Supreme Court (week of 6/24/13):
Thursday, June 27th
- 9:00 AM - Matter of Adoption of C.B.M. (37S03-1303-AD-159) - The Jasper Superior Court denied a petition to set aside an adoption decree filed by a birth mother who had successfully appealed a prior order terminating her parental rights. The Court of Appeals reversed. Matter of Adoption of C.B.M., 979 N.E.2d 174 (Ind. Ct. App. 2012), vacated. The Supreme Court has granted a petition to transfer the case and has assumed jurisdiction over the appeal.
ILB: This is a Nov. 30, 2012 opinion, where a concurring opinion begins:
I agree with the majority that Birth Mother’s due-process rights were violated, she should have received notice of the adoption proceedings, and the adoption decree must be set aside. I also agree with the majority’s conclusion that the adoption statutes at issue are constitutional. My reasoning, however, is different. I conclude that the adoption statutes require notice of adoption proceedings to birth parents whose rights have been terminated but who have not exhausted their appeals."
- 9:45 AM - Richard Eric Johnson v. Gillian Wheeler Johnson (49S05-1303-DR-199) - The Marion Superior Court modified Father's child support obligation. The calculation of support included crediting Father for social security retirement benefits paid to the children and credited Mother for health insurance premiums paid for the children. The court also determined the amount of uninsured healthcare expenses Father owes Mother, declined Father's request to modify the parties' prior agreement on the payment of college expenses, and modified Father's parenting time. The Court of Appeals affirmed in part, reversed in part, and remanded. Johnson v. Johnson, No. 49A05-1202-DR-81 (Ind. Ct. App. Dec 4, 2012) (NFP mem. dec.), vacated. The Supreme Court has granted a petition to transfer the case and has assumed jurisdiction over the appeal.
ILB: This is an Dec. 4, 2012 NFP opinion. that concluded:
The trial court did not abuse its discretion in its order regarding Father’s prior uninsured health care expense obligation, parenting time, and college expenses. The trial court did abuse its discretion in calculating Mother’s health insurance premium credit, its order regarding parenting time transportation expenses, and in failing to address extracurricular expenses. Moreover, the trial court did not appropriately figure the credit to which Father is entitled toward his child support obligation because of Social Security retirement benefits the children receive. Accordingly, the trial court’s order is affirmed in part and reversed in part and remanded for the trial court to recalculate child support and amend its order accordingly.
Webcasts of Supreme Court oral arguments are available here.
This week's oral arguments before the Court of Appeals (week of 6/17/13):
Tuesday, June 18th
- 11:00 AM - State v. Robert Owens (49A02-1210-CR-817) In this interlocutory appeal, the State appeals from the trial court’s grant of Robert Owens’s motion to suppress evidence obtained following a police detention. Owens has been charged with Class A felony dealing in cocaine, Class A felony cocaine possession, two counts of Class D felony battery on a law enforcement officer, two counts of Class D felony resisting law enforcement, and Class D felony obstruction of justice. The State argues that, even if the initial detention was illegal, Owens’s subsequent criminal actions removed any taint, the police actions were reasonable under Article I, Section 11 of the Indiana Constitution, and evidence regarding Owens’s resisting law enforcement and battery on police officer charges would be admissible in any event.
The Scheduled Panel Members are: Judges Riley, Bradford, and Brown.
[Where: Indiana Court of Appeals Courtroom (WEBCAST)]
- 1:30 PM - Winston K. Wood v. State of Indiana (53A05-1208-CR-423) Winston K. Wood appeals his convictions for one count of leaving the scene of a boating accident resulting in serious bodily injury to a person, a Class D felony, and two counts of leaving the scene of a boating accident resulting in the death of a person, each as a Class C felony. On appeal, Wood raises the following issues: (1) whether the State presented sufficient evidence that Wood failed to comply with the duties required of a boater in an accident; (2) whether Indiana Code section 14-15-4-1 (pertaining to a boater’s duty during an accident) is unconstitutionally vague; (3) whether the trial court abused its discretion in denying Wood’s motion for discharge under Indiana Criminal Rule 4(C); and (4) whether Wood’s convictions and sentence violate principles of double jeopardy.
The Scheduled Panel Members are: Judges Kirsch, May, and Mathias.
[Where: Hoosier Boys State, Trine University,
- 2:00 PM - Robert E. Redington v. State of Indiana (53A01-1210-CR-461) Robert Redington was approached by members of the Bloomington Police Department while viewing a bar with a range finder from the third floor of a parking garage. Redington informed the police that he was in possession of a firearm, and the police located two loaded handguns in his pockets. Redington also was in possession of a loaded shotgun which was located in the trunk of his vehicle. Redington made statements to the police officers regarding the investigation of Lauren Spierer’s disappearance, and the police asked him if he would be willing to come to the police station for an interview, and Redington complied. Based upon Redington’s interactions with police, as well as the parking enforcement officer who alerted the police to his presence, Redington was transported to the IU Health Center in Bloomington for a mental evaluation. The police also searched Redington’s home and seized forty-eight firearms. The State filed a petition for a hearing to retain Redington’s seized firearms pursuant to Ind. Code Section 37-47-14 et seq., and, following the hearing, the court ordered that Bloomington Police retain the firearms. On appeal, Redington challenges the sufficiency of the evidence presented to retain his firearms, asserts that Ind. Code Section 37-47-14 et seq. is unconstitutional on grounds that it, as applied, violates Article 1, Section 32 as well as Article 1, Section 21 of the Indiana Constitution, and the Fifth Amendment of the United States Constitution, and that Ind. Code § 35-47-14-1(a)(2), as applied, is unconstitutional because it is void for vagueness. The Scheduled Panel Members are: Judges Riley, Bradford, and Brown. [Where: Indiana Court of Appeals Courtroom (WEBCAST)]
Tuesday, June 25th
- 1:30 PM - Billy L. Musgrave, Jr., and Kim A. Musgrave vs. Aluminum Company of America, et al ( 87A04-1205-CT-276) Bil and Kim Musgrave filed suit against The Aluminum Company of America, Inc. and a subsidiary (“Alcoa”) alleging damages from their exposure to toxic chemicals Alcoa had dumped in Warrick County. Following a three-week trial, a jury returned a general verdict in favor of Alcoa. The Musgraves appeal and assert the following: (1) that their complaint is not barred by Indiana’s two-year statute of limitations for tort actions; (2) that the trial court erroneously dismissed their claims against Alcoa arising from Bil’s alleged occupational exposure; and (3) that the trial court erroneously dismissed their claims for emotional distress under Indiana Trial Rule 12(B)(6). The Scheduled Panel Members are: Judges Najam, Bailey, and Barnes. [Where: Indiana Court of Appeals Courtroom (WEBCAST)]
- 2:30 PM - Eugene Hill vs. State of Indiana (49A02-1210-CR-797) Eugene Hill was convicted of Class A misdemeanor invasion of privacy and was ordered to serve a one-year sentence, which was suspended to probation. Approximately two months after he was sentenced, Hill violated his probation. After Hill admitted to the violations, the Marion Superior Court revoked his probation and ordered Hill to serve 180 days in the Marion County Jail, rather than in home detention as requested by Hill. On appeal, Hill argues the trial court abused its discretion when it ordered him to serve his sentence in the Marion County Jail. The Scheduled Panel Members are: Judges Mathias, Barnes, and Crone. [Where: Trine University Angola, Indiana]
ONLY those Court of Appeals oral arguments presented in the Supreme or Court of Appeals Courtrooms will be accessible via videocast.
The past COA webcasts which have been webcast are accessible here.
NOTE: For a printable version of this list of upcoming oral arguments, click on the date in the next line. Then select "Print" from your browser.
Sunday, June 16, 2013
Ind. Decisions - More on: UNITED STATES OF AMERICA v. $196,969.00 UNITED STATES CURRENCY
On June 11, the 7th Circuit reversed a ruling by Indiana federal district Judge Magnus-Stinson. Here is what the ILB posted at the time, quoting Judge Posner's introductory paragraph to the opinion, which included this statement:
In Indiana, where this case arose, the state constitution requires that “fines assessed for breaches of the penal laws of the State . . . [and] all forfeitures which may accrue” must be paid into the Common School fund, which finances education rather than law enforcement. Ind. Const. art. 8, §§ 2, 3. By inviting the federal government to conduct civil forfeiture relating to criminal cases in the Indiana state courts, local and state law enforcement can receive a substantial share of the forfeited criminal proceeds and avoid (or at least try to avoid) having to pay any of it into the Common School fund.After looking at the Posner opinion again, and going back and looking at Judge Magnus-Stinson's Nov. 14, 2012 ruling, it seems evident that the introductory statement is simply "background" or dicta, there is no other discussion of the Indiana Constitutional provision or the Common School Fund in the Posner opinion, in the companion case to which he refers in the introduction, or in the district court ruling.
Courts - Kentucky same-sex case could be landmark re spousal immunity
The Louisville Courier-Journal's Jason Riley has a long story today on a case pending in Kentucky's Jefferson Circuit Court. Some quotes:
Prosecutors say Geneva Case heard her spouse admit to killing a man two years ago and saw her clean blood out of the man’s van and abandon it in Southern Indiana.
Now, they argue, Case must testify about those facts, even though Kentucky law exempts spouses from being compelled to testify against each other.
The reason, they say, is that Case and the defendant, Bobbie Joe Clary, entered into a same-sex civil union in Vermont in 2004 — and Kentucky doesn’t recognize same-sex civil unions or marriages.
“That ceremony is not a ‘marriage’ that is valid and recognized under Kentucky law,” prosecutors said in a court motion, noting that marriage between members of the same sex is prohibited in Kentucky. “Geneva Case and the defendant cannot prove the existence of a marriage under Kentucky law.”
But attorneys for Clary say they are legally married and denying them the same marital rights others have would be a violation of the Constitution.
The case has become the first legal test in the state over forcing same-sex partners to testify against each other — raising the broader issue of whether the state recognizes marriages or civil unions that are legal elsewhere. The case could have ramifications for issues such as divorces and division of property after death.
“It is going to have a huge impact,” Angela Elleman, an attorney for Clary, said in an interview, noting that couples are leaving the state to marry and coming back with legal issues that are going to have to be resolved.
“It’s going to come up again and again and again,” she said.
Ind. Courts - "Judgment time in ballot case: 4 to be sentenced Monday"
Madeline Buckley's story today in the South Bend Tribune begins:
SOUTH BEND -- Once a prominent force in local politics, with his stout figure and bespectacled face a given at events like Dyngus Day, former chairman of the county's Democratic Party Owen "Butch" Morgan will be sentenced Monday for his role in a ballot fraud case that ended his more than 16-year career in scandal.
It is the end of a tale of the rise and fall of a man powerful in the local political scene, the role of a newspaper and the three government workers who did what he asked.
An investigative report by the South Bend Tribune and Howey Politics revealed in 2011 that hundreds of signatures were forged onto petitions that qualified Democratic presidential candidates for the 2008 Indiana primary.
Soon after, Morgan resigned his post and the St. Joseph County prosecutor's office filed felony charges against him and three former employees in the county's Voter Registration Office: Dustin Blythe, Bev Shelton and Pam Brunette.
Ind. Courts - Attorney claims Logansport officials falsified documents
A story today by Mitchell Kirk of the Pharos-Tribune begins:
The attorney representing a woman who filed a lawsuit against Logansport Mayor Ted Franklin and city council regarding the city’s ongoing power plant project states city officials have falsified two pieces of legislation, according to court records, a claim the city’s attorneys say is based on conjecture and improperly timed.There is much more in the story.
In March, Logansport attorney Jim Brugh filed the suit on behalf of Julie Kitchell, a Logansport resident. The suit claims the city engaged in the process of developing a public-private agreement with Pyrolyzer LLC to develop a new power plant before adopting an ordinance authorizing it to do so.
Cass County Superior Court II dismissed the case in April. Brugh has since filed an appeal in the Indiana Court of Appeals and attorneys representing the city have countered with a filing in the state supreme court.
A recent affidavit filed by Brugh in Cass Superior Court II states the ordinance and resolution authorizing the city to engage in negotiations for the development of the power plant were falsified by Franklin and Logansport Clerk-Treasurer Carol Sue Hayworth.
In the affidavit, Brugh writes he visited Hayworth’s office March 13 to acquire copies of the ordinance and resolution. The copies of the documents attached to the affidavit indicate Logansport City Council President Joe Buck had signed the resolution, but not the ordinance, and that Franklin had yet to sign either of them. Brugh goes on to state he requested copies of the documents after they had all been signed.
Brugh continues by citing a provision in Indiana Code that states a mayor must sign an ordinance within 10 days or else it is considered vetoed. The ordinance and resolution in question were passed March 4, meaning March 14 would have been the 10th day.
Brugh then writes he received a letter from Hayworth dated March 18 attached with copies of the ordinance and resolution, both signed by Buck and Franklin. The dates on their signatures read March 4. Brugh called into question how that could be possible if on March 13 the only documents available to Brugh were those that had yet to be properly signed.
“The documents were not signed on March 4; the Clerk and the Mayor have backdated the documents,” Brugh writes, adding that the ordinance and resolution should be considered void under Indiana Code because Franklin failed to sign them within 10 days.
“I sign hundreds of documents a week,” Franklin said in an interview responding to the claims. “I don’t have a photographic memory. The record reflects it was signed on March fourth so I have to assume I signed it on March fourth.”
Ind. Law - "Will jobs be there for law school grads?" Dean of new Ind.Tech law school questioned
Rebecca S. Green has a long story in Sunday's Fort Wayne Journal Gazette headed "Will jobs be there for law school grads? Dean defends Indiana Tech’s plans to open." Some quotes:
Peter Alexander is tired of explaining it.Accompanying the story are two tables, one showing "States with the worst ratio of the number of law school graduates to the average number of job openings from 2010 to 2020, from worst to best," and one showing "Tuition costs for law schools in Indiana and those close to northeast Indiana."
But the question keeps coming up: Why does Indiana need another law school?
Alexander is the dean of the newly created law school at Indiana Tech. And after a new set of statistics came out this month, showing again that there are, perhaps, more lawyers than needed, Alexander was again asked about it.
He is adamant: It’s not about the number of job openings versus the number of law school graduates. It’s about the quality of the law school graduate.
And Indiana Tech’s new law school will turn out high-quality graduates, making them necessities in any market, he said.
“If we do our jobs, then our students will be the ones law firms want to hire,” Alexander said. * * *
The Hoosier State has four law schools already – two public and two private. Indiana Tech’s is slated to open this summer. * * *
Over the past few years, universities noticed the potential profit available in developing a law school, which requires, as [Kendallville attorney Mike Yoder] put it, very little to operate other than a few open classrooms, the Internet and local attorneys willing to teach part time.
Again, he said, he is not speaking specifically of Indiana Tech, but “this is what happens in some cases.” * * *
Indiana’s law schools cost between $23,500 and $48,730 a year.
Indiana Tech will be at the low end of the scale for cost, Alexander said.
The school will charge tuition of $29,500 a year, plus $800 in fees.
The least expensive school in the state is the Robert H. McKinney School of Law at Indiana University in Indianapolis and the priciest is the University of Notre Dame.
Alexander said Indiana Tech’s new law school will stand out in how it prepares students to be lawyers.
Similar to a medical school approach to education, Indiana Tech students will do classroom work but spend time on practicums and externships.
Seventy-five Allen County judges and lawyers have already signed up to be mentors for the program, Alexander said.
“I think even the bench and the bar recognize we’re doing something different or they wouldn’t put their support behind it,” he said.
And the faculty brings years of experience from private practice, ready to share them with students in the classrooms and present them with real-world problems to solve, he said.
During the third year of law school at Indiana Tech, the students can work up to 40 hours a week for credit in nonprofit or governmental law, what Alexander calls a “semester in practice.”
“The whole orientation,” he said, “is different than the traditional law school model.”
The practical approach to legal education is something law firms have been clamoring for over the years, he said.
It is difficult, though, to determine how Tech’s approach differs from the offerings at other law schools within the state.
Valparaiso University’s Law School touts its extensive externship program – offering 90 positions in 176 offices for students. National Jurist named the school tops in the nation for externship opportunities.
IU’s Maurer School of Law also offers externships and other areas for experience, such as a pro-bono immigration project and the Inmate Legal Assistance Project, according to its website.
Indiana Tech will not have the opportunity for provisional accreditation until it has been in operation for a year.
It is being established using the American Bar Association’s Standards for the Approval of Law Schools, officials said.
After being in operation for one year, the law school can petition for provisional approval by the American Bar Association. The provisional status lasts for up to three years before the American Bar Association considers full approval, according to officials. * * *
To become a lawyer in Indiana, to take and pass the bar examination, one must have graduated from an accredited law school, and state bar officials did not differentiate between full or provisional accreditation. * * *
Indiana Tech is still taking applications for the law school, and a few students have been admitted already. The school is scheduled to open in August.
Courts - Chart: "How the Court Could Rule on Same-Sex Marriage"
Chart from the NY Times showing the alternative outcomes possible in the two marriage equality cases the SCOTUS will decide this month. The chart also illustrates which states will be impacted, depending on the outcome.
[More] See this story today from Richard Wolf at USA TODAY, headed "Supreme Court gay-marriage rulings: Anything but simple." It begins:
WASHINGTON — If the range of possible Supreme Court rulings on gay marriage this month requires a scorecard, the potential confusion arising from those decisions may demand a manual.
It's not as simple as whether gays and lesbians can marry or not, and whether they become eligible for federal benefits. The two decisions are likely to create new questions for couples in civil unions and those who move between states, as well as for employers.
Saturday, June 15, 2013
Courts: "The SCOTUS Renders Another Decision Interpreting the Ex Post Facto Clause That Makes It More Difficult to Incarcerate Sex Offenders"
The SCOTUS decision June 10th reversing the 7th Circuit in Peugh v. United States is criticized as making it more difficult to incarcerate sex offenders in this new article in Verdict by law professor Marci A. Hamilton. The article begins:
The national drive to identify and punish child predators took a step backward this week. While on its surface, the Supreme Court’s decision this week in Peugh v. United States does not deal with sex offenders, its impact will surely be felt in the sex-offender cases. As with the Court’s decision ten years ago in Stogner v. California, the Ex Post Facto Clause has once again been interpreted to make it more difficult to incarcerate criminals, and particularly sex offenders, as I will explain below.
Ind. Gov't. - Marion County redistricting dispute in court Monday
A redistricting battle that has pitted Indianapolis Mayor Greg Ballard against City-County Council Democrats for more than a year will get its day in court Monday.
That’s when a panel of five judges from Marion Superior Court will hear arguments from Republican and Democratic attorneys representing each side.
Appropriately enough, the hearing will be in the council’s chambers on the second floor of the City-County Building. That’s to accommodate the unusual number of judges, which Indiana law requires for the redistricting dispute.
For the last two months, attorneys representing the Republican mayor and the council Democrats — President Maggie Lewis, Vice President John Barth and Majority Leader Vernon Brown — have filed dueling, barb-filled court briefs.
Essentially, the case boils down to whether the division of the council’s 25 district boundaries was “made” last year — as required by law following the 2010 census — or in 2011, which would require a new map.
The lame-duck Republican council majority passed a redistricting plan in December 2011. But Ballard signed it into law on Jan. 1, 2012. Hence, Republicans argue that the mayor’s signing of the law on the first day of 2012 qualified as enacting the new district boundaries last year, as required.
Democrats argue the boundaries were actually drawn when the council passed the ordinance, late the prior year, and it doesn’t matter when Ballard signed the ordinance.
Regardless of whether Democrats are right, Republican attorney David Brooks wrote in a recent filing, the GOP maps still should be legal because another part of state law allows for redistricting anytime except during the year leading up to an election. The outgoing Republican council passed the disputed redistricting plan more than a month after the 2011 election.
Democrats took over the majority in January 2012. And late last year, they passed a competing redistricting plan on a party-line vote. Ballard vetoed it, calling it unnecessary.
Friday, June 14, 2013
Ind. Decisions - 7th Circuit decides one Indiana case today, a reversal
In JASON FINDLAY v. JONATHAN LENDERMON (ND Ind., Springmann), an 11-page opinion, Judge Flaum writes:
In September 2009, Deputy Sheriff Jonathan Lendermon found himself in the middle of a long-running family squabble between Jason Findlay and Findlay’s uncle, Clark Howey. Neighbors as well as family, the two lived next door to each other. Howey suspected Findlay of trespass and vandalism, giving rise to the bickering that ensnared Deputy Lendermon. When Findlay found a surveillance camera set up at the property line, he called the Sheriff’s Office to file an abandoned property report, and Lendermon responded to the call. With video running, Findlay ultimately made comments suggesting he had, in fact, trespassed, and Lendermon decided to confiscate as evidence the memory chip containing these statements. At some point, the memory chip separated from the camera and fell to the floor. Findlay says Lendermon tackled him as he reached to pick up the chip. Lendermon says he simply grabbed Findlay’s arm to prevent him from picking up the chip before Lendermon could seize it. A lawsuit followed, in which Findlay alleged the excessive use of force. The district court denied Lendermon’s motion for summary judgment on the excessive force claim. We reverse. Because Findlay has not carried his burden of showing the violation of a clearly established right, Lendermon is entitled to qualified immunity. * * *
[ILB: The incident takes place in Lafayette, the facts are set out in detail at pp. 2-4]
Because Findlay has not identified any sufficiently analogous case clearly establishing the constitutional right he accuses Lendermon of violating, and because Findlay offers no adequate explanation for how Lendermon used force “so plainly excessive” that it proved clearly established notwithstanding the absence of such a case, we REVERSE the district court’s denial of Lendermon’s motion for summary judgment on qualified immunity grounds.
Ind. Courts - "3 charged in sophisticated bid to change Purdue grades" [Updated]
Sophia Voravong reports today in a long story in the Lafayette Journal-Courier. Some quotes:
On paper, Roy Chaoran Sun was a remarkable student who earned straight A’s in at least 10 engineering courses at Purdue University — eventually graduating with a bachelor’s degree in electrical engineering in May 2010.[Updated on 6/15] Sophia Voravong has a follow-up story today, reporting that one of the three, Roy C. Sun, had been arrested in 2009 by Purdue authorities:
So, too, was his friend, Mitsutoshi Shirasaki, an aeronautics and astronautics major from Japan. Among 24 courses during Purdue’s spring 2010 to fall 2012 semesters, the lowest grades Shirasaki received were a handful of B’s. The rest were A’s and A pluses.
But, investigators say, their high marks weren’t due to hard work and studying. Instead, the duo hacked into their professors’ university accounts and gave their report cards a significant boost, court documents allege.
In April, the Tippecanoe County prosecutor’s office charged 24-year-old Sun, 24-year-old Shirasaki and a third acquaintance, 24-year-old Sujay Sharma, with multiple felonies and misdemeanors — among them, conspiracy to commit computer tampering, conspiracy to commit burglary and conspiracy to commit computer trespass.
The charges, filed in Tippecanoe Superior Court 2, were unsealed and made public Thursday afternoon.
“This was no outside attack. This was … students who were very smart, who decided to take their knowledge and their wisdom and used it for things they shouldn’t have used it for,” Purdue Police Chief John Cox said.
“Obviously, there will be consequences for that.”
Cox said he and Capt. Steve Dietrich, a Purdue detective who has been with the department for 30 years, believe that the alleged grade-changing scheme — and the extent of the alleged computer tampering — is a first for the university. * * *
The investigation began last November, when an engineering professor contacted the university’s information technology security services department because his password had been changed by an unknown party. Someone changed his password again in December.
Through that, Information Technology at Purdue officials learned that the professor’s account was accessed to change a student’s grade. ITaP contacted Purdue police on Jan. 3.
Shirasaki was identified as the suspect because he was logged into Purdue’s wireless network under his own account when he allegedly hacked into the professor’s account, changing his grade from C to B. Further investigation uncovered prior grade changes. * * *
According to the affidavit, Shirasaki claimed that he learned how to access professors’ accounts through Sun. It involved physically breaking into professors’ offices and switching their computer keyboards with identical ones.
The suspects allegedly installed key logging devices to the original keyboards, then broke into professors’ offices again to replace the original keyboards. The key logging devices allowed the suspects to figure out their professors’ account passwords. * * *
In mid-February, Shirasaki took investigators to an area near West Point where keystroke loggers, lockpicking devices, hard drives and other items were tossed after the suspects learned that police knew about the grade changes.
Purdue Police Chief John Cox confirmed that he’s the same person investigators arrested in November 2009 on suspicion of terroristic mischief after a closed box was left in the Visitor Information Center, prompting an evacuation of the building on Northwestern Avenue.From a 2009 story about the arrest from a Boston NBC station:
The box’s contents were a parking ticket issued to Sun, then a senior studying electrical engineering, $20 and a wheel lock that had been placed on Sun’s vehicle because it displayed a university-issued parking pass that belonged to someone else.
A group of students protested on the West Lafayette campus because they believed police overreacted.
The Tippecanoe County prosecutor’s office ultimately declined to file criminal charges, but Prosecutor Pat Harrington had told the Journal & Courier that he believed Purdue authorities responded appropriately given how some terroristic attacks have been carried out since 9/11.
Due to the fact that police thought the box could have been a weapon of mass destruction, Sun could face serious charges, such as terroristic mischief. Police say terroristic mischief is when an individual leaves something that a reasonable person may think is a weapon of mass destruction.The South Bend Tribune today relates the 2009 arrest in a story with the inaccurate headline: "Suspected grade-changer has criminal past."
Many Purdue students are saying that the charges against Sun should be dropped. When students heard Sun’s story, some started a Facebook page in an attempt to free him.
“He left money and his name and all of his information in the box. Nobody knows how in the world someone who is trying to pay a parking ticket could get charged and arrested...People are saying this is showing how this country has gone completely insane,” said a Purdue student.
Ind. Law - "Prison sentence of 12-year-old prompts new juvenile sentencing law"
Maureen Hayden, CNHI Statehouse Bureau, has this story today in several state papers, including the Mt. Vernon Register-News. Some quotes:
INDIANAPOLIS — Three years ago, when 12-year-old Paul Henry Gingerich became the youngest person in Indiana ever sent to prison as an adult, his story gained international attention and sparked questions about whether children belong behind bars with grown-up offenders. * * *
In late April, Indiana Gov. Mike Pence signed into law a provision that gives judges new sentencing options for children under 18 in the state’s criminal courts. It goes into effect July 1.
Among other things, it gives judges more discretion to keep those young offenders out of the adult prison system and to put them instead into juvenile detention facilities where they can be rehabilitated while serving their sentence.
Advocates for the new law included state prison officials who feared for Paul Gingerich’s safety when he was first sent to them in 2010 as an 80-pound, sixth-grader who’d never been in trouble.
“No good comes from putting a 12-year-old in an adult prison,” said Mike Dempsey, head of youth services for the Indiana Department of Correction.
In Indiana, children as young as 10 can tried as adults. Gingerich was 12 when he was arrested in the shooting death of 49-year-old Phillip Danner of Cromwell, along with Danner’s 15-year-old stepson. The defense argued Gingerich had been bullied into the crime by the older teen.
A psychiatrist who evaluated Gingerich said the boy wasn’t competent to stand trial as an adult. But a juvenile court judge rejected that opinion and declared both boys were fit to stand trial as adults. An appeals court has since thrown out that ruling.
For years, judges in Indiana have had few options for dealing with juveniles who’ve committed heinous crimes. They could keep them in the juvenile court system and order them locked up until they turn 18. Or they could send them into the criminal courts, where the juvenile would be tried and sentenced as an adult.
The new law creates another option called “dual sentencing,” that essentially allows a young criminal to be sentenced as both a juvenile and an adult.
It allows a judge to send a juvenile convicted as an adult into a state-run juvenile detention center for intensive supervision and treatment until the offender turns 18. Then, at 18, that offender’s adult prison sentence is re-assessed by a judge who has several options: Send the offender on to prison to serve the criminal sentence, send the offender into a community-based corrections program to transition back into society, or send the offender back home free.
Andrew Cullen, legislative liaison for the Indiana Public Defender Council, said the law gives judges a new level of discretion in juvenile matters.
“The criminal justice system should never, ever treat a child like it treats an adult,” Cullen said. “This law recognizes that.”
Until the new law was passed, Indiana was only one of four states that didn’t have some version of dual sentencing, also called blended sentencing, for juveniles convicted of serious crimes.
Republican state Rep. Wendy McNamara, an Evansville school administrator who carried the legislation in the Indiana House, said the new law still provides punishment but recognizes that juveniles need to be treated differently than adult offenders.
“We’re not letting these kids off the hook,” McNamara said. “But the law also says we’re not going to lock them up and throw away the key.”
Ind. Courts - Are pre-transfer oral arguments becoming the new norm for the Supreme Court?
Of the twenty cases set for oral argument yesterday by the Supreme Court for the upcoming for September to December period, six are cases in which transfer has not yet been granted. In several recent posts, Prof. Joel Schumm has commented on the Court's growing trend of scheduling oral arguments to decide whether to grant transfer, rather than the Court vacating the Court of Appeals opinion and then holding oral argument.
Earlier this week the ILB received at note from a reader who wrote:
The Chief Justice devoted a part of his plenary talk at last week’s Solo & Small Firm Conference on “the New Indiana Supreme Court” to the change in procedure on allowing and vacating grants of transfer from the Court’s previous practices.The ILB also received a tweet from another attendee, who wrote:
I do not have notes of the comments, but I recall him saying that the Supreme Court is intentionally moving away from granting transfer and then entering “improvident granted orders” with reinstatement of the Ct of Appeals opinion, to a system, like days of old, when the court would approve review on the Petition to Transfer, without granting the transfer and vacating the Ct of Appeals opinion, and order briefing and oral argument if appropriate. Then after briefing or hearing the counsel’s arguments, the Court would first decide in conference if transfer should be granted. If it should, it will then decide the case under its standards, on the merits.
At the ISBA SSFC, C.J. Dickson indicated pre-transfer arguments may be the new norm as it used to be when he took the bench.Fortunately the ILB was able to ask the Chief Justice directly:
I'm told you said the Court would move to a system such as you have been using somewhat more often recently, where you hold argument on whether or not to grant transfer without first vacating the COA opinion. I'd like to report (accurately) on what you presented to the Conference.Chief Justice Dickson responded:
Hi Marcia – I didn’t intend to convey the impression that the Court was intentionally adopting any change in procedure. Rather, I was reflecting on aspects in which the “new” court (BD, RDR, SD, MM, and LR) seemed to be differing slightly from the “old” court (RTS, BD, FS, TRB, and RDR).
One of these was the apparent increasing frequency in times where the Court seems to be scheduling oral argument without first granting transfer. Your blog has reported on this already.
This is not an intentional change in practice, however. It was just an example of how the “new” and “old” courts may seem to vary.
My remarks to the Solo & Small Firm Conference were not in the form of a written speech, but rather a partial speech outline that guided my often extemporaneous remarks. Following is the relevant excerpt from my personal notes which guided my remarks.
- More frequently granting OA without first granting transfer
This was the standard when I came to the court. We never granted transfer until after OA, and then only when opinion issued.
- Under the "Old Court," we adopted the default practice of granting transfer before holding OA.
- With the "New Court," we have begun more frequently to schedule OA without first granting transfer
-- perhaps out of reluctance to deny transfer unless we were fully informed
-- perhaps to avoid "improvidently granted" rulings where we realized, after OA, that transfer is not warranted
-- and also to more fairly inform counsel if we were in doubt whether to grant transfer
ILB: In other words, although some attendees may have perceived a major change, CJ Dickson was merely summarizing the minor shift of the past year. The Court will continue to grant transfer at conference in many cases. But in borderline cases, they will set for argument rather than grant transfer upfront. And even in some cases that would have been denials under the "old" Court, the "new" Court has already and will continue to set argument, to avoid denying transfer without being fully informed.
A concern. As noted at the beginning of this entry, of the twenty cases yesterday set for oral argument for September to December, six (30%) are cases in which transfer has not yet been granted. That means they do not show up on the weekly transfer list, issued a few days after the Court's weekly conference.
As I've written before, it would be a useful change from the public's point of view for the Court to announce in advance what petitions it will consider in its upcoming weekly conference (as does the Supreme Court of the United States), and then promptly post the resultant transfer list that afternoon or the following morning.
As it stands, the list posted every Monday (or Tuesday if Monday is a holiday) reflects grant/deny decisions made at least a few days earlier and omits any mention of decisions to set cases for argument. Presumably the decision to hold argument in cases like Brewington and the other cases that appeared on the Court’s oral argument calendar yesterday were made weeks earlier.
If the Court posted a pre-conference list, the public and press would receive more timely and complete information about the important decisions being considered and made by the justices. And, beyond the granted/denied rulings, the companion post-conference list could also include decisions to set a case for conference or holdover for a future conference.
Ind. Decisions - Supreme Court issues one opinion today
In Robert Bowen v. State of Indiana, a 2-page, 5-0, per curiam opinion, the Court writes:
Precedent requires that a trial court “include a reasonably detailed recitation of the trial court's reasons for imposing a particular sentence,” Anglemyer v. State, 868 N.E.2d 482, 490-91 (Ind. 2007), including the reasons for imposing consecutive sentences, see, e.g., Ortiz v. State, 766 N.E.2d 370, 377 (Ind. 2002); Smith v. State, 474 N.E.2d 71, 73 (Ind. 1985); see also Ind. Code § 35-50-1-2. We choose to remand to the trial court for clarification of its sentencing decision and preparation of a new sentencing order. See Windhorst v. State, 868 N.E.2d 504, 507 (Ind. 2007), reh’g denied.
Accordingly, we grant transfer and remand this case to the trial court with instructions to issue an amended sentencing order that complies with the law, without a hearing. See Sanchez v. State, 938 N.E.2d 720, 723 (Ind. 2010). The decision of the Court of Appeals is summarily affirmed in all other respects. See App. R. 58(A). Subject only to the rules governing rehearing, this opinion concludes this appeal of the convictions and the original sentencing order.
Ind. Decisions - Court of Appeals issues 0 today (and 5 NFP)
For publication opinions today (0):
NFP civil opinions today (1):
In Larry Robert David, II, as Special Administrator of the Estate of Lisa Marie David, Deceased v. William Kleckner, M.D. (NFP), a 14-page opinion, Judge Barnes concludes:
The trial court properly found that the Estate’s medical malpractice claim against Dr. Kleckner was barred by the statute of limitations. Further, the trial court properly found that the doctrine of fraudulent concealment does not bar Dr. Kleckner from asserting the statute of limitations defense. The trial court properly granted Dr. Kleckner’s motion for summary judgment.NFP criminal opinions today (4):
Serafin Sanchez v. State of Indiana (NFP) - This is a 2-1 opinion re whether the jury instructions constitute fundamental error.