Thursday, August 21, 2014
Ind. Decisions - "Posner opinion takes aim at denial of disability benefits; is it a 7th Circuit trend?"
Debra Cassens Weiss writes for the ABA Journal today in a post that begins:
In a published opinion issued two weeks after oral argument, the Chicago-based 7th U.S. Circuit Court of Appeals has overturned the denial of disability benefits to a woman who claimed severe pain because of a herniated disc.
The two-week turnaround by the author of the opinion (PDF), Judge Richard Posner, is quick even by his speedy standards, according to Illinois lawyer Barry Schultz, who represented the claimant. The 7th Circuit has been reversing a lot of adverse determinations in disability cases, particularly in the last year, he tells the ABA Journal.
Ind. Courts - "Allen Superior Court judge apologizes for ‘extremely tasteless’ remarks"
Rebecca S. Green of the Fort Wayne Journal Gazette reports this morning; here are some quotes:
Allen Superior Court Judge Stanley Levine finds himself in hot water with his colleagues and staff after a string of sexually charged comments at a public retirement reception Friday.
Levine, a 15-year veteran of the court’s civil division, took the microphone in the middle of a retirement and award reception for longtime court executive Jerry Noble and two members of his staff.
During Levine’s remarks in front of a packed courtroom filled with family, friends, co-workers and some children, he suggested that one of the women retiring would have a lucrative potential second career as a phone-sex operator.
Levine mentioned the woman’s husband might be OK with such a job once he saw how much money she could make.
Other than a few head shakes and dropped jaws, no one said anything or noticeably reacted to Levine’s comments, which were followed by an a capella rendition of “I’ll Be Seeing You.” * * *
But by Monday morning, Allen Superior Court Judge Wendy Davis, serving as the county’s chief judge, was fielding questions and complaints from people throughout the expansive building downtown.
And since the event, Levine has appeared contrite.
“First of all, I wanted to state that I have made a sincere and heartfelt apology to the woman about whom I made inappropriate remarks by talking to her personally, and she has accepted my apology,” he said Wednesday. “I have also apologized to the judges that I have talked with, and I apologize … anyone else who heard what I said; and also to the public.”
In an email circulated Wednesday afternoon to courthouse staff, the Allen County Board of Judges – comprising the court’s nine judges – said they, too, found Levine’s comments to be inappropriate and that a number of people present during the reception found his comments offensive.
The email reminded all courthouse staff that anyone who feels he or she has been harassed has the option to report the conduct to a supervisor, the court executive or any Allen Superior Court judge.
Levine, appointed to the bench by then-Gov. Frank O’Bannon in December 1998, is up for re-election this year and faces challengers James Posey and Dan Borgmann. * * *
“The Code of Judicial Conduct requires judges to uphold the integrity of the judiciary,” said Kathryn Dolan, state Supreme Court spokeswoman, in an email. “Certainly sexual harassment of an employee is not appropriate conduct. However, I cannot state whether a specific situation violates the code of conduct.
“Only the five members of the Supreme Court have the authority to determine what (if any) judicial misconduct has occurred in a specific situation. A litigant, member of the press or public or a judicial officer can report alleged misconduct to the Indiana Judicial Qualifications Commission.”
Wednesday, August 20, 2014
Ind. Gov't. - "GOP lawmaker at core of $1.7M complaint, raises revolving door questions"
That is the headline to Tom LoBianco's AP exclusive this evening. The story begins:
INDIANAPOLIS — A former top Indiana education official's role in the sale of $1.7 million worth of videoconferencing equipment to the state by Cisco Systems Inc., where he worked before and after holding that state position, has added to calls to strengthen Indiana's ethics laws amid a recent spate of boundary-pushing incidents.The story ends with links to a number of emails and calendar entries. But before you look at those, see this post on the IndyStar website this evening. It is the same LoBianco story, but ends with a timeline, which gives a good picture of the events at issue and links to the same emails and the like. Of particular interest is this Jan. 18, 2011 email from Huston to then-Louisiana School Superintendent Paul Pastorek to discuss both Cisco sales and Indiana education policy. You might call it the "two-hats" email.
Todd Huston left his Department of Education job as chief of staff to former Indiana Schools Superintendent Tony Bennett in 2010 for a position with Cisco, where he had previously worked. He was involved in the 2012 sale of a new TelePresence videoconferencing system to the DOE that officials later determined was a waste of taxpayer money.
Ind. Decisions - "Lake judge denies stay in right-to-work case, law is unconstitutional"
INDIANAPOLIS | Lake Circuit Judge George Paras has rejected Attorney General Greg Zoeller's request that Paras postpone his decision finding Indiana's right-to-work law unconstitutional until the Supreme Court rules in a similar case.The NWI Times story links to all three documents:
In a brief order issued Aug. 13, but only listed on the court's docket Wednesday, Paras denied Zoeller's motion for a stay pending appeal.
That outcome is not surprising since Paras, in his July 17 order, specifically declared his ruling — that the labor law is "null and void in its entirety" and the state is "permanently enjoined" from enforcing it — takes effect immediately. * * *
Bryan Corbin, spokesman for the Republican attorney general, said Zoeller *** will ask the Indiana Supreme Court to issue a stay. * * *
Paras' right-to-work ruling hinges on the "particular services clause" of the Indiana Constitution that declares, "No person's particular services shall be demanded, without just compensation." * * *
In his strongly worded decision, the judge said by denying Steelworkers the ability to collect fair-share fees from nonunion members, it is clear the right-to-work law deprives the union of compensation for services it is required by federal law to provide to all employees in a bargaining unit.
"But for the RTW (right-to-work) statute, plaintiffs would still be able to be compensated for such services," Paras said.
"Moreover, the state of Indiana has taken a central role in the denial of just compensation to plaintiffs, as any violation of the RTW statute by them would bring about their criminal prosecution by the state of Indiana or administrative proceedings against them by the Indiana Department of Labor."
Paras continued, "The RTW statute eviscerates the basic right that a person be compensated for the good and valuable services that a person provides in commercial endeavors and is the type of law that the particular-services clause was intended to bar."
Lake Superior Judge John Sedia reached an identical conclusion last year in a challenge to the right-to-work law brought by the International Union of Operating Engineers, Local 150.
The Indiana Supreme Court is set to hear oral arguments in that case Sept. 4.
The Operating Engineers last week requested the Supreme Court consolidate the two cases. Steelworkers' attorney Jim Wieser, of Schererville, said he and his co-counsels are studying whether that is the best way to move forward.
"We're willing to explore all of the logical options here as to what can be done," Wieser said.
A key difference in the two cases is that Sedia's ruling came in response to Zoeller's motion to dismiss, and no evidence or trial record was established.
Paras' decision followed a request for summary judgment by the Steelworkers after written and oral arguments were made by both the union and the state, as well as outside groups interested in the case.
While it is generally uncommon for a judge to rule in a similar case to one that is pending before the Supreme Court, Paras said he suspects the high court will focus on procedural issues, and not constitutional questions, when it reviews Sedia's order striking down the right-to-work law.
As a result, Paras said it was appropriate to issue his decision, which is based on a complete trial record, that the right-to-work law is unconstitutional.
- The earlier Sedia opinion which will be considered by the Supreme Court Sept. 4th (and which was initially discussed in this Sept. 9 post)
- The July 17th Paras opinion, discussed briefly here.
- Paras' order Aug. 13th denying Zoeller's motion for a stay pending appeal.
Ind. Decisions - 7th Circuit decides one Indiana case today
In Robin Allman v. Kevin Smith (SD Ind., Pratt), a 7-page opinion, Judge Posner writes:
The plaintiffs, former employees of a city in Indiana, sued the mayor, and the city itself, under 42 U.S.C. § 1983. They claimed that the mayor had fired them because of their political affiliations and thus in violation of their First Amendment rights. The mayor riposted that political affiliation was a permissible qualification for their jobs. The district judge granted summary judgment in favor of the mayor with respect to nine of the eleven plaintiffs, on the ground that his argument concerning political qualification for their jobs was sufficiently arguable to entitle him to qualified immunity. But the judge denied summary judgment with respect to the two other plaintiffs because she didn’t think the mayor’s claim of immunity from their suit arguable, given the differences between their jobs and those of the other nine plaintiffs.
The judge refused to certify for interlocutory appeal her denial of the mayor’s claim of qualified immunity with respect to those two plaintiffs, on the ground that the issue of his qualified immunity involves a question of fact—namely whether he should have known that his conduct was unlawful (if it was). The judge also refused to stay the district court proceedings pending his appeal. The mayor asks us to grant the stay. * * *
The mayor is entitled to a stay because he’s claiming qualified immunity. But is the city entitled to a stay? Or even to ask us for a stay? Can it be considered a party to this appeal? These are the interesting questions, and the answers depend on the applicability of the doctrine of pendent appellate jurisdiction, for it is the only possible ground for the city’s claim to be a party to this appeal. * * *
[much interesting discussion]
It will be the business of the merits panel to decide the mayor’s appeal from the denial of summary judgment regarding the two plaintiffs whom the district judge declined to dismiss. We hereby stay the district court proceedings both against the mayor and against the city.
Ind. Gov't. - Governor's office objects to ILB post; the ILB's response [Updated with ILB apology]
The ILB has just received this message from the Governor's office:
Hello Marcia,My response:
Please find attached the second memo sent from the Governor’s General Counsel in regard to agency compliance instructions. This memo was sent to members of the media who asked for it, as was the first memo.
The Indianapolis Star, in their story found here: http://www.indystar.com/story/news/2014/08/19/latest-ruling-overturning-sex-marriage-ban-makes-indiana-governor-party-suit/14318877/, link to this memo within their article.
We respectfully ask that you correct the information referenced at the end of your blog post titled “Ind. Decisions – How does today’s ruling by Judge Young impact his dismissal of Love v. Pence? (Or, Governor scolded by Judge)” as it is inaccurate.
Deputy Press Secretary
Office of Governor Mike Pence
Dear Bridget[Updated at 12:50 PM]
Thank you for the note. I'm am very pleased to learn that you read the Indiana Law Blog.
However, I must disagree with you. Members of the press who I communicated with at the time of the first memo told me they were unable to obtain a copy.
I directly asked your chief counsel for a copy of his second memo shortly after I became aware of it, but he was not able to make it available to me, although he did try.
No press stories linking to either memo had appeared when I did a post on July 28th on the Love v. Pence plaintiffs' motion for reconsideration. Their federal court filings included copies of the two memos, which I immediately downloaded from PACER and made available in that ILB post.
I believe the Star story you quote today, which was published today, is the first time the July memo has appeared in the traditional media.
Thank you again for your interest in the ILB.
Marcia J. Oddi
The ILB has now received a second note from Ms. Cleveland and it appears apologies are in order:
Hello Marcia,Dear Bridget
Thank you for your response.
If we failed to provide the second memo to you, we sincerely apologize as it was not intentional. We did provide the memo to a number of members of the media around that time, including the Indianapolis Star, which linked to the memo in this article published on July 9: http://www.indystar.com/story/news/politics/2014/07/09/state-recognize-june-marriages-sex-couples/12410207/.
At the time of the first memo, we received one request from Charlie Wilson with the Associated Press, and we provided the memo to him. As we aim to serve the media, we are troubled that some media members say they were unable to obtain the document. Are you able to provide the list of those who told you they requested the first memo from us and did not receive it so we may follow up with them?
It does appear some apologies are in order. I was unaware the AP ultimately obtained a copy of the first memo from the Governor's office, as I received several requests from the AP at the time for the document from which I had quoted.
Re the second memo, yes I was unable to obtain it from your office when I tried, but it appears I did ultimately obtain a copy from another source, as attested by this July 9th ILB post. I also link to what I referred to as a "brief" Indianapolis Star story, which I believe was greatly expanded later that day, as the version now available is time-stamped: "11:08 p.m. EDT July 9, 2014."
In sum, my last paragraph in the August 19th ILB post indeed is in error and I have removed it. I take accuracy very seriously and appreciate your bringing this matter to my attention.
Marcia J. Oddi
Ind. Law - Norman Metzger, Indiana Legal Services head, announces retirement
This brief AP story in the Fort Wayne Journal Gazette begins:
INDIANAPOLIS – One of the nation’s longest serving directors of a legal aid organization has announced he’s retiring from Indiana Legal Services next March 31.
Norman Metzger has been the executive director of the not-for-profit law firm for 44 years.
Ind. Gov't. - State's response to the Love plaintiffs' motion for reconsideration
Federal Judge Richard Young has not yet ruled on the motion for reconsideration of the order of dismissal filed by plaintiffs in Love v. Pence, which the ILB discussed in detail here on July 28th.
However, the defendant in the lawsuit, Governor Pence, though his counsel, the Indiana Attorney General's office, did on August 8th file a memorandum in opposition to the motion for reconsideration. Here are some quotes, which have added interest in light of Judge Young's ruling yesterday in Bowling v. Pence:
Defendant Michael Pence, in his official capacity as Governor of the State of Indiana, submits this memorandum in opposition to the Plaintiffs’ Motion for Reconsideration of Order Dismissing. Plaintiffs allege that the Governor “made misrepresentations” about his authority to enforce Indiana’s traditional marriage definition based on two memoranda sent by the Governor’s general counsel in the wake of this Court’s ruling in Baskin v. Bogan, No. 1:14-cv- 355-RLY-TAB, Fujii v. Commissioner, No. 1:14-cv-404-RLY-TAB, and Lee v. Abbott, 1:14-cv- 406-RLY-MJD. These memoranda, however, do not demonstrate any additional authority of the Governor to enforce Indiana Code § 31-11-1-1.
As this Court recognized in its order of dismissal, the Governor’s authority is welldefined “in the Constitution, statutes, and regulations of the State of Indiana[,]” and Plaintiffs’ asserted injuries are not fairly traceable to the Governor’s actions and cannot be redressed by the Governor. Entry on Defs.’ Mot. to Dismiss at 7 [Doc. No. 32] (hereafter, “MTD Entry”). Accordingly, Article III does not grant this Court subject matter jurisdiction over this case, and e-mails from the Governor’s general counsel do not prove otherwise. * * *
The memoranda represent precisely the sort of statements that federal courts should expect Governors to make to agencies under their purview when any state law is declared invalid: respect the court’s decision, do not thwart the rule of law, and do not take actions rendering you susceptible to charges of contempt. Providing such basic advice is not the same as enforcing the statute at issue. See MTD Entry at 6 (citing Hearne v. Bd. of Educ. of City of Chicago, 185 F.3d 770 (7th Cir. 1999) (“[T]he governor has no role to play in the enforcement of the challenged statutes, nor does the governor have the power to nullify the legislation once it has entered into force.”). Declaring that statements such as this can render a governor susceptible to federal lawsuits would likely chill similar guidance in the future.
Because the Governor’s inability to enforce Indiana Code Section 31-11-1-1 or redress Plaintiffs’ injuries remains unchanged by the memoranda, the Court should deny Plaintiffs’ motion.
Plaintiffs have never established that the Governor has any “connection” with enforcement of the traditional marriage definition, and Mr. Ahearn’s e-mails do nothing to change that. Without any actual enforcement authority on the Governor’s part, this suit is merely an attempt to circumvent the Eleventh Amendment and sue the State of Indiana without its consent.
Ind. Decisions - Court of Appeals issues 2 today (and 10 NFP)
For publication opinions today (2):
In Goodrich Quality Theaters, Inc. and Roncelli, Inc. v. Fostcorp Heating and Cooling, Inc., Wilson Iron Works, Inc., Johnson Carpet, Inc., d/b/a Johnson Commercial Interiors, a 25-page opinion, Judge Robb writes:
Goodrich Quality Theaters, Inc. (“Goodrich”) and Roncelli, Inc. (“Roncelli”) (collectively, “Roncelli”) appeal the trial court’s judgment in favor of Fostcorp Heating and Cooling, Inc. (“Fostcorp”), Wilson Iron Works, Inc. (“Wilson Iron”), and Johnson Carpet, Inc. d/b/a Johnson Commercial Interiors (“Johnson Carpet”) (collectively, “the appellees”) on various breach of contract claims, foreclosure of mechanics’ liens, and the award of attorney fees that all stem from construction of the Portage 16 IMAX movie theater (“the theater”). Roncelli raises the following issues, which we consolidate and restate as: (1) whether the trial court’s retroactive decree that its May 1, 2012 order was a final judgment renders Roncelli’s appeal untimely; (2) whether the trial court erred in interpreting Roncelli’s contract with Wilson Iron; (3) whether the trial court erred in interpreting Roncelli’s contract with Johnson Carpet; and (4) whether the trial court erred in awarding attorney fees to the appellees. Concluding the appeal was timely filed and the judgments are supported by the findings, but it was an abuse of discretion for the trial court to award attorney fees, we affirm in part and reverse in part.In Kindred Nursing Centers, d/b/a Royal Oaks Health Care and Rehabilitation Center v. The Estate of Carrie Etta McGoffney, a 9-page opinion, Judge Bradford writes:
Carrie Etta McGoffney was a resident of the Royal Oaks Health Care and Rehabilitation Center, a facility operated by Appellant-Petitioner Kindred Nursing Centers (“Royal Oaks”), from September 30, 2008, until June 30, 2009. Carrie, who is now deceased, had two daughters, Ivy and Kelly McGoffney, and a granddaughter, Kelly’s daughter Keeli Mayes. In December of 2010, at a time when Ivy was Carrie’s sole guardian and attorney-in-fact, Kelly filed a proposed complaint in superior court alleging medical malpractice against Royal Oaks on behalf of Carrie. Around that time, the Vigo Probate Court, which had established Ivy’s guardianship, issued an order providing Kelly with the authority to pursue a medical malpractice action on Carrie’s behalf. Royal Oaks challenged the Probate Court’s order and also filed a motion to dismiss the proposed complaint in superior court on the basis that Kelly did not have standing. The Probate Court declined to rescind its order, but the superior court dismissed the complaint filed by Kelly in late December of 2011.NFP civil opinions today (4):
In early January of 2012, the Probate Court removed Ivy as Carrie’s guardian and appointed Keeli in her place. The next month, Keeli filed what she styled an amended proposed medical malpractice complaint against Royal Oaks. In May of 2012, Royal Oaks filed for summary judgment on the basis that the filing by Keeli was untimely. In November of 2012, Carrie died. Kelly was appointed personal representative of Appellee-Respondent Carrie’s estate (“the Estate”), and the Estate was substituted as plaintiff in the proposed complaint against Royal Oaks. The trial court eventually denied Royal Oaks’ summary
judgment motion, and we accepted jurisdiction over Royal Oaks’ interlocutory appeal. Royal Oaks argues that because neither Indiana Trial Rule 15(C), the tolling the provisions of the Medical Malpractice Act, nor the Journey’s Account Statute (“the JAS”) apply, the trial court erred in allowing the Estate’s proposed complaint to proceed. Concluding that the JAS applies to revive Keeli’s complaint, we affirm.
NFP criminal opinions today (6):
In Brandon Brummett v. State of Indiana (NFP), a one-paragraph opinion on rehearing the panel writes:
The State seeks rehearing following our opinion, Brummett v. State, 10 N.E.3d 78 (Ind. Ct. App. 2014), arguing that this Court failed to apply an appropriately high standard for fundamental error when reversing appellant-defendant Brandon Brummett’s convictions for child molesting due to prosecutorial misconduct. The State argues that this Court should apply the fundamental error standard as recently articulated by our Supreme Court in Ryan v. State, 9 N.E.3d 663 (Ind. 2014), handed down June 3, 2014. We issue this opinion on rehearing but re-affirm our original decision in all respects, finding that the prosecutorial misconduct present in this case was much more egregious than that in Ryan and concluding that the prosecutor’s misconduct did amount to fundamental error under the standard now to be used. Although we have granted rehearing, we reverse and remand for further proceedings.The ILB last wrote about this case July 30th, in a post headed "Petition for rehearing filed by State in recent COA prosecutorial misconduct decision." The June 2nd Brummett opinion was For Publication. Oddly, this denial of a petition for rehearing has been designated Not for Publication by the panel, meaning this denial "shall not be regarded as precedent and shall not be cited to any court except by the parties to the case to establish res judicata, collateral estoppel, or law of the case." This may present a dilemma to an attorney citing the original Brummett opinion, but denied the ability to cite it subsequent history ...
Ind. Decisions - "Latest ruling overturning same-sex marriage ban makes Indiana governor a party to suit"
Here is Jill Disis' Indianapolis Star story on yesterday's ruling by federal Judge Richard Young in Bowling v. Pence.
Ind. Gov't. - More on: Do waivers make the state ethics rules meaningless, or unfair?
There may be another leak to plug when the legislature re-evaluates Indiana's ethics code.
The Journal Gazette's Niki Kelly reported this weekend on a peculiar feature of the part of Indiana's code dealing with executive-branch employees who leave public service and go to work for companies that do business with the state.
Since 2005, Indiana has mandated a cooling-off period of one year. That rule is designed to prevent the revolving door effect of a government employee giving special treatment to a potential employer in the private sector or a former public servant getting hired to use his or her inside knowledge and connections to give a new employer an edge with officials.
In writing, the rule is pretty straightforward. Under “post-employment restrictions – summary of the rule,” the inspector general's ethics page has this sentence: “Don't go to work for a company that did work for you as a state employee.”
If there's a question of whether an employee might be compromised, the Indiana inspector general is ready to resolve it.
But as Kelly reported, there's a way to get around all that.
That's right – the head of a state agency can write a former employee a waiver that excuses him or her from the wait-a-year rule, or even, apparently, from worrying about what the state calls “particular matters” – conflicts in which a former official can never represent a private employer.
The inspector general, David Thomas, generally defended the concept. Thomas told Kelly the head of an employee's department is in the best position to know how involved that person was in a potentially conflicting matter and thus whether a waiver is appropriate. And he noted that all of the more than 100 waivers that have been granted in the nine years since the law went into effect are a part of public record. Thomas also contends that the waiver provision might protect the Indiana law from being declared unconstitutionally limiting.
But some of the waiver cases recounted in Kelly's article and a story on the same subject in The Indianapolis Star Sunday certainly give one pause. * * *
No cases of wrongdoing were unearthed. But the process undercuts the sense of trust and fair play that an ethics code is supposed to promote.
The legislature should look hard at the waiver provision as part of the ethical overhaul that we hope is coming at the Statehouse early next year.
Courts - SCOTUSblog: "Rapid action on same-sex marriage urged"
Lyle Denniston of SCOTUSblog has a much-updated post on cases in Circuit Courts that are likely to be eligible for review by the SCOTUS, should it so choose. A quote:
State officials in Virginia urged the Supreme Court on Monday to put on hold a federal appeals court decision striking down the state’s ban on same-sex marriage, but they also asked the Justices to move to decide that constitutional issue “as quickly as possible.” Lawyers for two groups of same-sex couples in Virginia opposed delay, but they also asked the Court — if it does order a postponement of that lower court decision — to move ahead swiftly to rule on the core question.
Ind. Decisions - "ILB on Bowling v. Pence & Judge Young’s Scolding of the Governor"
New post: ILB on Bowling v. Pence & Judge Young's Scolding of the Governor http://t.co/0AmisfmwxS— Doug Masson (@DougMasson) August 20, 2014
Ind. Gov't. - More on: "Indiana DNR calls scientific heavy hitters to captive-deer hearing"
Updating yesterday's pre-meeting story, both Ryan Sabalow of the Indianapolis Star and Niki Kelly of the Fort Wayne Journal Gazette report on yesterday's meeting. Just a few quotes from the long Star story:
Federal agricultural officials say they will not restrict the interstate shipment of captive deer — despite disease concerns raised by scientists and six members of Congress.From the FWJG, where the story is headed "Deadly deer disease adds layer to canned-hunt debate::
That decision, outlined in a letter from U.S. Secretary of Agriculture Tom Vilsack, comes as a summer study committee made up of Indiana lawmakers met Tuesday to consider — among other things — a possible ban on deer imports.
So far, 21 states have issued such bans, fearing the spread of the always-fatal deer ailment, chronic wasting disease.
Vilsack said new rules for the nation's deer farms do enough to prevent the spread of chronic wasting disease and bovine tuberculosis, while promoting the burgeoning deer industry, which primarily breeds deer with enormous antlers to be shot on fenced hunting preserved.
In a letter to U.S. Rep. Jim Moran, D-Virginia, Vilsack said the federal agency believes it has struck the right balance in "improving the domestic and international marketability" of the nation's deer farms while also keeping "strong safeguards" in place to prevent the spread of disease.
"This is consistent with our successful approaches to addressing a number of other livestock diseases in the United States," Vilsack wrote. Moran and five other Democrats had requested a ban.
The decision leaves the matter to states like Indiana, where consensus is not easy to obtain. In Missouri the governor recently vetoed its legislature after it tried to block the state's wildlife agency which had called for ban on imports.
In Indiana, lawmakers heard four hours of testimony Tuesday, but the panel appeared no closer to making a decision on that front.
Both the study session and Moran's concerns were in response to an Indianapolis Star investigation that uncovered case after case linking the industry to the spread of chronic wasting disease.
Lawmakers heard from four wildlife disease experts called to testify by the Indiana Department of Natural Resources. They cited documented cases in which the interstate captive-deer industry was linked to the spread of diseases. They also testified that CWD is spreading rapidly among wild herds in some states and states have spent millions of dollars trying to contain the disease. * * *
But the panel also heard testimony from four in-state veterinarians who said current disease testing requirements from the Indiana Board of Animal Health are more than adequate.
"We have probably one of the most robust regulatory structures in the country as far as keeping CWD out," said Darryl Ragland, a Purdue University veterinarian who works for deer farmers. "We have a program in place that is working."
Lawmakers received an education Tuesday on chronic wasting disease, a deadly infection that is the new epicenter of a debate about deer farms and captive hunts in Indiana.
The Agriculture and Natural Resources Study Committee heard nearly five hours of testimony from both sides. The panel could give recommendations for action to the legislature this year.
It’s the latest chapter in the complicated history of high-fenced hunting in Indiana.
Opponents are focusing on preventing or delaying the potential spread of chronic wasting disease by banning importing deer into the state and continuing a prohibition on captive hunts.
“The disease is moving across the landscape,” said Dr. Bryan Richards, of the U.S. Geological Survey’s National Wildlife Health Center. “Will it get here over time? It’s certainly a possibility. Do you want it sooner or later? You can have an impact on the time of arrival.”
But supporters have pushed the General Assembly for years to legalize high-fenced hunting and say Indiana regulators are on top of the chronic wasting disease threat.
High-fenced hunting preserves place deer with big racks in large confined spaces, and hunters can shoot them for high prices. * * *
Chronic wasting disease is a progressive, neurological disorder that always kills the deer it is found in. It is transmitted freely from animal to animal. Soil can also be contaminated by the deer.
Richards pointed out that Indiana bans importing from states – about 20 – with chronic wasting disease, but said just because deer farms import from a currently CWD-free state doesn’t mean the animals don’t have the disease.
That’s because there’s no live test, and the deer can have it for two years before showing symptoms.
Other experts testified that the movement of deer in and out of the state – and between deer farms and hunting facilities within Indiana – increases the risk for the disease.
It can also be spread from a captive herd to the wild through nose-to-nose transmission on a fence line or escapes.
States have spent millions trying to eradicate the disease and hunting has dropped sharply.
Supporters of deer farming say an infected deer can easily walk into the state now.
Tuesday, August 19, 2014
Ind. Decisions - How does today's ruling by Judge Young impact his dismissal of Love v. Pence? (Or, Governor scolded by Judge) [Corrected]
How does today's ruling by Judge Young impact his dismissal of Love v. Pence?
On July 28th the ILB wrote at length about the plaintiffs in Love v. Pence' motion for reconsideration of the order of dismissal with the federal district court. In his June 25th ruling in Baskin, J. Young wrote:
Governor Pence is sued in the Fujii and Lee cases. As the court found in Love v. Pence, another case challenging the constitutionality of Section 31-11-1-1, the Governor is not a proper party because the Plaintiffs’ injuries are not fairly traceable to him and cannot be redressed by him. (Love v. Pence, No. 4:14-cv-15-RLY-TAB, Filing No. 32 (S.D. Ind. June 24, 2014). Therefore, the court GRANTS the Governor’s motions for summary judgment (Fujii Filing No. 44) (Lee Filing No. 41).In Love, Governor Pence was the only defendant, so the lawsuit was dismissed.
As the July 28th ILB post details, in their motion for reconsideration the plaintiffs quote at length from two memos from Governor Pence, the first ordering the state agencies to comply with the Baskin ruling, and then, when it was stayed, a second memo ordering the agencies “to execute their functions as though the U.S. District Court Order of June 25, 2014 had not been issued.” The Love plaintiffs' argument that the Governor therefore does have authority to enforce the marriage law is quite convincing.
It appears that Judge Young thinks so too, although he has not yet (as far as I am aware) issued a ruling in the Love plaintiffs' motion to reconsider. Here is some of what he wrote today in Bowling re Governor Pence as a proper party defendant, sometimes echoing the Love motion for reconsideration [ILB emphasis]:
The Governor has repeatedly represented to this court that he does not have “any authority to enforce, or other role respecting, Indiana Code Section 31-11-11-1.” (Defendants’ Memorandum in Support of Their Motion for Summary Judgment, Filing No. 26, at ECF p. 17). Based on this representation and an absence of statutory authority allowing the governor to issue executive decrees telling other elected officials how to do their jobs, the court previously granted summary judgment in favor of the Governor. See Baskin, 2014 WL 2884868 at * 4; see also Love v. Pence, No. 4:14-cv-15-RLY-TAB, 2014 WL 2884569. The court found that the general authority to enforce the laws was insufficient to show the governor was a proper party defendant. See Love, 2014 WL 2884569. Additionally, the court concluded that because the governor could not enforce Indiana’s marriage laws, he could not redress the Plaintiffs’ injuries. See id. Since that time, the Governor issued memoranda, through his attorney, and did what he claimed he could not do by directing executive agencies on how to proceed in enforcing the law. (See Memorandum from General Counsel to Governor Mike Pence, July 7, 2014 (hereinafter “July 7 Memorandum”), Plaintiffs’ Exhibit 10). In light of this bold misrepresentation, the court must now revisit the issue.ILB: The final paragraph, re the availability of the two memos at issue, has been deleted, as of 1:17 PM, 8/20/14.
In the July 7 Memorandum sent to “all executive branch agencies,” the general counsel to the Governor expresses that he sent a memorandum on June 25, 2014 (“June 25 Memorandum”), the day of the court’s order, directing all executive branch agencies to comply with the decision. (July 7 Memorandum). The memorandum also notes that after the Seventh Circuit issued a stay of the court’s order, “the Governor’s general counsel instructed all executive branch agencies to stop any processes they had commenced in complying with the District Court order of June 25.” (Id. at ¶ 3). On July 7, 2014, the Governor sent a memo stating that “Indiana Code § 31-11-1-1 is in full force and effect and executive branch agencies are to execute their functions as though the U.S. District Court Order of June 25, 2014 had not been issued.” (Id.).
The memoranda issued by the Governor clearly contradict his prior representations to the court. The Governor can provide the parties with the requested relief as was evident by his initial memorandum on June 25, 2014, and he can enforce the statute to prevent recognition as evident by his correspondence on June 27 and July 7. Thus, the court finds that this case is distinguishable from the cases cited by Defendants because it is not based on the governor’s general duty to enforce the laws. It is based on his specific ability to command the executive branch regarding the law. Therefore, the court finds that the Governor can and does enforce Section 31-11-1-1(b) and can redress the harm caused to Plaintiffs in not having their marriage recognized. * * *
* * * [T]he court, after witnessing the Governor do what he claimed he could not do, reverses course and finds him to be a proper party to such lawsuits. The court wishes to reiterate that it finds the Governor’s prior representations contradicting such authority to be, at a minimum, troubling.
Ind. Decisions - Federal Judge Young rules in remaining same sex marriage case before him
See this July 20th ILB entry for background on Bowling v. Pence. Of the five same-sex marriage cases filed in Indiana federal court in March, only Bowling had not been decided by Judge Richard Young. Until now. This one dealt with recognition of same-sex marriages performed in other jurisdictions.
Today Judge Young ordered, in a 12-page opinion, consistent with his earlier rulings:
1. The Governor, his officers, agents, servants, employees and attorneys, and all those acting in concert with him, are PERMANENTLY ENJOINED to recognize same-sex marriages that, but for their sex, satisfy all the requirements to marry under Indiana law. This includes directing all executive agencies to take actions to comply with this court’s order to afford same-sex marriages the same rights, responsibilities, and benefits as opposite-sex marriages.However, the ruling concludes:
2. The Attorney General, Greg Zoeller, his officers, agents, servants, employees and attorneys, and all those acting in concert with them, are PERMANENTLY ENJOINED from prosecuting or assisting in the prosecution, using his authority from Indiana Code § 4-6-1-6, of Indiana Code § 35-44.1-2-1 (perjury) as applied to same-sex couples who use and sign under the penalty of perjury government forms that require the individuals to fill out information based on gender, such as marriage license applications.
3. The Commissioner of the Indiana State Department of Revenue, his officers, agents, servants, employees and attorneys, and all those acting in concert with them, are PERMANENTLY ENJOINED to exercise their authority under Indiana Code § 6-8.1-3 to revise the filing guidelines to allow and process joint tax returns for same-sex married couples as they do for opposite-sex married couples.
4. The Executive Director of the Indiana Department of State Personnel, her officers, agents, servants, employees and attorneys, and all those acting in concert with them, are PERMANENTLY ENJOINED to offer employee benefits and all other human resource services to same-sex married couples as they do for opposite-sex married couples.
This Order is stayed until the Seventh Circuit rules on the merits of this case or one of the related cases of Baskin v. Bogan, Lee v. Pence, and Fujii v. Pence. Should the Seventh Circuit stay its decision in the related cases, this order shall remain stayed.
SO ORDERED this 19th day of August 2014.
Ind. Gov't. - Controversy about Indiana public employee salary databases [Updated with comments]
Earlier this month, perhaps on Aug. 7th, I read an online Indianapolis Star story about the 20 highest paid public employees in Indiana. There wasn't much there, other than the names and salaries, so I expected it to become part of an expanded Sunday story on the topic. What struck me as I read the list was that, other than the usual university football and basketball coaches, the rest of the top-twenty highest-paid public employees list consisted of folk from Citizens Energy and two county hospitals, in Daviess and Dearborn counties! I looked forward to the Star story explaining this.
But there was no story that weekend of August 10th. There was a little-noticed story on August 14th, by Haoyun Su and Michael Auslen, headed "20 highest-paid public employees in Indiana." Some quotes:
When it comes to Indiana's highest-paid public employees overall, we see a slight overlap from our list of the highest-paid coaches — five of them made this list, too.See the end of the Star story for the complete list of 20 and their salaries.
However, broadening the 2013 list to include all public, state, county and municipal workers adds several well-paid Citizens Energy Group executives and county hospital doctors, knocking some Indiana coaches out of the overall top 20.
Once again, men dominate the list, with only a couple women represented, including Margaret Richcreek, Senior Vice President and Chief at Citizens Energy Group and Sharon Versyp, head coach of women's basketball at Purdue University.
Citizens Energy executives are considered public employees because they work for a nonprofit public trust. * * *
Six doctors made the top 20, all working for either Dearborn County Hospital or Daviess Community Hospital. However, just 41 percent of the state's county hospitals filed forms detailing employee compensation with the state, as is required by law.
The State Board of Accounts hasn't taken any action against these hospitals, said Paul Lottes, general counsel for the board. But, he said, finding a way to ensure all public entities in Indiana follow the law is a priority.
Some doctors have become public employees in recent years as an increasing number of community hospitals have bought local physicians' practices.
But it doesn't end there. The next day the Washington Times Herald had a story (here via Indiana Economic Digest) by Nate Smith headed "Daviess, Dearborn County hospitals question state requirement on reporting salary." Some quotes from the long story:
The fallout from media reports about salaries at county hospitals throughout the state has raised questions about requiring their disclosure.And it doesn't end there. State employee salaries are available at the Indiana Transparency Portal. But what we are talking about is public employee salaries - a broader list including local government, universities, etc.
Daviess Community Hospital and Dearborn County Hospital physicians were named in an Indianapolis Star article naming them to a list of the 20 highest-paid public employees in Indiana. Daviess Community surgeon Marcus Thorne and former surgeon John Clayton were Nos. 10 and 19 on the list. The Times Herald published the state list of all hospital employees following The Star's report.
While the two hospitals were featured on The Star list, many of Indiana's hospitals did not file or did not have to file at all. According to state data, out of the 29 required to file salary data with the state, only 11, or 38 percent, did.
Daviess CEO David Bixler, along with others involved with county hospitals, said the state should either enforce the law or change it for county hospitals.
"If there are rules that we have to follow, it should be for all of us or none of us," Bixler said.
According to Indiana Code 5-11-13-1, the State Board of Accounts requires county hospitals to file annual personnel reports, known as 100R. This is the same report that counties, cities, townships, schools, libraries and other units of government are required to file by law and are publically available. If not, hospitals are subject to a penalty. In a letter dated Feb. 10 provided by Bixler, the state agency said they had to fill out the 100R or risk penalties. Bixler said it was then that he and the hospital's Chief Financial Officer complied.
"We're going to keep the hospital in compliance with state laws, state regulations or things that we receive of an official nature," Bixler said.
But according to Paul Lottes, general counsel for the State Board of Accounts, there has not been a penalty issued to a hospital for not complying. He also said State Examiner Paul Joyce does not intend to take any action against other county hospitals for not following the law.
"There should be penalties that are put in place, or we retrieve our data," Bixler said. "Everybody should be all in or everybody should be all out."
Dearborn County Hospital, which had four physicians on the list, also complied and submitted its salaries. The hospital also falls under the state law, requiring disclosure. A spokesperson declined comment for this story, other than to say the hospital does not receive county funds. Daviess Community Hospital also does not receive funding from the county, but county government does back up the hospital's bonds.
Many hospitals did not choose to file with the state. One of those hospitals was Good Samaritan Hospital in Vincennes. A spokesperson with the hospital said they did not file the 100R form based on the advice of the Indiana Hospital Association. The association, as does Good Samaritan, believes county hospitals should be exempt from filing the 100R form.
Bixler said the policy leaves county hospitals at a disadvantage in terms of recruiting and keeping quality personnel. The salary criteria listed for physicians like Thorne and Clayton, Bixler said, comes from data supplied by the Medical Group Management Association, a group that supplies salary data to hospitals and member health organizations. He went on to say those salaries are competitive with other hospitals but if competitors get hold of that data, they could try to take advantage.
"We have a lot of positions that in health care are in high demand and it's very competitive," Bixler said. "They may be able to see this and say 'Hey, we could steal that person for whatever that be.'"
The Indiana Hospital Association, which serves 164 hospitals in the state, is working with the state Attorney General's office to change salary disclosures for county hospitals. Lottes would not disclose what those changes might be, and Bryan Corbin, a spokesman for the Attorney General's office, also would not comment or confirm the changes. Douglas Leonard, president of the IHA, said in statement they are awaiting to hear what the decision is from the state.
"IHA believes publishing this data violates the privacy of hundreds of hard-working employees and puts county hospitals at a competitive disadvantage compared to privately owned hospitals," Leonard said. "We look forward to continuing this discussion with the Attorney General until a final ruling is issued."
But if the practice is not changed, Bixler said he would seek legal counsel before complying in 2015.
"I think a lot will be learned in the coming weeks and months," Bixler said.
Joyce said in an email the Attorney General's office did affirm county hospitals did have to keep filing the 100R forms, but said he could use some descretion as to what actually gets posted on the state's website as a public document.
"I did just receive this advisory opinion last week and I am in the process of considering any changes that may be made," Joyce said. "However at this time no decision has been made. I would rather not speculate as to changes as that doesn't help anyone."
The Indianapolis Star database is based on the "Certified Report of Names, Addresses, Duties and Compensation of Public Employees (Form 100R) [which] provides taxpayers with compensation information for public employees of state government, state universities, state boards and commissions, and all local units of government." It is a product of the "Certified Report of Names, Addresses, Duties and Compensation of Public Employees (Form 100R) [,which] provides taxpayers with compensation information for public employees of state government, state universities, state boards and commissions, and all local units of government."
But the results of a Star database search today for the 20 highest-paid Indiana public employees show only university and Citizens Energy officials. Interestingly, the county hospital names no longer show up ...
Something else interesting: If you filter the Star database for "local government," and start with highest paid, it is not until the 6th screen of 10 names each that you find anyone other than Citizens Energy: #56 highest paid is Riggs, David T., Marion County Director of Public Safety. If you continue clicking, Citizens Energy names predominate screen after screen, until the 17th screen, where the annual salaries have fallen into the $105,000 range.
[Updated at 3:10 to add some comments]
Doug Masson tweeted:
Doug Masson @DougMasson 2hAnd a reader sent this note:
Via @indianalawblog http://indianalawblog.com/archives/2014/08/ind_govt_3.html … // Also, maybe I should try landing a gig with Citizen's Energy.
Let me see if I understand this: The Attorney General is now censoring the information going into the Public Employee Salary Database because competitors might see the salaries? First of all, that's just ridiculous. Hospitals know what other hospitals are paying. Secondly, doesn't that defeat the purpose of the database...letting the public know where they are spending their money? So if John Q. Taxpayer wants to know what a public hospital employee is making, he's just out of luck? Does Mr. Zoeller work for the citizens of the State of Indiana, or the Indiana Hospital Association?
Ind. Courts - More on: AP story on CJ swearing in today contains error
Updating this post from yesterday, the AP story in the Fort Wayne Journal Gazette has been updated from "Rush to be sworn in" to "Loretta Rush sworn in," but the same error pointed out by the ILB yesterday ("Indiana justices are appointed to five-year terms before facing a retention vote") continues.
Ind. Decisions - Court of Appeals issues 2 today (and 3 NFP)
For publication opinions today (2):
In In the Matter of the Adoption of M.H., W.M. & S.K. v. N.B. & R.B. , a 24-page opinion, Judge Brown writes:
W.M. and S.K. (collectively, the “Appellants”) appeal the trial court’s order denying their petition for adoption of M.H. and granting the petition for adoption filed by R.B. and N.B. The Appellants raise two issues which we revise and restate as:In Lisa B. Gonzalez v. R. Stanton Evans , a 21-page opinion, Judge Barnes writes:
I. Whether the trial court erred by denying the Appellants’ Motion to Recuse after receiving an ex parte communication from the judge’s fraternity brother urging the judge to rule in a particular manner on the day of the adoption trial; and
II. Whether the trial court erred in finding that it was in the best interest of M.H. to be adopted by the Appellees.
Lisa Gonzalez appeals the trial court’s order requiring her to pay $8289.33 in attorney fees to R. Stanton Evans and its failure to require Evans to pay any attorney fees to her. We affirm in part and reverse and remand in part.NFP civil opinions today (1):
The issues before us are:
I. whether the trial court properly ordered Gonzalez to pay $8289.33 in attorney fees to Evans in connection with his response to Gonzalez’s subpoena; and
II. whether the trial court erred in not holding a hearing on Gonzalez’s request to be awarded attorney fees in connection with her motion to compel discovery from Evans. * * *
We interpret Trial Rule 34(C)(3) as permitting non-parties to recover attorney fees associated with complying with a subpoena or other discovery request, but that refusing to comply with a discovery request solely on the basis that the parties cannot agree on an appropriate amount to pay does not constitute reasonable resistance to a discovery request. Evans did not reasonably resist Gonzalez’s subpoena, but he is entitled to some attorney fees associated with complying with the subpoena. Therefore, we reverse the award of $8229.33 in attorney fees to Evans and remand for determination of the amount of attorney fees he incurred in strict relation to complying with the subpoena. We affirm the trial court’s failure to award any attorney fees to Gonzalez upon her motion to compel, given her failure to present any evidence or make any argument to the trial court regarding any such fees despite having an opportunity to do so.
NFP criminal opinions today (2):
Law - "As Arrest Records Rise, Americans Find Consequences Can Last a Lifetime"
The subhead to the long, excellent (but paywalled) WSJ article today, reported by Gary Fields and John R. Emshwiller, is "Even if Charges Were Dropped, a Lingering Arrest Record Can Ruin Chances of a Job."
These are arrest records, not conviction records. The story reports the U.S. Census Bureau, for one, uses them for screening job applicants. More:
Exacerbating the situation are for-profit websites and other background-check businesses that assemble publicly available arrest records, often including mug shots and charges. Many sites charge fees to remove a record, even an outdated or erroneous one. In the past year Google Inc. has changed its search algorithm to de-emphasize many so called "mug-shot" websites, giving them less prominence when someone's name is searched.
On Friday, California Gov. Jerry Brown signed into law a bill making it illegal for websites to charge state residents to have their mug shot arrest photos removed.
In 2013, Indiana legislators approved one of the most extensive criminal record expungement laws in the country. The law was sponsored by a former prosecutor and had a range of conservative Republican backers. One had worked as a mining-company supervisor who frequently had to reject individuals after routine background checks found evidence of an old arrest.
Ind. Gov't. - "Indiana DNR calls scientific heavy hitters to captive-deer hearing"
That is the headline to a long story this morning by Ryan Sabalow of the Indianapolis Star. It begins:
For years, the state agency with the most at stake in the ongoing legislative debate over what to do about the disease-prone captive-deer industry has been largely silent.Don't miss reading the entire story.
Instead, the loudest voices lawmakers heard were from hunting-preserve owners and deer farmers who have lobbied hard against any effort to strongly regulate the industry because they say it will hurt rural Hoosier economies.
That's going to change on Tuesday.
Officials at Indiana's Department of Natural Resources have asked four out-of-state wildlife disease experts to testify before the 14-member Agriculture and Natural Resources Interim Study Committee.
One of the experts is among the foremost federal authorities on chronic wasting disease, an infectious brain disease that's always fatal to deer and that's been found in 22 states. The disease — and the extent to which the captive deer industry is responsible for its spread — is a significant point of contention in the debate over how strongly the industry should be regulated.
The DNR's move is significant because in recent years its officials have not testified before lawmakers as they have debated legislation favorable to Indiana's hunting preserve and deer-farming industry.
The ILB has had many earlier entries on captive-deer hunting.
Ind. Decisions - 7th Circuit decided two Indiana cases yesterday, re sentencing
In U.S. v. KENNETH JONES, RAMONE MOCKABEE,DEVON YOUNG and ELISHA DRAKE (SD Ind., Barker), a 64-page opinion, Judge Tinder writes:
Beginning in August of 2009, the Indianapolis Metropolitan Police Department (IMPD) and the FBI conducted a coordinated investigation of a suspected cocaine-distribution organization operating in the Indianap-olis area. The two law enforcement agencies employed a variety of investigative techniques, including interviews of confidential informants and suspects, surveillance, staged or controlled drug purchases, and consensual (on one side) re-cording of telephone conversations. In addition, the investigation utilized court-authorized pen registers of telephone traffic, wiretaps of telephone conversations, and interdiction stops of selected individuals, which were often initiated on the basis of information gleaned from those wiretaps.
This coordinated law enforcement operation continued until January 20, 2010, when a series of searches and arrests were effectuated. A federal grand jury in the Southern District of Indiana then issued an indictment (and subsequently, a superseding indictment) that leveled charges related to the distribution of drugs against twenty defendants, including the appellants in this case, Ramone Mockabee, Kenneth Jones, Elisha Drake, and Devon Young. Jones, Drake, and Young contested the charges against them at a jury trial, but were all convicted. Mockabee pleaded guilty.
We will discuss the particulars of the counts of conviction and the penalties imposed later. For now, we note that all appellants individually raise a variety of pretrial, trial, and sentencing issues, and we have consolidated their appeals. Ultimately, we affirm the convictions that Jones, Drake, and Young now appeal, but we vacate the sentences of Mocka-bee, Jones, and Drake, and remand their cases for resentenc-ing. Before we tackle the multitude of separate issues raised by each appellant, however, we will first discuss the evi-dence and procedures common to all of them, and then dis-cuss specific facts relating to each one in turn. * * *
For the foregoing reasons, Jones’s convictions on Count Eleven and Count Twelve are AFFIRMED, and his sentence is VACATED and REMANDED for resentencing consistent with Dorsey; Drake’s conviction is AFFIRMED and her sentence is VACATED and REMANDED for resentencing consistent with Alleyne; Young’s conviction is AFFIRMED; and Mockabee’s sentence is VACATED and REMANDED for resentencing consistent with Peugh.
In U.S. v. JUAN CARLOS ADAME-HERNANDEZ (SD Ind., Barker), a 26-page opinion, Judge Tinder writes:
This appeal arises from the same underlying criminal case that we address in another opinion issued today, United States v. Kenneth Jones, Ramone Mockabee, Devon Young, and Elisha Drake, Nos. 11-2267, 11-2288, 11-2535 & 11-2687. Defendant-Appellant Juan Carlos Adame-Hernandez (Adame) sold cocaine to Dominic Robinson and was thereby an upstream source for the cocaine distributed by the Mockabee organization discussed at length in that opinion. Adame’s appeal had been consolidated with the others but because his appeal arises from substantially dif-ferent circumstances that are unique to him, we have with-drawn the consolidation of his appeal to address it separate-ly in this opinion. Adame’s appeal focuses exclusively on a plea bargain gone awry, and we will therefore recite only the facts relevant to his plea.
CONCLUSION. For the foregoing reasons, we VACATE Adame’s convic-tions and REMAND with instructions to allow Adame to maintain his guilty plea and be sentenced under the terms of the parties’ written plea agreement executed on January 3, 2011. Circuit Rule 36 shall apply on remand.
Monday, August 18, 2014
Ind. Courts - "Loretta Rush becomes chief justice"
Tim Evans reports for the Indianapolis Star:
Gov. Mike Pence administered the oath of office to Rush, a former Tippecanoe County judge, during the brief public ceremony at 1 p.m. in the historic Supreme Court Law Library. But prior to that ceremony, she was formally — and officially — sworn in by Dickson.
The short public ceremony was attended by the other four Supreme Court justices, as well as former justices Randall Shepard, Theodore Boehm, Frank Sullivan and Myra Selby, who was the first female and African American to sit on the state's highest court. Rush is only the second female justice. * * *
Pence praised Dickson for his leadership and "decades of of exemplary service to the people and the laws of the state of Indiana." The governor said that, while Dickson's tenure was short, it was substantive, and the former chief justice provided the state independent, impartial, thoughtful and dedicated leadership.
Dickson, Pence said, led the court with "grace, dignity and sound judgment ... (that) contributed measurably to the reputation of the Supreme Court of the state of Indiana and the people of Indiana will always be in your debt."
Pence then turned his focus to Rush.
"This is not just a new and historic chapter in the story of Indiana's highest court, but more importantly it represents a strong continuation of what has been a long standing tradition of excellence for this court," he said.
"Much has been said and written about the historic nature of what will take place here today, and we do well to acknowledge that."
But, the governor added, "Loretta Rush has been selected among an extraordinarily talented group of candidates because, quite simply, she was the best choice to lead the best state supreme court in America as its chief justice."
Ind. Courts - More on: Loretta Rush sworn in today as Chief Justice of Indiana [Updated]
Here, from the Court, are 8 photos of the swearing-in today.
The first photo shows the current 5-member Indiana Supreme Court, plus on the left former Justice Boehm and Justice Selby, and on the right former Chief Justice Shepard and former Justice Sullivan.
A video is also linked, but it is not from today, it is from when Rush joined the Court on Dec. 28, 2012.
[Update at 5:14] That has now been corrected. The same link is now to a video of today's events. Chief Justice Rush's remarks begin at about 17:00 into the 24:00 minute video.
Ind. Courts - Loretta Rush sworn in today as Chief Justice of Indiana
CJ Rush sworn-in today in law library. pic.twitter.com/6tqREtNvJH— Indiana Courts (@incourts) August 18, 2014
Ind. Gov't. - Do waivers make the state ethics rules meaningless, or unfair?
Two big stories this weekend on the state's ethics rules.
Ryan Sabalow of the Indianapolis Star has a long, front-page, Sunday Star story headed: "Officials defend exceptions to Indiana ethics rules that were meant to prevent conflicts of interest." Some quotes:
Eight months had passed since Paul Dubenetzky retired from his state job as head of Indiana’s air-quality permit program to work for a consulting firm representing some of the region’s largest polluters.The story continues with a number of examples of waivers granted.
And he knew he had a problem.
The state’s ethics laws require that former state employees take at least a year off before working as a lobbyist or going to work for companies they once regulated. His former peers at IDEM knew the rules and they were unnerved by his new job.
Dubenetzky acknowledged as much in a letter he wrote in May 2007 to his former boss, IDEM Commissioner Thomas Easterly — a letter written on his new firm’s stationery: “Several current IDEM employees have expressed discomfort when discussing issues with me because they feel that they may be participating in activities that do not comply with the legal requirements regarding ethics and conflicts of interest.”
But Dubenetzky’s concern quickly went away, thanks to an exception in Indiana that allows public employees to circumvent the state’s cooling-off period. That exception: Ask your former boss, in this case Easterly, to grant you a waiver.
In Indiana, the waiver is binding and does not require the approval of the state’s ethics commission. It also didn’t matter that it was issued months after the fact.
Easterly placed a condition in the waiver — that Dubentizky was not to speak to IDEM staffers for a few months — but he was otherwise good to go.
Easterly defended the waiver in a statement to The Star:
“Paul is a very competent professional with extensive experience in environmental issues,” Easterly said in his statement. “And it is to Indiana’s benefit to have individuals like him out there helping regulated operations meet their responsibilities.”
Dubenetzky did not comment other than to say he didn’t think his case was on point with concerns some might have about a revolving door between state employees and industry.
The waiver — again, even the retroactive nature of it — was completely within the rules. But ethics and good government experts contacted by The Star were concerned with what they viewed as a loophole in a law intended to keep state employees from using insider knowledge to work against taxpayer interests. The rules also intend to prevent companies and special interest groups from dangling jobs before public officials in order to win lucrative government contracts, push through pet projects and ease regulations.
And while Dubenetzky’s retroactive waiver was unique, waivers, in general, are not.
An Indianapolis Star investigation reveals that waivers have been issued 102 times since 2005. By comparison, state employees, concerned about potential conflicts with job prospects, have only sought formal, binding advisory opinions from the ethics commission 73 times during those years. * * *
The state’s top ethics policeman, Inspector General David Thomas, who has announced he would be leaving office by December, largely defended the ethics laws, including the waiver exception.
Before 2005, the only restriction for state employees seeking a new job was a one-year ban on working on “particular matters” in which employees had gained insider knowledge. Thomas said the lifetime ban came in 2005. So did the one-year cooling-off period for lobbying and for employees who made more general regulatory decisions related to an organization or company.
"State’s revolving door turning ‘judiciously’" is the headline to Niki Kelly's story in the Sunday Fort Wayne Journal Gazette. Some quotes:
INDIANAPOLIS – Indiana ethics law seeks to stop the revolving door between state workers and companies that benefit from state contracts – unless you get a waiver.The long story continues with a number of examples, and concludes:
Post-employment waivers can be granted by the head of an agency – or the governor himself – in order to avoid a one-year cooling-off period.
Twenty such waivers were granted in 2013 and eight so far this year.
“Post-employment waivers are being used judiciously – with about 100 given over the nearly 10 years since they were included in the state’s ethics law. That pace continues to be about the same in the Pence administration,” said Christy Denault, spokeswoman for Gov. Mike Pence. “Post-employment waivers allow agency heads to waive a one-year restriction for employees when it is in the public interest to do so.”
During that time, tens of thousands of state workers have left state employment.
Waivers must be filed with the Indiana Ethics Commission, though that board can’t block them.
Inspector General David Thomas – the state’s watchdog on ethics, waste and fraud – said he thinks the current law is good for two reasons.
“First, the agency is in the better position to know the detailed extent of their employee’s involvement and whether the ‘public interest’ is served with the waiver. Second, I think the law is sufficient in that the waiver must be in writing and remain a public document,” he said.
Thomas said having waivers helps defend against a future attack like in Ohio, when the entire post-employment rule was struck down as unconstitutionally strict.
Denault said there is no obligation in the law, but the governor’s office requires all waivers to come there for approval before being issued. Some agencies have not complied with the rule, according to a July 29 memo from the governor’s office to agency heads.
That same memo reminded agencies: “Appearance and public trust matter. If you, as an appointing authority, think reasonable people would view the new employment for a former employee as somehow having influenced the employee in job duties – Do not execute a waiver.”
[Christy] Denault, the governor’s spokeswoman, said another waiver allowed an employee of the Department of Natural Resources to work with the Nature Conservancy.
“These are the kinds of employment opportunities that the law envisioned in allowing for waivers: positions that employees of the state are well-qualified for and that are in the public interest,” she said.
Ind. Decisions - Court of Appeals issues 2 today (and 8 NFP)
For publication opinions today (2):
In Linda D. McIntire, and those similarly situated v. Franklin Township Community School Corporation, an 11-page opinion, Judge Mathias writes:
Linda McIntire (“McIntire”) appeals the Marion Superior Court’s grant of summary judgment in favor of Franklin Township Community School Corporation (“the School Corporation”). On appeal, McIntire argues that the trial court erred in concluding: (1) that her claim was barred by her failure to provide the required notice under the Indiana Tort Claims Act (“ITCA”), and (2) that Article 8, Section 1 of the Indiana Constitution does not provide for a private cause of action for monetary damages. We conclude that the trial court erred in concluding that McIntire’s claim was subject to the notice requirements of the ITCA but nevertheless affirm the trial court’s grant of summary judgment because McIntire may not maintain a claim for monetary damages under Article 8, Section 1 of the Indiana Constitution. * * *In In re: The 2011 Marion County Tax Sale, Floor-Essence, LLC v. Marion County Auditor and Marion County Treasurer, a 15-page opinion, Judge Brown writes:
Unfortunately for McIntire, this court explicitly held in Hoagland that there can be no claim for monetary damages arising out of the Indiana Constitution. In fact, the holding in Hoagland could be no clearer: “There is no express or implied right of action for monetary damages under the Indiana Constitution.” [ILB: but see ftnote 5 on p. 9 for more]
Floor-Essence, LLC, (“Floor-Essence”) appeals the trial court’s judgment in favor of the Marion County Auditor (the “Auditor”) and Marion County Treasurer (together, the “County”). Floor-Essence raises one issue, which we revise and restate as whether the court erred in entering an order on October 15, 2012, overruling Floor-Essence’s objections and ordering that tax sale deeds be issued from a tax sale. We affirm. * * *NFP civil opinions today (3):
Based on the evidence set forth above and in the record, we find the Auditor substantially complied with the statutes governing the notices and that the manner of service was reasonably calculated under all the circumstances to apprise Floor-Essence of the pendency of the action and afford it an opportunity to object.
William Hess v. C.A.D., C.N.D., John Doe, Jane Doe (NFP) - "We decline to extend the doctrine of presumed judicial temperance to civil cases, and the applicability of that analysis is in any event obviated by our review in this case."
NFP criminal opinions today (5):
Ind. Decisions - Transfer list for week ending August 15, 2014
There were no transfer dispositions last week, and hence, there is no transfer list.
Ind. Courts - AP story on CJ swearing in today contains error
First, I dislike the headline to the unattributed AP story, which reads "Rush to be sworn in as 1st female chief justice," and would much prefer "Rush to be sworn in as Chief Justice of Indiana."
But the error is in the final paragraph to the brief story:
Indiana justices are appointed to five-year terms before facing a retention vote.Here is the first paragraph of Art. 7, Sec. 11 of the Indiana Constitution:
Section 11. Tenure of Justices of Supreme Court and Judges of the Court of Appeals. A justice of the Supreme Court or Judge of the Court of Appeals shall serve until the next general election following the expiration of two years from the date of appointment, and subject to approval or rejection by the electorate, shall continue to serve for terms of ten years, so long as he retains his office. In the case of a justice of the Supreme Court, the electorate of the entire state shall vote on the question of approval or rejection. In the case of judges of the Court of Appeals the electorate of the geographic district in which he serves shall vote on the question of approval or rejection.
Ind. Gov't. - "Kosciusko County Commissioners Mull Public Record Fee Changes"
From Stacey Page Online, some quotes from an August 12th story by Phoebe Muthart:
Kosciusko Clerk of the Circuit Court Ann Torpy proposed an ordinance amending charges for certain information from the clerk’s office. The ordinance deals with computer records, voter history and certain information, including the lists of voters. Also, it deals with any other information available to the public under Indiana law.
Any information generated by the clerk’s office is entitled to impose a charge for duplicating election records. Currently, is costs $10 per CD diskette for voter history for the entire county and 2 cents per page for a computer print-out of voters. Torpy’s proposal is to lower the cost of the CD, but raise the price for each page to 5 cents.
County commissioners did not make a decision. Kosciusko County Councilman James Moyer is currently looking into fees charged by each department in the county. The board decided to wait and do changes, if any, all at once.
Ind. Decisions - "Serial killer Gibson gets 2nd death sentence"
Serial killer William Clyde Gibson was condemned Friday to die for the murder of Stephanie Kirk, whose body was buried in his New Albany backyard.
Gibson gave short, one-word answers to Floyd Superior Court Judge Susan Orth's questions, and swiveled in his chair as she detailed the brutal murder: How Kirk died after Gibson put his "hands in front of her throat" to strangle her, per his own confession.
Death was the "only appropriate sentence," Orth said in her nearly 30-page sentencing order.
It was the second death penalty for Gibson, who also was condemned last fall in the murder of family friend Christine Whitis.
Ind. Gov't. - "Aged-out foster kids get safety net" though Indiana's new Collaborative Care program
According to this long AP story by Tom Coyle:
Indiana’s Collaborative Care program, ... was started two years ago to help fill the gaps when youths turn 18 and age out of traditional foster care. The program arose from the Fostering Connections Act passed by Congress in 2008 to encourage states to extend foster youths’ benefits to age 21.
Alishea Hawkins, assistant deputy director of services and outcomes for the Indiana Department of Child Services, said the program is designed to provide financial and emotional support to help participants become self-supporting adults. Its services include helping older teenagers live on their own and providing opportunities to become more independent through programs that teach household skills, including cooking and budgeting, and life skills, such as how to apply for and keep a job.
“Many of our young people grow up in foster care where they are told what to do, when to do it and how to do it,” she said. “So many of these young people get to late adolescence, and they really don’t have the skills and abilities to make those decisions.”
The program, she said, is intended “as a replacement for that family, that social network.”
The program gives older youths in foster care more options than the state offered previously, including the chance to live on their own in apartments. They also can work with service providers to receive training they need to become independent.
Those opportunities are critical to help foster youths overcome challenges such as abuse and being moved from home to home, which can make it hard to make friends, attain academic stability and feel a sense of control, experts say.
To be eligible, youths must be in school or be working at least 80 hours a month or enrolled in a program that will help them get a job by providing money for housing and life-skills training.
Participants can live in a host home – sometimes with a relative – or in a group home, a college dorm or in an apartment with or without roommates. Case workers will walk those who want to move into an apartment through the process.
“They’ll help them with all of those pieces it takes, moving from dependency into an independent living arrangement,” Hawkins said.
David Reed, senior director of client services at The Villages of Indiana Inc., an Indianapolis-based agency that works with aged-out foster children, said the program is critical to helping those youths develop basic life skills.
“They are not prepared at age 18 to be able to go maintain an apartment and have food in their refrigerators and their pantries,” Reed said. “They need support from the state to provide those very basic things to help keep them alive.”
Hawkins said each former foster child needs different skills, so it’s up to service providers such as The Villages to develop individual plans.
The primary goal, she said, is to provide a safety net and connections so that youths “have some folks around their table, on their team, in their social network that they can rely on lifelong.”
Ind. Courts - New Chief Justice Loretta Rush to be sworn in today at 1 PM
As posted here last week, Justice Loretta Rush will be sworn in as Chief Justice as the news release last week noted:
Media are invited to attend and take video/photographs. A pool feed will not be available. There is limited space.ILB: This is a historic occasion. Until the Court was reorganized by the 1970 constitutional amendment, the title of chief justice as rotated among justices:
However, when the Indiana Constitution was amended in 1970 to change the system, Justice Norman Arterburn was selected as the court's first permanent chief justice, and served as chief justice until 1974. He served his last three years, 1974-1977, as a justice.*Richard M. Givan was the next Chief Justice, serving in that role from 1974 until 1987, 13 years.
Randall T. Shepard was chosen to become the Chief Justice of Indiana in March 1987 and served until his retirement on March 23, 2012, 25 years.
Brent E. Dickson became Chief Justice of Indiana on May 15, 2012.
Ind. Decisions - Upcoming oral arguments this week and next [Updated]
This week's oral arguments before the Supreme Court (week of 8/18/14):
- No oral arguments currently scheduled.
Next week's oral arguments before the Supreme Court (week of 8/25/14):
- No oral arguments currently scheduled.
Webcasts of Supreme Court oral arguments are available here.
This week's oral arguments before the Court of Appeals (week of 8/18/14):
Wednesday, August 20
- 10:00 AM - State Farm v. Radcliff (29A04-1311-CT-542) This largest defamation verdict in Indiana’s history is once again before this court as an appeal to the trial court’s denial of State Farm’s Trial Rule 60(B) motion. In its T.R. 60(B) motion, State Farm requested the trial court to grant a new trial on the limited issue of defamation based on State Farm’s discovery of new evidence purportedly establishing that Radcliff had procured the verdict by committing fraud on the court. In its appeal, State Farm presents this court with four procedural issues which we restate as follows:
1. Characterizing its T.R. 60(B) motion as solely a T.R. 60(B)(3) motion based on fraud and misconduct, State Farm asserts that the trial court abused its discretion by interpreting its T.R. 60(B) motion as a T.R. 60(B)(2) motion based on newly discovered evidence and applying T.R. 60(B)(2)’s requirements to its T.R. 60(B)(3) motion.
2. Whether the trial court abused its discretion by concluding that State Farm’s T.R. 60(B)(3) motion was barred by the law of the case due to this court’s denial of State Farm’s Appellate Rule 37 motion for remand in the first appeal where this court addressed State Farm’s request for alternative relief based on “waiver notwithstanding” and our supreme court subsequently denied State Farm’s request for emergency relief based on its T.R. 60(B) motion.
3. Whether the trial court abused its discretion by denying State Farm’s T.R. 60(B) motion as a matter of law.
4. Whether the trial court abused its discretion in declining to allow State Farm to engage in further protracted discovery pursuant to T.R. 60(D) and in ruling on the motion without an evidentiary hearing when Radcliff elected to respond to State Farm’s T.R. 60(B) motion on legal grounds as opposed to factual grounds and therefore no further pertinent evidence would need to be submitted to the trial court to aid in its ruling. The Scheduled Panel Members are: Judges Riley, Robb and Bradford. [Where: Room 431, Statehouse (WEBCAST)]
Next week's oral arguments before the Court of Appeals (week of 8/25/14):
Tuesday, August 26
- 10:00 AM - Wesco v. Arcelormittal (45A03-1307-PL-274) Arcelormittal Indiana Harbor, LLC ("Mittal") operates a steelmaking plant in northwestern Indiana. On April 28, 2006, an overhead crane at the plant malfunctioned and spilled a load of molten iron that caused a fire that damaged Mittal's property. Mittal sued WESCO for breach of warranty, alleging that WESCO sold it defective parts that caused the malfunction. A jury returned a verdict for Mittal in an amount in excess of $36 million. The trial court awarded prejudgment interest and costs and entered a final judgment in the amount of $39,031,555.96. WESCO appeals the judgment, alleging the trial court committed reversible error by failing to grant WESCO summary judgment; entering a discovery order protecting materials pertinent to an insurance investigation; admitting certain expert testimony; excluding evidence regarding remedial measures by Mittal; submitting an allegedly erroneous instruction; failing to sanction Mittal for alleged spoiliation of evidence; and awarding prejudgment interest.
The Scheduled Panel Members are: Judges Baker, Robb and Bradford.
[Where:Court of Appeals Courtroom (WEBCAST)]
- 1:30 PM - Getrag KG v. Walbridge Aldinger Company (80A02-1310-CC-860) Walbridge alleges that Getrag KG hired it to construct this plant, but, in late 2008, Getrag KG ordered Walbridge to stop construction and refused to pay Walbridge more than $35 million in expenses that Walbridge had incurred. Attached to Walbridge’s complaint were numerous purchase orders, each of which states that the parties shall abide by certain terms and conditions. Among these terms and conditions is a requirement that any disputes between the parties be resolved in Germany and pursuant to German law. As such, Getrag KG moved to dismiss Walbridge’s complaint. The trial court denied Getrag KG’s motion pursuant to Indiana Code Section 32-28-3-17, which declares “void” any “provision in a contract for the improvement of real estate in Indiana” that “makes the contract subject to the laws of another state” or “requires litigation . . . on the contract occur in another state.” On appeal, Getrag KG asserts that the terms and conditions are binding under Indiana law, that Indiana Code Section 32-28-3-17 does not apply on these facts, and that, if it did apply, the statute would be preempted by the Treaty of Friendship, Commerce and Navigation between the United States of America and the Federal Republic of Germany. The Scheduled Panel Members are: Chief Judge Vaidik, Judges Najam and Brown. [Where:Court of Appeals Courtroom (WEBCAST)]
ONLY those Court of Appeals oral arguments presented in the Supreme or Court of Appeals Courtrooms will be accessible via videocast.
The past COA webcasts which have been webcast are accessible here.
NOTE: For a printable version of this list of upcoming oral arguments, click on the date in the next line. Then select "Print" from your browser.
Friday, August 15, 2014
Law - Michigan law school faculty and staff cuts said to be 50% to 70%
Belinda Thurston reports today in the Lansing City Pulse - here are a few quotes from the long story:
THURSDAY, Aug. 14 – Western Michigan University Thomas M. Cooley Law School is delivering pink slips to faculty and staff in all of its Michigan campuses.
Sources in Lansing who are being laid off say the cuts are deep, upwards of 50 percent, according to one. Another said the impact could be as high as 70 percent. A Cooley spokesman disputed the amount, but said he did not have numbers. * * *
Last month WMU Cooley Law School announced its Ann Arbor campus would not be accepting entering freshmen. It stated at that time that faculty and staff layoffs were coming.
WMU Cooley Law School has seen more than a 40 percent drop in enrollment over the past few years. Cooley has raised tuition by 9 percent. S&P gave it a negative rating at the end of last year.
The cuts' “came about as a result of decreased enrollment which most if not all law schools have seen,” Robb said.
Courts - One Gov. charged with signing bill in exchange for a bribe; another indicted for vetoing a bill
An interesting, 22-page, non-Indiana opinion today out of the 7th Circuit, Empress Casino Joliet Corp. v. John Johnston, read the first paragraph by Chief Judge Wood and you will see why:
Deals are the stuff of legislating. Although logrolling may appear unseemly some of the time, it is not, by itself, illegal. Bribes are. This case requires us once again to decide whether some shenanigans in the Illinois General Assembly and governor’s office crossed the line from the merely unseemly to the unlawful. It involves a subject we have visited in the past: two industries that compete for gambling dollars. See Empress Casino Joliet Corp. v. Balmoral Racing Club, Inc., 651 F.3d 722 (7th Cir. 2011) (en banc). In 2006 and 2008, former Governor Rod Blagojevich signed into law two bills (to which we refer as the ’06 and ’08 Acts) that imposed a tax on certain in‐state casinos of 3% of their revenue and placed the funds into a trust for the benefit of the horseracing industry. Smelling a rat, the plaintiff casinos brought suit under the federal Racketeering Influenced and Corrupt Organizations Act (RICO), 18 U.S.C. § 1964, alleging that the defendants, all members of the horseracing industry, had bribed the governor to ensure that the bills were enacted. Viewing the evidence in the light most favorable to the plaintiffs (and of course not vouching for anything), we conclude that there was enough to survive summary judgment on the claim that the governor agreed to sign the ’08 Act in exchange for a bribe. We therefore reverse in part and remand for further proceedings on that part of the case.Also this evening, the AP is reporting:
AUSTIN, Texas (AP) -- A grand jury indicted Texas Gov. Rick Perry on Friday for allegedly abusing the powers of his office by carrying out a threat to veto funding for state prosecutors investigating public corruption - making the possible 2016 presidential hopeful his state's first indicted governor in nearly a century.
Ind. Courts - "Davis resigns as Harrison County judge"
Grace Schneider of the Louisville Courier Journal reports this evening in a story that begins:
Roger Davis, the Harrison Superior Court judge who announced suddenly last month that he’s not seeking re-election, has resigned, effective Aug. 23, to accept another job.
The Indiana Supreme Court has appointed former Harrison Circuit Judge Curtis Eskew Jr. to serve as judge pro tempore, leaving Gov. Mike Pence the option to appoint someone — most likely a member of the Republican party — to finish the term through 2014.
Davis, a Democrat, made no public announcement about the latest move and didn’t offer additional comment when contacted by email and phone. He forwarded an email he’d sent to Chief Justice Brent Dickson on Tuesday notifying him he’d informed Pence of the resignation. He said, “It has been an honor of a lifetime to serve the people of my home, the people of Harrison County, as a judge.
“It has been a unique honor to be a member of the Indiana Judiciary,” he added. “I have resigned to accept another professional position.”
Court administrators contacted Eskew, a fellow Democrat, earlier this week to ask him if he would serve and he accepted.
Law - "Paper Boys: Inside the dark labyrinthine, and extremely lucrative world of consumer debt collection"
That is the title to the cover story, written by Jake Halpern, in Sunday's NYT Magazine.
Not law - "It's a true fact!!! People who edit things no longer neeeded"
Into the ILB "Not Law but Interesting" category goes this column from Will Bunch of the Philadelphia Daily News, sent to the ILB by a reader. Don't miss reading it in full! A few quotes:
One of the most powerful and strongest companies in the field of newspapering, Gannet, last week announced what it is calling euphamystically "the newsroom of the future." Just like like my Internet blog, they are getting rid of the centerman in order that which they may bring the news directly to you. I was going to do some analyzing of their announcement but since I also have other blog posts -- including my take on the constitutional crisis in Iraq as well as a cool break-dancing video -- circling the place where airplanes land, I'm going to speed up the process with a technique that I call (and I should copywrite this so its not plagerized) "cuttting and pasting." * * *
In other worlds, newspapering companies like Gannettt are finally getting what we do best at Attywood, which is to break all the old rules -- the anarchic constrictures of fairness, balance, and even gramacality. That way we are free at last, free at last to carry on the words that Martin Luthor King once uttered in his 1942 "I Have a Dream" speech, to affect the comfortable and comfort the affected. C'mon, people who practice journalism, we can do this. Win this one for the Gimper!
Ind. Decisions - "Cherry-Picking: 7th Cir. J.Hamilton Criticizes Lawyers' Summary-Judgment Practice"
At the end of the opinion, Circuit Judge David Hamilton took the time to point out the ways in which the employer’s lawyers had misstated the record on summary judgment by selectively quoting from deposition testimony, and thereby misled the district court.
The court’s primary concern was that “Hospira repeatedly cherry-picked isolated phrases from Malin’s deposition and claimed that these ‘admissions’ doomed her case.” Slip Op. 23. In fact, Malin had not made those “admissions,” and “Hospira’s presentation of the evidence amounted to nothing more than selectively quoting language it likes and ignoring deposition language it does not like.” Id.
Judge Hamilton explained that this cherry-picking was a poor strategy on Hospira’s part: “Hospira seems to have based its litigation strategy on the hope that neither the district court nor this panel would take the time to check the record. Litigants who take this approach often (and we hope almost always) find that they have misjudged the court.”
Ind. Decisions - Court of Appeals issues 4 today (and 11 NFP)
For publication opinions today (4):
In Allison I. (Wagaman) Decloedt v. Shane C. Wagaman, a 13-page opinion, Judge Najam writes:
Allison (Wagaman) DeCloedt (“Mother”) appeals the dissolution court’s order denying her motion to relocate and granting Shane Wagaman’s (“Father”) petition to modify custody and parenting time. Mother presents a single issue for our review, namely, whether the dissolution court’s order is clearly erroneous. * * *In In the Matter of: S.A. (Minor Child), Child in Need of Services and M.H. (Father) v. The Indiana Department of Child Services , an 18-page opinion, Judge Riley writes:
Here, the evidence supports the dissolution court’s findings, and the findings support the conclusions. Thus, the findings and conclusions are not clearly erroneous and the dissolution court did not abuse its discretion when it denied Mother’s motion to relocate and granted Father’s petition to modify custody. Affirmed.
Appellant-Respondent, M.H. (Father), appeals the trial court’s Order continuing the adjudication of his minor child, S.A. (the Child), as a Child in Need of Services (CHINS). We reverse.In Dee Ward v. State of Indiana , a 15-page opinion, Judge Bradford writes:
During the early morning hours on April 10, 2013, Appellant-Defendant Dee Ward repeatedly struck J.M. with a leather belt, causing J.M. to suffer extreme pain and serious bruising from her waist to her ankles. J.M.’s mother and step-father called 911 upon discovering J.M.’s injuries immediately after Ward dropped J.M. off at their home. The medical personnel who treated J.M. observed the severity of J.M.’s injuries. In the course of receiving treatment, J.M. indicated to the treating paramedic and emergency room forensic nurse that her injuries were caused by Ward. Ward was subsequently charged with and convicted of Class C felony battery and Class A misdemeanor domestic battery.In Michael Kevin Mallory v. State of Indiana , a 5-page opinion, Judge Bradford writes:
On appeal, Ward contends that the trial court abused its discretion in admitting J.M.’s identification of him as the attacker through the testimony of the treating paramedic and forensic nurse. Ward also contends that the evidence is insufficient to sustain his conviction for Class C felony battery, i.e., battery committed by means of a deadly weapon. Concluding that the Confrontation Clause does not apply because J.M.’s statements to the treating paramedic and forensic nurse were not testimonial and that the evidence is sufficient to prove that Ward committed the underlying battery by means of a deadly weapon, we affirm.
Appellant-Petitioner Michael Kevin Mallory appeals the trial court’s denial of his petition to expunge his Class D felony conviction records. Indiana Code section 35-38-9-3(e) provides that the trial court “shall order” expungement if all statutory requirements are met. It is undisputed that Mallory met the requirements of Indiana Code section 35-38-9-3(e). Because the word “shall” is ordinarily construed as mandatory language, we conclude that Indiana Code section 35-38-9-3(e) unambiguously requires expungement if all statutory requirements are met. We reverse the trial court’s judgment and remand with instructions. * * *NFP civil opinions today (2):
The State concedes to this relief, acknowledging our holding in Taylor and the General Assembly’s amendment of Indiana Code section 35-38-9-9(d).
The judgment of the trial court is reversed and remanded with instructions.
NFP criminal opinions today (9):
Ind. Gov't. - "Business panel proposes IU govern IPFW: Pushes realistic funding formula"
The Fort Wayne Journal Gazette has an interesting story today by Vivian Sade about IU-Purdue Fort Wayne (IPFW). Here are a few quotes [ILB emphasis]:
Indiana University, not Purdue University, should govern IPFW, and the state's performance funding formula should reflect the number of students who graduate in five or six years instead of four.
Those were a few of the recommendations from local business officials who met with the State Budget Committee at IPFW on Thursday.
John Stafford, retired director of IPFW's Community Research Institute, and Bill Sheldrake, president of Policy Analytics and a co-author of the study, presented its findings. * * *
IPFW needs to manage and adjust its graduate programs to meet the needs of students and maintain a direct, consistent and formal communication structure between its campus and its governing main campus, the study found.
In addition, IPFW is requesting a state funding metric that is more responsive to the challenges and realistic performance patterns of a regional campus, according to the study.
The state's performance funding is based on increasing the number of those receiving degrees based on two- or four-year programs. It does not apply to IPFW or other regional campuses because those universities deal with a different demographic, Sheldrake said.
Modifications to the funding formula should include an incentive for regional campuses that increases baccalaureate degree completions at the five-year and six-year intervals, Sheldrake said.
“The two- or four-year programs many times do not apply to IPFW or other regional campuses because those universities are dealing with a different demographic,” he said.
“Many students are working full time in addition to attending school.”
Ind. Decisions - "Warner Bros. Wins Appeal Over Fictional Technology in 'Dark Knight Rises"
The 7th Circuit opinion yesterday in Fortres Grand Corporation v. Warner Brothers Entertainment (ILB summary here) is the subject of a story today in The Hollywood Reporter, written by Eriq Gardner. The subhead: "Catwoman's favorite piece of software won't confuse those who wish to purchase a 'clean slate.'"
Ind. Gov't. - Annex Books, yet again ... Indy files petition with SCOTUS
The ILB has many, many entries on the long-fought case of Annex Books v. City of Indianapolis, dating back to 2004. This one from Jan. 29th of this year includes a quote from the IndyStar: "A federal court has struck down an Indianapolis ordinance limiting the hours of adult bookstores, the latest in a decades-long series of local regulatory and law enforcement maneuvers taking aim at adult businesses." This ILB post from Jan. 22, 2014 begins: "The ILB has lost track of the various manifestations of Annex Books ..."
Late last evening SCOTUSblog named as its "petition of the day":
City of Indianapolis, Indiana v. Annex Books, Inc.
Issue: Whether, to satisfy the First Amendment as applied in Renton v. Playtime Theatres, Inc. and its progeny, an hours-of-operation regulation targeting negative secondary effects must be supported by highly specific, statistically-significant empirical evidence.
Thursday, August 14, 2014
Ind. Decisions - 7th Circuit decides a third Indiana case today
In U.S. v. Fletcher (ND Ind., Van Bokkelen), a 14-page opinion, Judge Rovner writes:
Randall Ray Fletcher, Jr. pled guilty to a five-count indictment charging him with one count of producing, two counts of receiving, and two counts of possessing child pornography, all occurring over a seven-year period. The district court sentenced him to a thirty-year term of imprisonment, followed by a lifetime of supervised release. Because his crimes spanned a range of years during which the guidelines for child pornography offenses underwent significant changes, his sentencing posed complex calculations and raised potential constitutional problems. We conclude that any errors the court made in calculating the guidelines sentence for Fletcher were harmless and we therefore affirm.
Ind. Gov't. - Vanderburgh County Republican chairman tries to have councilwoman disbarred
The ILB has had a number of posts re Evansville City Councilwoman Stephanie Brinkerhoff-Riley, who recorded the State Board of Accounts auditors' exit interview about her city and then made it publicly available. The most recent ILB post was from August 5th and was headed: "Ind. Gov't. - More on 'Special prosecutor says Brinkerhoff-Riley did not violate law.'"
The City County Observer: "Evansville's True Watchdog!" asks today:
[Is it true that] Vanderburgh County Republican Party Chairman Wayne Parke quietly filed a complaint with the Indiana State Bar Association [sic.] with intention to have City Councilwoman Stephanie Brinkerhoff-Riley stripped of her license to practice law?…our “Statehouse Mole” tells us that Mr. Parke’s complaint has been summarily dismissed as being without merit?Ordinarily to the ILB would have passed on this item...
The difference here is that the story includes a link to the complaint made to the Indianan Supreme Court Disciplinary Commission, along with many attachments. All of this information is of itself an attachment to a July 31st letter from the Disciplinary Commission to Ms. Brinkerhoff-Riley, advising her that the grievance had been filed and had been dismissed.
Environment - 2014 Edition of Indiana Environmental Statutes now available!
This is the new, 2014 edition of the annual publication, the Indiana Environmental Statutes, that I edit and publish each year. The publication is sponsored by the Environmental Law Section of the Indiana State Bar Association.
It is a convenient desktop resource, including Title 13 (Environment) of the Indiana Code, plus the Administrative Procedures Act (AOPA) and numerous other, related, Indiana statutes.
This year the soft-bound volume is 566 pp. and costs $30.00 plus shipping (note that shipping is less if you pool orders).
Order online (a preview of several pages also is provided at this link).
Ind. Decisions - 7th Circuit issues two Indiana opinions today
In Elliott Levin v. William Miller (SD Ind., Barker), a 13-page opinion with a separate concurring opinion, Judge Easterbrook writes:
Irwin Financial Corporation, a holding company, entered bankruptcy when its subsidiar ies failed. Both subsidiaries were banks (Irwin Union Bank & Trust and Irwin Union Bank, FSB), which the Federal Deposit Insurance Corp. closed and took over in 2009. The banks’ asset portfolios had been dominated by mortgage loans, whose value plunged in 2007 and 2008. The FDIC is in the process of collecting the banks’ assets and paying their debts. * * *In Fortres Grand Corporation v. Warner Brothers Entertainment (ND Ind., Simon), a 17-page opinion, Judge Manion writes:
Elliott Levin, Irwin Financial’s trustee in bankruptcy, filed this suit against three of its directors and officers. * * *
All of the litigants agree that the distinction between di rect and derivative claims depends on Indiana law, for Irwin was incorporated there. Indiana treats a stockholder’s claim as derivative if the corporation itself is the loser and the in vestor is worse off because the value of the firm’s stock declines.
[the ILB has hit only a high point or two]
The judgment of the district court is affirmed with re-‐‑ spect to counts 1, 2, 4, and 5. It is vacated with respect to counts 3 and 7. The case is remanded for further proceedings consistent with this opinion.
[J.Hamilton's concurring opinion begins] HAMILTON, Circuit Judge. I join Judge Easterbrook’s opinion for the court. His opinion accurately applies the difference between a shareholder’s direct and derivative claims, which all parties agree is the decisive legal question. Counts three and seven are correctly categorized as direct claims and must be remanded, even though they do not have promising futures because of the Business Judgment Rule.
I have come to that conclusion reluctantly, however. Stepping back from the parties’ arguments, I believe this case raises some broader policy questions that deserve consideration by the FDIC and Congress, including why the direct/ derivative distinction should still matter, either under the current version of the Financial Institutions Reform, Recovery, and Enforcement Act of 1989, see 12 U.S.C. § 1821(d)(2)(A), or perhaps other statutory amendments that Congress may want to consider. * * *
Counsel for Irwin Financial’s trustee pointed out in oral argument that the FDIC is supported by insurance premiums collected by covered banks rather than by direct appropriations by Congress. The FDIC asserts, however, that its insurance is backed by the full faith and credit of the United States government, meaning all taxpayers. In light of that public interest and the banks’ ability to socialize the losses they cause, I hope the FDIC and/or the Congress will consider this issue.
Fortres Grand Corporation develops and sells a desktop management program called “Clean Slate.” When Warner Bros. Entertainment used the words “the clean slate” to describe a hacking program in the movie, The Dark Knight Rises, Fortres Grand noticed a precipitous drop in sales of its software. Believing Warner Bros.’ use of the words “clean slate” infringed its trademark and caused the decrease in sales, Fortres Grand brought this suit. Fortres Grand alleged that Warner Bros.’ use of the words “clean slate” could cause consumers to be confused about the source of Warner Bros.’ movie (“traditional confusion”) and to be confused about the source of Fortres Grand’s software (“reverse confusion”). The district court held that Fortres Grand failed to state a claim under either theory, and that Warner Bros.’ use of the words “clean slate” was protected by the First Amendment. Fortres Grand appeals, arguing only its reverse confusion theory, and we affirm without reaching the constitutional question. * * *
Because Fortres Grand has failed to plausibly allege confusion, it has failed to state a claim for trademark infringement under 15 U.S.C. §§ 1114, 1125 and Indiana unfair competition law. Accordingly, the district court did not err by granting Warner Bros.’ motion to dismiss the complaint.
Ind. Courts - IBA Appellate Roundtable with Justice Rucker and Chief Judge Vaidik
Commentary by Joel Schumm, professor at Indiana University's Robert H. McKinney School of Law
IBA Appellate Roundtable with Justice Rucker and Chief Judge Vaidik
Justice Rucker and Chief Judge Vaidik were the featured guests at the annual Appellate Roundtable hosted by the Appellate Practice Section of the Indianapolis Bar Association yesterday afternoon. After playing this clip of a terrible (but short) Seventh Circuit oral argument, Justice Rucker briefly discussed brief writing and Chief Judge Vaidik discussed the importance of facts and storytelling (in briefs and oral argument). They then turned to audience questions on a wide variety of topics.
Brief Writing: Justice Rucker
Justice Rucker emphasized that brief writing is an art—not a science. What pleases one judge may not please another, although there are some inflexible rules, which include following the Appellate Rules. Those rules require when raising a claim about a jury instruction that counsel quote the jury instruction and the colloquy with the trial court.
Justice Rucker said underlining, bold, and CAPS should rarely be used for emphasis; rewrite the sentence if the point is not clear without it. He encouraged the use of headings and subheadings.
Finally, he stressed the importance of the Question Presented on transfer, providing some poor examples (which merely parrot the language of Appellate Rule 57(H)), then offered a good example that includes the substantive legal issue (paraphrased by me as follows): Is the decision of the Court of Appeals’ stating specific intent is not required for an attempted murder conviction in conflict with this Court’s opinion in Spradlin, which held specific intent is required.
Facts/Storytelling: Chief Judge Vaidik
Chief Judge Vaidik is a big fan of storytelling. She is currently reading Prof. Philip Meyer’s book. She encouraged the audience to present facts like a story; the best storyteller in a brief and oral argument is the most persuasive. Stories have universal themes of good and bad and include characters (they have names—personalize), characters have motives, and a story needs to be told from a point of view (creativity is encouraged here). Stories need to be consistent with the standard of review and include both good and bad facts—or the writer will lose credibility.
Some Questions and Answers
- E-Filing is Coming: The current target for e-filing of briefs is September 2015, although it could be later. Beginning this September the clerk’s office will scan briefs and records for the judges’ use on their computers or iPads. Chief Judge Vaidik’s current panel is using SharePoint. She remarked it is difficult to stay interested reading briefs on a computer.
- Supreme Court Conferences: Justice Rucker explained that before the Court’s weekly conference, each justice will have reviewed each case and voted to grant, discuss, or deny. If all five justices vote to deny, the case will not be discussed. Each case with at least one vote to grant or discuss will be discussed and voted on by all five justices at conference.
In cases that have not been assigned to a justice to author an opinion, non-routine motions at the Indiana Supreme Court are discussed by all the justices and voted on at conference. If the case has been assigned, the authoring justice will receive the motion and decide the course of action.
- Transfer From NFP Opinions: Justice Rucker acknowledged that the status of an opinion as not-for-publication is a factor that works against a grant of transfer. (Lawyers will therefore, wisely or unwisely, sometimes file a motion to publish with the Court of Appeals.) The justices prefer not to engage in error correction, although they sometimes do. Chief Judge Vaidik recited, with attribution, the ten to one odds of a transfer grant in an NFP versus FP opinion, which was previously posted on the ILB. Looking at all of 2013, the odds were not quite as dim for those with an NFP opinion at six to one.
- Standard of Review: Although the Appellate Rules require inclusion of the standard of review, lawyers should not go on and on about something not in dispute. As Chief Judge Vaidik explained, if she picks up a 39-page brief with a 3-page standard of review, she only has to read 36 pages.
- Oral Argument Preparation by the Judges/Justices: Justice Rucker explained that the Indiana Supreme Court is a “hot” bench, which has prepared for each argument. He reads all the briefs in the case, and in most civil cases a memo prepared by the administrator’s office. Sometimes his law clerks will also prepare a memo.
Chief Judge Vaidik explained that each Court of Appeals’ judge will have a three-ring binder prepared by the presumptive writing judge. The binder includes a bench brief with the key facts and issues and possibly some questions for the lawyers, copies of any key parts of the record, and copies of key cases or statutes. The three judges on the panel are unlikely to have discussed the case before the argument, except perhaps for a few minutes right before the argument begins.
- Exhibits at Oral Argument: Justice Rucker and Chief Judge Vaidik agreed that exhibits at oral argument can sometimes be helpful. They cited key statutory language or an insurance/contract provision as examples. As Chief Judge Vaidik explained, people/judges are better able to understand something if they hear it and see it at the same time. Exhibits should be limited to what judges must understand for the advocate to win. Every property dispute, for example, should include a map. They seldom find demonstrative exhibits helpful, including that “utility bucket” previously discussed here.
- Grandparent Visitation? Good Luck: In response to a question, Chief Judge Vaidik noted a pattern of limiting grandparent visitation, especially since this February opinion from the Indiana Supreme Court. She is a grandparent and has been dissenting quite a bit in some of these cases.
Ind. Courts - New Chief Justice Loretta Rush to be sworn in Monday
From the Supreme Court news office:
The formal administration of the oath for Loretta H. Rush as Chief Justice of Indiana will take place on Monday, August 18. Chief Justice Brent E. Dickson announced the date when his colleague will officially become the leader of the high court and he will step down from his role as chief justice.The Supreme Court Library is a small place, so this must be a simple affair without an audience. No videocast is mentioned.
Monday, August 18
1:00 p.m. EDT
Supreme Court Law Library
State House, Room 316
The brief ceremony will include remarks from Chief Justice Dickson and newly sworn-in Chief Justice Rush. Governor Pence will administer the oath of office. The ceremony will be brief—with current and former justices and appellate court judges.