Monday, July 25, 2016

Ind. Gov't. - Still more on "Utility commission job sits open as cases stack up"

Updating this July 7th ILB post, reporting that applications to fill the vacancy for the Indiana Utility Regulatory Commission were due by close of business on Wednesday, July 20, 2016, the Governor's Office has now announced:

... the names of 10 people who will be interviewed to serve as a commissioner at the Indiana Regulatory Commission. The candidates to be interviewed are:
  • Laura Arnold
  • Keith Beall
  • Jeb Bardon
  • Sarah Freeman
  • Jeff Golc
  • Tim Jeffers
  • David Johnston
  • Mayra Jones
  • Shawn Kelly
  • Christopher Starkey
Ronald Turpin has withdrawn his application.

The Nominating Committee is evaluating candidates to fill one current vacancy on the Indiana Utility Regulatory Commission created by the appointment of Commissioner Carolene Mays-Medley to be the Executive Director of the White River State Park Development Commission. The Committee will present Governor Mike Pence with a list of three qualified candidates from which he will select one to serve the remainder of Mays-Medley’s term. Commissioner Mays-Medley’s term expires December 31, 2017.

Interviews will be conducted on Friday, August 5, 2016, in the Indiana Statehouse, Room 319.

Members of the Nominating Committee are Committee Chair Allen Paul, Eric Scroggins, John Blevins, Larry Buell, Win Moses, Michael Evans, and Michael Mullett.

Posted by Marcia Oddi on July 25, 2016 04:29 PM
Posted to Indiana Government

Ind. Gov't. - Update on "No tax break for feminine hygiene products or diapers"

That was the heading to this Jan. 28, 2016 story in the Fort Wayne Journal Gazette, reported by Niki Kelly. Some quotes:

Indiana House Republicans on Thursday turned back attempts to give Hoosiers a sales tax break when buying feminine hygiene products or diapers.

Nationally, a movement against the so-called tampon tax has popped up recently but it was a first for Indiana.

Indianapolis Democrat Rep. Christina Hale offered both amendments to a bill that provided a similar sales tax exemption for buying gold and silver bars.

She said women must buy these products every month of their lives and it can be expensive and burdensome. Hale said giving a tax break to people who like to purchase gold bars is evidence the state can do this.

But the amendment failed - with all Republicans voting against it.

A separate amendment for diapers received five Republican votes but still failed decisively. Rep. Casey Cox, R-Fort Wayne, did support the amendment.

Rep. Scott Pelath, D-Michigan City, said the base bill creates a tax break so a guy can hug his gold bar in a shelter. He encouraged them to add the amendment and it could be a bill for "prepper and pampers."

Shari Rudavsky had this story in the Indianapolis Star, also on Jan. 28. Some quotes:
Who deserves a tax break: Those who buy gold bullion, women who menstruate and buy feminine hygiene products, or families who buy diapers for their youngsters?

For a moment Wednesday, the Indiana House had the opportunity to exempt all of the above items from state sales tax.

The tax-break fervor began with a bill that addressed would-be bullion buyers, adding Indiana to a list of 34 states that provide a sales tax exemption for purchases of precious metal currency such as gold and silver coins.

Rep. Christina Hale, D-Indianapolis, proposed amendments that would extend the exemption to feminine hygiene products and diapers, hopping on to the bandwagon of a national movement to ban the so-called tampon tax. Only a handful of states deem these items necessities and tax-exempt.

With one in six women and girls in Indiana living in poverty, Hale argued that they and other women were just as deserving of a tax break when it comes to buying feminine hygiene products as are those who deal in precious metals.

In March of this year, Lucy Westcott of Newsweek reported that "Five Women Sue to End New York ‘Tampon Tax.’" Some quotes:
On Thursday, five women filed a class action against the New York State Department of Taxation and Finance and its commissioner, Jerry Boone, urging state lawmakers to lift the tax on tampons and other feminine hygeine products. The lawsuit claims that the four percent New York state tax collected on tampons and sanitary pads, which are not considered medical items under state law, “violates the Equal Protection Clauses of the United States and New York Constitutions.”

The plaintiffs—Margo Seibert, Jennifer Moore, Catherine O’Neil, Natalie Brasington and Taja-Nia Henderson—say that while New York state doesn't tax items deemed “medical,” including Rogaine, dandruff shampoo and lip balm, tampons and sanitary pads—items used only by women and classed as “general merchandise”—are taxed.

The defendants “should be required to follow the law, and return the many millions of dollars they took illegally at the expense of women’s health,” the suit states.

“It is a vestige of another era, and now is the time to end it,” the lawsuit says. Tampons and sanitary pads “are not luxury items, but a necessity for women’s health,” it goes on to say.

The federal Food and Drug Administration (FDA) classes tampons and pads as “medical devices,” according to the lawsuit. The products help prevent illnesses, the suit states. * * *

New York Governor Andrew Cuomo said on Thursday that the tax should be repealed. Earlier this year, Manhattan Assemblywoman Linda Rosenthal introduced a bill seeking to end the state's taxation on tampons and pads.

Several U.S. states, including Pennsylvania and Minnesota, have successfully stopped the tax, while Connecticut and Illinois are considering changes to the law. Earlier this month, an all-male panel of lawmakers in Utah voted against removing the tax on feminine hygiene products. President Barack Obama in January said he doesn’t agree with the tax.

Here is a copy of the lawsuit.

Last week, (July 21st) Abrigal Jones of Newsweek reported, in a story headed "New York Terminates the Tampon Tax,"

New York became the 11th state without a tax on menstrual products when Governor Andrew Cuomo signed legislation eliminating local and state sales taxes on them.

“This is a regressive tax on essential products that women have had to pay for far too long and lifting it is a matter of social and economic justice,” Cuomo said in a statement. The new law, which goes into effect on September 1, 2016, includes panty liners and newer products such as period underwear. * * *

Of the 10 other states that don’t tax menstrual products, five have no sales tax in the first place (Alaska, Delaware, Montana, New Hampshire and Oregon) and five exempt menstrual products (Maryland, Massachusetts, Minnesota, New Jersey and Pennsylvania).

Since the start of 2016, 15 states have introduced legislation or initiated legislative debate to eliminate the tampon tax. It’s a dramatic turn for an issue that was barely even whispered about one year ago. “I hope that of the 15 states that took up this issue this term, more of them will feel the pressure or the will to see it through next legislative session,” says Jennifer Weiss-Wolf, a leading writer and advocate for menstrual equity. In addition to New York, Illinois and Connecticut have both seen legislative success in repealing the tampon tax.

Posted by Marcia Oddi on July 25, 2016 12:22 PM
Posted to Indiana Government

Courts - "Appeals courts split on seizing assets connected to state terror sponsors" 7th and 9th Circuits

That is the heading of this long July 22nd Reuters "One the Case" column by Alison Frankel. Here are a few quotes:

It is exceedingly difficult for U.S. victims of state-sponsored terrorism to collect money, even when they’ve won default judgments against Iran, Syria and the Sudan. * * *

In 2008, Congress wanted to knock down some of the barriers to collection for antiterrorism plaintiffs holding judgments against state sponsors. One of the biggest obstacles was the U.S. * * * Congress amended FSIA in 2008, apparently in response to the Supreme Court’s so-called Bancec doctrine. But the language of the amendment wasn’t exactly clear on whether the amendment created a new and independent right, outside of FSIA restrictions, for terror victims trying to enforce judgments against state sponsors or whether the new provision just eliminates the Bancec requirements but leaves intact other FSIA restrictions.

This week, the 7th Circuit
issued a ruling on just what seizures the amendment authorizes – and it reached precisely the opposite conclusion as the 9th Circuit in a decision last month on the same question. What’s more, the 7th Circuit panel – Judges Diane Sykes and William Bauer and U.S. District Judge Michael Reagan of East St. Louis, sitting by designation – specifically overruled two previous 7th Circuit opinions cited in last month’s contrary decision by the 9th Circuit. The 7th Circuit’s new ruling, in a case captioned Rubin v. Islamic Republic, creates a clear split between two appellate circuits on U.S. terror victims have a freestanding right to execute on judgments regardless of whether the assets they want to seize would otherwise be shielded under the Foreign Sovereign Immunities Act.

Posted by Marcia Oddi on July 25, 2016 11:50 AM
Posted to Ind. (7th Cir.) Decisions

Ind. Decisions - More on: Purvi Patel feticide conviction vacated

Updating this ILB post from Friday, which included a summary of the opinion, here are some news rep[orts on the Court of Appeals' ruling:

  • "Court tosses woman's feticide conviction," is a July 22nd AP story from Tom Davies, here as published in the Kokomo Tribune. Some quotes:
    The Indiana Court of Appeals overturned the feticide conviction of a woman found guilty of killing her premature infant by taking abortion-inducing drugs, saying Friday the state's law wasn't intended to be used "to prosecute women for their own abortions."

    The ruling comes in the case of Purvi Patel, who was convicted of neglect and feticide last year. However, the court upheld a lower-level felony neglect of a dependent conviction.

    She was sentenced to 20 years in prison in 2015, two years after her self-induced abortion at her family's home. Women's advocacy groups have been heavily involved in the case, saying it marks the first time a state feticide law was used against a woman because of an alleged self-induced abortion.

    The appeals court ruled that Patel, who is currently in state prison on the neglect and feticide convictions, should be resentenced on the lower-level felony charge, which carries a possible prison term of between six months and three years. It wasn't immediately clear how quickly that resentencing could happen and whether Patel could soon be released from prison. * * *

    Two dozen women's advocacy groups, as well as Planned Parenthood and the American Civil Liberties Union, filed friend-of-the-court briefs siding with Patel.

    At least 38 states have fetal homicide laws, according to the National Conference of State Legislatures. The Patel case was the first time a state feticide law was used against a woman specifically because of "an alleged self-induced abortion," said Jill Adams, executive director of the abortion-rights advocacy group Center on Reproductive Rights and Justice.

    Adams said she was glad the appeals court overturned Patel's feticide conviction, but that it was still worrisome that she faced a felony neglect conviction. Adams called the prosecution a misuse of the criminal justice system.

    "No person in Purvi Patel's position should have to feel threat of arrest or jail for ending their own pregnancy," she said. "That is not what these laws were put in place to do."

  • "Indiana court overturns Purvi Patel feticide conviction," is a July 22nd story in the Indianapolis Star, reported by Brian Eason. Some quotes:
    The Indiana Court of Appeals on Friday overturned the 2015 feticide conviction of Purvi Patel, the Northern Indiana woman whose botched, self-induced abortion became a flash point in the national debate over abortion rights.

    In a 3-0 ruling, the judges said that the state feticide statute was not intended to apply to abortions, and legal experts said that — barring a successful appeal — it should give Indiana prosecutors pause before bringing similar charges against pregnant women in the future.

    In its decision, the court relied heavily on how prosecutors have applied the feticide law in the past, noting that this case was an "abrupt departure" from its typical usage: cases in which a pregnant woman and her unborn child are the victims of violence.

    "The state's about-face in this proceeding is unsettling, as well as untenable" under prior court precedent, Judge Terry Crone wrote in the ruling.

    The court also said that because many of the state abortion laws dating tothe 1800s explicitly protect pregnant women from prosecution, it was a stretch to believe that lawmakers intended for the feticide law to be used against pregnant women who attempt to terminate a pregnancy. * * *

    But even as the judges overturned the feticide and a Class A felony conviction, Friday's ruling wasn't a total victory for Patel.

    It stopped short of clearing her of any criminal responsibility for what transpired on July 13, 2013, upholding a lower-level felony neglect conviction for failing to provide medical care to the baby, who medical experts testified was alive and breathing after birth.

Posted by Marcia Oddi on July 25, 2016 11:29 AM
Posted to Ind. App.Ct. Decisions

Ind. Decision - Indiana case decided by 7th Circuit on July 22nd

In Janet Riley v. Elkhart Community Schools (ND Ind., Nuechterlein, Magistrate Judge), a 14-page opinion, Judge Bauer writes:

Plaintiff‐appellant, Janet Riley, sued defendant‐appellee, Elkhart Community Schools (“ECS”), for discrimination under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e (“Title VII”), discrimination under the Age Discrimination in Employment Act, 29 U.S.C. § 621 (“ADEA”), and violation of her equal rights under 42 U.S.C. § 1981. Riley roots her causes of action in ECS’s failure to promote her to various positions during her career as a teacher with the school district. The district court granted summary judgment for ECS on all claims, based on procedural bars and insufficient evidence. We affirm.

Posted by Marcia Oddi on July 25, 2016 11:23 AM
Posted to Ind. (7th Cir.) Decisions

Ind. Decisions - Court of Appeals issues 1 opinion(s) today (and 2 NFP memorandum decision(s))

For publication opinions today (1):

In Darrell Birge and Sandra Birge v. Town of Linden, Indiana , a 13-page opinion, Judge Robb writes:

Darrell and Sandra Birge own farmland in Montgomery County, Indiana. In 2014, the Birges filed a complaint against various governmental entities and independent contractors after modifications to an existing drainage system caused flooding on their property. The complaint named the Town of Linden (“Town”) as a defendant. The Town filed a motion to dismiss for failure to state a claim, which the trial court granted. The Birges now appeal the dismissal of their claims against the Town. Concluding the trial court erred in dismissing the Birges’ complaint for failure to state a claim, we reverse and remand. * * *

The complaint asserts claims for nuisance, civil conspiracy, and inverse condemnation. In granting the Town’s motion to dismiss for failure to state a claim, the trial court concluded it was clear on the face of the complaint that discretionary function immunity applies in this case and the Birges failed to allege facts supporting a claim for civil conspiracy. We conclude otherwise.

[A. Discretionary Function Immunity] * * * We express no opinion as to the ultimate resolution of the immunity issue, but to the extent the trial court concluded immunity under the ITCA would bar the Birges’ claim for inverse condemnation, the trial court erred. * * * If the Town is entitled to discretionary function immunity in this case, immunity will extend only to tort claims brought under the ITCA.

[B. Civil Conspiracy] * * * In its order granting the Town’s motion to dismiss, the trial court recognized the pleaded facts may support an underlying claim for nuisance1 but concluded the tort of nuisance does not constitute an “unlawful” purpose or means. See App. at 61 (noting the Birges “label the planning and construction [of the storm drain] as ‘wrong’ because of the alleged result of nuisance, not because of an unlawful purpose or means”). This conclusion was error. An allegation of civil conspiracy is merely an assertion of concerted action in the commission of a tort causing damage to the Birges. Accordingly, the trial court erred in concluding the Birges failed to allege facts supporting a claim for civil conspiracy.

NFP civil decisions today (0):

NFP criminal decisions today (2):

Shannon C. Blankenship v. State of Indiana (mem. dec.)

Dereck D. Hendricks v. State of Indiana (mem. dec.)

Posted by Marcia Oddi on July 25, 2016 11:08 AM
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Upcoming oral arguments this week and next

This week's oral arguments before the Supreme Court (week of 7/25/16):

  • No oral arguments currently scheduled.

Next week's oral arguments before the Supreme Court (week of 8/1/16):

  • 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 7/25/16):

Monday, July 25

  • 1:00 PM - Sauntio Antonio Carter v. State of Indiana (49A04-1511-CR-01823) Appellant-Defendant, Sauntio Carter (Carter), appeals his conviction for battery resulting in bodily injury, a Class A misdemeanor. Carter's conviction stems from an incident in which he punished his fourteen-year-old daughter by hitting her with his belt at least fourteen times. On appeal, Carter claims that there is insufficient evidence to uphold his conviction because he lacked the requisite criminal intent. Rather, he maintains that he used reasonable force to discipline his child for her unacceptable behavior. Carter further claims that the State failed to sufficiently rebut his affirmative defense of parental privilege. The Scheduled Panel Members are: Judges Riley, Crone and Sr. Judge Shepard. [Where: Supreme Court courtroom (WEBCAST)]
Tuesday, July 26
  • 1:00 PM - Maintenance Dynamics, Inc., et al. v. Patricia Amsden (45A05-1504-CT-00171) Defendant Bar appeals judgment on a jury verdict for $7,500,00 I a dram shop/wrongful death action contending trial court erred in denying Motion to Directed Verdict, improperly instructed the jury on willful and wanton misconduct and Dram Shop liability, and improperly allowed the admission of certain evidence. Other appellants and appellee have reached a settlement. The Scheduled Panel Members are: Judges Riley, Kirsch and Pyle. [Where: Court of Appeals courtroom (WEBCAST)]
Wednesday, July 27
  • 1:30 PM - Jordache White, et al v. George Reimer (71A03-1602-CT-00270) In this appeal, Jordache White (White), American Transport LLC (American Transport), and Canal Insurance Company (Canal Insurance) appeal the trial court’s decision to deny their joint motion to set aside a default judgment in favor of plaintiff George Reimer. White, American Transport, and Canal Insurance contend that the trial court lacked jurisdiction to enter a default judgment because they did not receive actual or adequate service; that Reimer did not exercise due diligence to obtain American Transport and White’s whereabouts before utilizing the Secretary of State for constructive service; and that Reimer began taking additional steps to attempt service on American Transport and White only after the default judgment was entered. The Scheduled Panel Members are: Judges Najam, Robb and Crone. [Where: Court of Appeals courtroom (WEBCAST)]

Next week's oral arguments before the Court of Appeals (week of 8/1/16):

  • No oral arguments currently scheduled.

ONLY those Court of Appeals oral arguments presented in the Supreme or Court of Appeals Courtrooms generally will be accessible via videocast.

Past Court of Appeals oral arguments which have been webcast are accessible here.


NOTE: For a printable version of this list of upcoming oral arguments, click on the date in the next line. Then select "Print" from your browser.

Posted by Marcia Oddi on July 25, 2016 07:47 AM
Posted to Upcoming Oral Arguments

Sunday, July 24, 2016

Law - "Deep dives into realities of sex offender registries two decades after they started to proliferate"

Sentencing Law and Policy recommends:

... two lengthy new pieces looking at the realities of sex offender registries:
  • "Why the sex offender registry isn’t the right way to punish rapists" [from Vox]

  • "I'm a public defender. My clients would rather go to jail than register as sex offenders." [also from Vox]

Posted by Marcia Oddi on July 24, 2016 02:40 PM
Posted to General Law Related

Courts - "Lyle Denniston’s SCOTUSblog Exit Interview"

This is a quite interesting interview with Lyle Denniston of SCOTUSblog, conducted by Casey Sullivan of Bloomberg Law. Recommended.

Posted by Marcia Oddi on July 24, 2016 02:35 PM
Posted to Courts in general

Friday, July 22, 2016

Ind. Decisions - Purvi Patel feticide conviction vacated

In Purvi Patel v. State of Indiana, a 42-page opinion, Judge Crone writes:

Thirty-two-year-old Purvi Patel managed her father’s restaurant in Mishawaka. A relationship with a restaurant employee resulted in her pregnancy. In June 2013, she purchased mifepristone and misoprostol online from a Hong Kong pharmacy and used those drugs to terminate the pregnancy at home. On the evening of July 13, she delivered a live baby of approximately twenty-five to thirty weeks gestation who died shortly after birth. She drove to the restaurant, put the baby in a nearby dumpster, and drove herself to the emergency room.

The State charged Patel with class A felony neglect of a dependent, alleging that she failed to provide any medical care to her baby immediately after its birth, which resulted in its death. The State also charged Patel with class B felony feticide, alleging that she knowingly terminated her pregnancy with the intention other than to produce a live birth or to remove a dead fetus. A jury found her guilty as charged. The trial court sentenced Patel to thirty years of imprisonment for neglect of a dependent, with twenty years executed and ten years suspended, and a concurrent executed term of six years for feticide.

On appeal, Patel argues that her neglect of a dependent conviction should be overturned because it is not supported by sufficient evidence. She also argues that her feticide conviction should be overturned because the feticide statute is either inapplicable or unconstitutional as applied to her.

As for the neglect conviction, we hold that the State presented sufficient evidence for a jury to find that Patel was subjectively aware that the baby was born alive and that she knowingly endangered the baby by failing to provide medical care, but that the State failed to prove beyond a reasonable doubt that the baby would not have died but for Patel’s failure to provide medical care. Therefore, we vacate Patel’s class A felony conviction and remand to the trial court with instructions to enter judgment of conviction for class D felony neglect of a dependent and resentence her accordingly.

As for the feticide conviction, we hold that the legislature did not intend for the feticide statute to apply to illegal abortions or to be used to prosecute women for their own abortions. Therefore, we vacate Patel’s feticide conviction. * * *

[Section 2.3 – "The legislature did not intend for the feticide statute to apply to women who have abortions" - pp. 39-42]

Conclusion. We vacate Patel’s convictions for class A felony neglect of a dependent and feticide. We remand to the trial court with instructions to enter judgment of conviction for class D felony neglect of a dependent and resentence Patel accordingly.

ILB: The ILB has had many posts involving or mentioning the Purvi Patel case - access the list here.

Posted by Marcia Oddi on July 22, 2016 11:30 AM
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Court of Appeals issues 6 opinion(s) today (and 9 NFP memorandum decision(s))

For publication opinions today (6):

In Gregg Appliances, Inc., and HHGregg, Inc. v. Dwain Underwood, on behalf of himself and all others similarly situated, a 9-page opinion, Judge May writes:

Dwain Underwood and other senior managers at HHGregg, Inc. (“Gregg”) brought a class action after Gregg did not pay them bonuses based on Gregg’s 2012 earnings before interest, taxes, depreciation, and amortization (“EBITDA”). Gregg asserted its EBITDA was below the threshold level for payment of the bonuses, but its calculation of EBITDA excluded nearly forty million dollars in life insurance proceeds it received after its executive chairman died. The trial court granted summary judgment for Underwood after determining a Total Rewards Statement (“TRS”) Gregg provided, indicating what level of EBITDA would result in bonuses, required the EBITDA to include the insurance proceeds. As the life insurance proceeds Gregg received that year were properly excluded from EBITDA, Gregg was not obligated to pay the bonuses.
We therefore reverse and direct entry of summary judgment for Gregg.
In Richard Wilson and Hollie Wilson v. Charles M. Huff and Bonnie M. Huff, an 11-page opinion, Judge Najam concludes:
The trial court did not err in imputing knowledge of the Huffs’ leasehold interest in the Property to the Wilsons and holding that the Wilsons failed to prove their counterclaim alleging fraudulent misrepresentation. Thus, we affirm the trial court’s judgment for the Huffs on their claim and the Wilsons’ counterclaim.
In Santiago Valdez v. State of Indiana , an 18-page opinion, Judge Baker writes:
Santiago Valdez appeals his convictions for Class B Felony Attempted Rape1 and Class C Felony Criminal Confinement.2 He argues that the trial court made evidentiary errors and that the State engaged in prosecutorial misconduct. During closing arguments, the prosecutor hinted to the jury that the defense counsel improperly influenced an expert witness outside of the trial. We find that these statements constituted prosecutorial misconduct, but that a prompt admonishment from the trial court prevented Valdez from being placed into grave peril. We also find that the trial court did not make evidentiary errors. Consequently, we affirm. * * *

Our adversarial system of justice can only function when based on a certain level of respect and decorum, and will quickly break down if attorneys hurl wild, baseless accusations of misconduct at each other. To engage in such conduct is to enter a race to the bottom, where the attorneys who are willing to make such accusations against other attorneys will sound authentic and honest (Deputy Prosecutor Hoffman made sure to preface his misconduct with, “I’ll just tell you I’ll call it as I see it,” tr. p. 1423), while more circumspect and honorable attorneys who are not willing to make such accusations will sound like they are hiding something. We cannot countenance a trial environment in which respectful attorneys have an inherent disadvantage. We admonish Mr. Hoffman to refrain from such conduct in the future.

In David Anthony Jordan v. State of Indiana , a 14-page opinion, Judge Pyle writes:

David Anthony Jordan (“Jordan”) appeals the trial court’s order revoking his probation and ordering him to serve part of his previously suspended sentence. Jordan does not challenge the sufficiency of the evidence underlying his probation violation or the trial court’s ruling that he serve twelve years of his previously suspended sentence. Instead, he challenges the validity of the probation itself. Specifically, he argues that: (1) the special judge did not have authority to enter the revocation order; (2) the original judge, who had previously recused himself from the case, did not have authority to place him on probation; and (3) his probation revocation counsel was ineffective because counsel failed to challenge the validity of Jordan’s probation on the basis that it was imposed by the previously-recused judge. Concluding that Jordan has waived his challenges to the judges’ authority and has failed to meet his burden on his ineffective assistance of counsel claim, we affirm the trial court’s order revoking Jordan’s probation.
In Mark A. Conley v. State of Indiana , a 7-page opinion, Judge Najam concludes:
This evidence demonstrates that Officer Sinks did, by visible means, order Conley to stop fleeing. Under these facts and circumstances, we hold that a reasonable person would have interpreted Officer Sinks’ hand gesture as a visual command to stop. And Officer Sinks’ testimony supports a reasonable inference that Conley saw that gesture but proceeded to run from Officer Sinks. The State presented sufficient evidence to support Conley’s resisting law enforcement conviction. Affirmed.
Purvi Patel v. State of Indiana - ILB summary here

NFP civil decisions today (1):

Michael Moore v. Brittney Baker (mem. dec.)

NFP criminal decisions today (8):

Dereck Worthington v. State of Indiana (mem. dec.)

Troy Stevenson v. State of Indiana (mem. dec.)

Denna Kay Kinser v. State of Indiana (mem. dec.)

Brandon Lewis v. State of Indiana (mem. dec.)

Calvin Castillo v. State of Indiana (mem. dec.)

Victor Karp v. State of Indiana (mem. dec.)

Michael Heffern v. State of Indiana (mem. dec.)

Morice Ervin v. State of Indiana (mem. dec.)

Posted by Marcia Oddi on July 22, 2016 11:24 AM
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Still more on: Institute for Justice files suit challenging Indy civil forfeiture system - suit will move forward

Updating this ILB post from Feb. 10, 2016, and this follow-up from the next day, last evening the Institute for Justice send out a news release headed "Challenge to Policing for Profit in Indianapolis Will Move Forward: Marion County judge rejects city and state’s request to dismiss case." Here are some quotes:

Indianapolis—Earlier this week, Judge Thomas Carroll of the Marion County Superior Court rejected the government’s effort to dismiss a lawsuit challenging the power of police and prosecutors in Indianapolis to “police for profit.” The ruling brings the six Indianapolis-area plaintiffs one step closer to ending local law enforcement’s practice of seizing private property and keeping the proceeds for its own budget.

The Indiana Constitution states that “all forfeitures” must go to support the state’s schools, but that has not stopped police and prosecutors in Indianapolis from keeping 100 percent of civil forfeiture proceeds for themselves. This multi-million-dollar constitutional violation has been going on for years, fueling aggressive forfeiture practices in Indiana’s capital city.

In February, the plaintiffs—three Hoosier families, represented by the Institute for Justice—filed suit to put an end to this misuse of civil forfeiture. Following the case’s filing, Indianapolis and the State of Indiana moved to dismiss the case, arguing that neither the plaintiffs nor any other private citizen had the right to challenge their misuse of forfeiture money. In its July 19 ruling, the court rejected those motions, meaning that the lawsuit will move forward.

Here is the group's website. It includes a link to the 26-page complaint.

This week's ruling by Judge Carroll has not yet been posted.

Posted by Marcia Oddi on July 22, 2016 07:08 AM
Posted to Ind. Trial Ct. Decisions

Thursday, July 21, 2016

Ind. Courts - Courtroom 216 at Birch Bayh Federal Building and U.S. Courthouse Named in Honor of Judge Sarah Evans Barker

From a news release from the U.S. District Court, Southern District of Indiana today:

INDIANAPOLIS, Indiana (July 21, 2016): On July 14, 2016, in recognition of District Judge Sarah Evans Barker’s more than 32 years of devoted service to the United States District Court for the Southern District of Indiana and the wider community, Chief Judge Richard L. Young announced that Courtroom 216 at the Birch Bayh Federal Building and United States Courthouse has been named in Judge Barker’s honor.

President Ronald Reagan, with the support of then-United States Senators from Indiana Richard G. Lugar and Dan Quayle, appointed Judge Barker to the bench on March 14, 1984. She was the first woman appointed to the federal court in Indiana, filling the vacancy created by the death of Cale J. Holder. Judge Barker assumed senior status on June 30, 2014, but has maintained a full caseload while awaiting the confirmation of her successor. * * *

Chief Judge Richard L. Young remarked on behalf of the Court, “Judge Barker has served the citizens of the Southern District of Indiana with great distinction over the course of her entire legal career. She epitomizes all of the best qualities of a judge: fair, impartial, patient, and well-reasoned. I can think of no better way to honor her legacy than to name the courtroom she has presided in since she joined the court 32 years ago after her. All those who enter the Sarah Evans Baker Courtroom in the years to come will reflect on the many contributions Judge Barker has made to the bench, the bar, and the wider community.”

An event celebrating the naming of Judge Barker’s courtroom will be held in the fall, at which time a plaque will be placed inside the courtroom, along with two smaller plaques at the courtroom entrances.

Posted by Marcia Oddi on July 21, 2016 01:55 PM
Posted to Indiana Courts

Ind. Decisions - Supreme Court decides dispute re teachers' collective bargaining

In Jay Classroom Teachers Association v. Jay School Corporation and Indiana Education Employment Relations Board, a 12-page, 4-1 opinion, Chief Justice Rush writes:

In 2011, our Legislature made significant amendments to statutes addressing collective bargaining for teachers and their employers. Pursuant to these amendments, when the parties fail to reach a collective bargaining agreement (“CBA”) regarding salaries, wages, and related fringe benefits, the Indiana Education Employment Relations Board (“IEERB”) appoints a mediator. If mediation also fails to produce a CBA, the parties must exchange their last best offers (“LBOs”). The IEERB then appoints a factfinder, who considers certain statutory factors—such as whether an LBO will cause the school corporation to engage in deficit financing—and accordingly selects which side’s LBO to adopt as the CBA for that year. The adopted LBO may not include a provision that conflicts with state or federal law, and a party may appeal the factfinder’s decision to the IEERB.

Here, a teachers association appealed a factfinder’s decision to adopt the school’s LBO. The IEERB affirmed the factfinder, approving a contract provision allowing a superintendent to place teachers hired mid-school-year on any line of an established, bargained-for salary scale. In so doing, the IEERB rejected the teachers association’s claim that the salary flexibility provision unlawfully gave the superintendent unilateral and unfettered discretion over late-hires’ salaries, thereby conflicting with the association’s statutory right to bargain collectively to establish salaries. Given the deferential standard of review afforded to agency action, we conclude the IEERB’s affirmance was lawful. We find that the adopted LBO, including the salary flexibility provision, was, in fact, collectively bargained and that important checks limited the superintendent’s discretion. * * *

The Court of Appeals
agreed with the Association and reversed the trial court, holding the salary flexibility provision “unambiguously, impermissibly conflicts with the Association’s statutory right to collectively bargain to establish salaries.” Id. The School and the IEERB sought transfer, which we granted, thereby vacating the Court of Appeals opinion. Ind. Appellate Rule 58(A). * * *

We hold the Association failed to meet its burden under the AOPA, as it did not show that the IEERB’s decision adopting the School’s LBO was invalid. Rather, we defer to the IEERB’s conclusion that the salary flexibility provision was not unlawful, noting both that the provision in question was collectively bargained and that important checks limited the superintendent’s discretion in establishing late-hires’ salaries. Consequently, we affirm the trial court.

David, Massa, and Slaughter, JJ., concur.
Rucker, J., dissents with separate opinion. [that reads in full] I respectfully dissent. Indiana Code section 20-29-4-1 provides in relevant part: “School employees may . . . participate in collective bargaining with school employers through representatives of their own choosing . . . to establish, maintain, or improve salaries, wages, salary and wage related fringe benefits . . . .” And Indiana Code section 20-29-6-2(a)(2) provides in relevant part: “Any contract may not include provisions that conflict with . . . school employee rights set forth in IC 20-29-4-1 . . . .” As the Court of Appeals points out the LBO provision authorizing the Superintendent to determine unilaterally the salary of teachers hired after the school year begins “unambiguously, impermissibly conflicts with the Association’s statutory right to collectively bargain to establish salaries under Section 20-29-4-1 and thus violates Section 20-29-6-2(a)(2).” Jay Classroom Teachers Ass’n v. Jay Sch. Corp., 45 N.E.3d 1217, 1226-27 (Ind. Ct. App. 2015). I agree and would thus join my Court of Appeals colleagues in reversing the judgment of the trial court.

Posted by Marcia Oddi on July 21, 2016 01:12 PM
Posted to Ind. Sup.Ct. Decisions

Environment - "Drowning reports show Lake Michigan is the deadliest Great Lake"

This lengthy, informative story, reported by Marwa Eltagouri, appeared July 16th in the Chicago Tribune. A few quotes:

While all the Great Lakes can be dangerous, metrics point to Lake Michigan being the deadliest — it has had nearly as many drownings and water rescues as the four other Great Lakes combined since 2010. * * *

Experts said the distinctive shape of the lake, which is 307 miles long with parallel, uninterrupted shores running north to south, makes it susceptible to dangerous currents. Lake Michigan is also the Great Lake with the sandiest shores, drawing more visitors and creating tides along sandbars that are deceptively strong and prone to risky currents.

"People go out there, unaware of the risk. Then those waves come and beat you up. They're relentless, and that's something that's radically different from what the ocean has," said Mark Breederland, an educator with the Michigan Sea Grant Extension. "Oceans have long, periodic waves. Our waves are every three seconds. Here comes another one and another one and another one."

There is much more information in this valuable story.

Posted by Marcia Oddi on July 21, 2016 11:50 AM
Posted to Environment

Ind. Decisions - Supreme Court disbars Goshen attorney, the second attorney disbarred this week

In In the Matter of: Joseph C. Lehman, a 3-page, 5-0, per curiam attorney disciplinary action, the Court writes:

We find that Respondent, Joseph Lehman, engaged in conduct in contempt of this Court by repeatedly engaging in the practice of law while suspended. For his contempt, we conclude that Respondent should be disbarred. * * *

Respondent’s repeated contemptuous acts over the years have resulted in fines, imprisonment, and the suspension of his law license. None of the sanctions previously imposed has deterred Respondent from continuing to engage in the practice of law in defiance of his suspension order, and Respondent’s repeated violations of that order have exposed the public to the danger of misconduct by an attorney who has yet to prove his remorse, rehabilitation, and fitness to practice law through the reinstatement process. Under these circumstances, the Court concludes that disbarment is warranted.

Posted by Marcia Oddi on July 21, 2016 11:04 AM
Posted to Ind. Sup.Ct. Decisions

Ind. Decisions - Court of Appeals issues 4 opinion(s) today (and 6 NFP memorandum decision(s))

For publication opinions today (4):

In Manee Edler v. Regions Bank, and Jenner Properties, LLC, an 11-page opinion, Judge Barnes writes:

Manee Edler appeals the denial of her motion to correct error, which sought to set aside the payment of mortgage foreclosure surplus proceeds to Regions Bank (“Regions”). We reverse and remand.

The sole issue we address is whether the trial court’s disbursement of the foreclosure sheriffs’ sale surplus proceeds complied with applicable statutes. * * *

The trial court misinterpreted or misapplied the law regarding disbursement of surplus sale proceeds following a sheriff’s foreclosure sale. As such, it abused its discretion in denying the Edlers’ motion to correct error. We reverse the denial of that motion and remand with instructions that the surplus sale proceeds be disbursed to Manee.

In Maureen Maynard, as Personal Representative of the Estate of Frank Cavazos v. Golden Living in its own capacity and d/b/a Golden Living Center-Sycamore, et al., and Anonymous M.D., et al., a 14-page opinion, Judge Mathias writes:
Maureen Maynard (“Maynard”) as personal representative of the Estate of Frank Cavazos (“Cavazos”) filed a complaint in Howard Superior Court alleging negligence and breach of contract by GGNSC Kokomo LLC d/b/a Golden LivingCenter-Sycamore Village and Hendricks Regional Health d/b/a Golden LivingCenter-Sycamore Village (“Golden Living”). Golden Living filed a motion to dismiss, demand for arbitration, and motion to compel arbitration, which the trial court later granted after a hearing on the matter was held. Maynard now brings this interlocutory appeal and argues that the trial court erred in granting Golden Living’s motion to dismiss, demand for arbitration, and motion to compel arbitration. We affirm.
In William Hunter v. State of Indiana , an 8-page opinion, Judge Bailey writes:
In light of the nature of his offense and his character, we cannot conclude that Hunter’s statutory maximum sentence, with five years to be served on in-home detention, is inappropriate.

“Recommendation of Plea”

We write additionally, sua sponte, to note an unusual and concerning facet of this case. The trial court here was presented with a document captioned as a “Recommendation of Plea” and signed by counsel for both parties and by Hunter himself. The trial court apparently viewed the Recommendation of Plea as something other than a plea agreement, and thus believed it lacked any discretion over whether to accept or reject Hunter’s plea and the State’s dismissal of the remaining charges in exchange for the plea. * * *

The Recommendation of Plea document set forth a quid pro quo arrangement whereby Hunter agreed to enter a guilty plea on one charge, with the State agreeing to dismiss other charges “in exchange therefor.” (App’x at 62.) The document went on to recite—as would a plea agreement—the various representations and waivers ordinarily present in a plea agreement. This included the following text: “I understand that the Court is not bound by this Recommendation of Plea.” (App’x at 62.)

“James Whitcomb Riley (1849-1916), our celebrated ‘Hoosier Poet,’ is widely credited with the origination of the Duck Test; as he expressed it, ‘[w]hen I see a bird that walks like a duck and swims like a duck and quacks like a duck, I call that bird a duck.’” Walczak v. Labor Works-Ft. Wayne, LLC, 983 N.E.2d 1146, 1148 (Ind. 2013). This Recommendation of Plea is a duck—or, caption aside, a plea agreement. Trial courts have discretion to accept or reject plea agreements. [cites omitted] Generally, the substance of a pleading or motion governs over its form. [cites omitted] The trial court would, then, have been able to exercise its discretion to decide whether to accept or reject the plea agreement.

In Mikel An Krueger v. State of Indiana , a 7-page opinion, Judge Barnes concludes:
We acknowledge that there were differing expert opinions presented here and that some witness testimony conflicted with other witness testimony. However, resolving those conflicts was the jury’s responsibility. On appeal, we cannot reweigh the evidence or judge the credibility of the witnesses. Bailey, 907 N.E.2d at 1005. We conclude that the State presented sufficient evidence to show that Krueger knowingly or intentionally placed A.G. in a situation that endangered his life or health and resulted in serious bodily injury.

Conclusion. The evidence is sufficient to sustain Krueger’s conviction for Class B felony neglect of a dependent. We affirm.

NFP civil decisions today (1):

B.L. v. J.S. (mem. dec.)

NFP criminal decisions today (5):

Michael C. Stollings v. The State of Indiana (mem. dec.)

Clarence Stout a/k/a Larry Cornell v. State of Indiana (mem. dec.)

Jacoby Sanders v. State of Indiana (mem. dec.)

George Dixon v. State of Indiana (mem. dec.)

Jeremy Michael Neloff v. State of Indiana (mem. dec.)

Posted by Marcia Oddi on July 21, 2016 10:59 AM
Posted to Ind. App.Ct. Decisions

Courts - "Courts grapple with jurors' social media privacy"

Sudhin Thanawala of the AP has a good article surveying varying positions on the practice of attorneys "mining prospective jurors' Facebook, Twitter and other social media accounts." A few quotes from the lengthy story [here is another link to the same story]:

The American Bar Association has said the searches are ethical, and a ruling by the Missouri Supreme Court bolstered arguments that attorneys have a duty to do online research of prospective jurors. Still, some judges have deemed the online searches invasive and banned them.

Now, a federal judge's ruling in a copyright battle between Silicon Valley heavyweights Oracle and Google has reignited debate about the practice while also offering a potential middle ground.

U.S. District Judge William Alsup, raising concerns about prospective jurors' privacy, said attorneys could research the jury panel but would have to inform it in advance of the scope of the online sleuthing and give the potential jurors a chance to change online privacy settings.

Otherwise, they had to agree to forego the searches.

Alsup said prospective jurors are not "celebrities or public figures ... but good citizens commuting from all over our district, willing to serve our country."

This article by Eriq Gardner in the March 28th Hollywood Reporter includes a copy of the March 25, 2016 opinion in Oracle v. Google.

Posted by Marcia Oddi on July 21, 2016 10:08 AM
Posted to Courts in general

Ind. Gov't. - The Right to Hunt and Fish Amendment will be on the November Ballot

As the ILB posted on April 16, 2015:

Ind. Gov't. - "Hoosiers to decide whether 'right to hunt' belongs in Constitution"

The headline pretty much says it all; SJR 2 has now been passed by two General Assemblys and will go on the statewide ballot at the November [2016] general election. Here is Dan Carden's story in the NWI Times. It includes the language of the proposed constitutional amendment.

The NRA's Institute for Legislative Action has now begun a campaign urging Indiana voters to ratify this proposed amendment to the Indiana Constitution when they vote this Novemeber.

Posted by Marcia Oddi on July 21, 2016 09:39 AM
Posted to Indiana Government

Ind. Decisions - 7th Circuit decided one Indiana case yesterday, disqualifying the district court judge

In Robertson Fowler, III v. Keith Butts (SD Ind., Magnus-Stinson), a 12-page opinion, Judge Easterbrook writes [ILB emphasis]:

Robertson Fowler pleaded guilty in Indiana to unlawful possession of a firearm by a “serious violent felon” who was also a habitual offender. The judge sentenced him to 30 years’ imprisonment: 15 for the possession offense and 15 extra on account of his criminal history.

While his case was on appeal, the Supreme Court of Indiana held that a prior conviction used to establish status as a “serious violent felon” cannot also be used to establish status as a habitual offender. Mills v. State, 868 N.E.2d 446 (Ind. 2007). Fowler’s appellate lawyer did not bring Mills to the attention of the intermediate appellate court, which affirmed his sentence. Fowler v. State, 2007 Ind. App. LEXIS 2015 (Aug. 31, 2007). On collateral review the same court held that it would not have done any good to rely on Mills, because Fowler’s plea bargain waived reliance on the approach that Mills adopted. Fowler v. State, 977 N.E.2d 464 (Ind. App. 2012). Fowler then filed a federal collateral attack under 28 U.S.C. §2254, contending that he had received ineffective assistance of counsel in his initial appeal. The district court denied this petition, relying on the state judiciary’s conclusion that Fowler had waived the benefit of Mills, and that given the waiver Fowler did not suffer any prejudice from counsel’s omission. 2015 U.S. Dist. LEXIS 6419 (S.D. Ind. Jan. 21, 2015). Fowler contends in this court that the state’s 2012 appellate decision was wrong: that he had not waived the benefit of the Mills theory, and that a careful lawyer therefore would have relied on Mills in the initial appeal.

We do not address the substance of Fowler’s argument, because a procedural problem takes precedence. District Judge Magnus-Stinson, who denied Fowler’s federal collateral attack, also was the person who sentenced Fowler during her time on the state’s bench. We held in Weddington v. Zatecky, 721 F.3d 456, 461–63 (7th Cir. 2013), that reasonable observers would doubt the impartiality of a former state judge who is asked to assess the validity of her own decision after coming to the federal bench, and that 28 U.S.C. §455(a) therefore requires the case to be heard by a different federal judge. * * *

For the reasons given above and in Weddington, “all” is better than “none”: a federal judge al-ways is disqualified from hearing a collateral attack on a judgment he or she entered or affirmed as a state judge. Judge Magnus-Stinson should have turned this proceeding over to a different judge. Indiana maintains, however, that Fowler forfeited his opportunity to have the case heard by someone else, because he did not ask this court to issue a writ of mandamus that would have prevented Judge Magnus-Stinson from deciding the case. * * *

The Supreme Court has allowed litigants to seek disqualification despite the absence of a protest in the court where the disqualified judge sat. See Nguyen v. United States, 539 U.S. 69 (2003). Both Nguyen and the recent Williams v. Pennsylvania, 136 S. Ct. 1899 (2016), treat the participation of a disqualified judge as a form of structural error, which may be noticed at any time. In both Nguyen and Williams the disqualified judge participated in an appellate court that decid-ed the case unanimously. The Supreme Court reversed both judgments even though both cases likely would have come out the same way with a different complement of judges.

It follows from this discussion that Ruzzano, Johnson, and any similar decisions in this circuit must be, and are now, overruled to the extent they forbid appellate review of judicial-disqualification issues in the absence of a motion in the district court.

Because this opinion overrules two lines of decisions in this circuit, it was circulated before release to all judges in active service. See Circuit Rule 40(e). None of the judges fa-vored a hearing en banc.

The judgment is vacated, and the case is remanded for decision by a different district judge.

Posted by Marcia Oddi on July 21, 2016 09:11 AM
Posted to Ind. (7th Cir.) Decisions

Wednesday, July 20, 2016

Ind. Courts - "DCS to Appeals Court: You Can't Make Us Hire More Caseworkers"

This morning a Court of Appeals panel (Judges Riley, Kirsch and Robb) heard oral argument in the case of Mary Price v. Indiana Department of Child Services.

49A05-1602-PL-00380 is the case docket, from which you may download the briefs, but not the trial court ruling. You may watch the archived video of the oral argument here.

Brandon Smith of Indiana Public Media attended the argument and posted this story this afternoon. Some quotes:

Indiana law says the Department of Child Services must provide enough caseworkers so that the average caseload doesn’t exceed 17 children.

All but one of the 19 regions in the state exceeds that standard. Caseworker Mary Price oversees 43 children.

The ACLU of Indiana sued DCS on Price’s behalf, trying to force the agency to hire more caseworkers. A trial court judge ruled that Price had no right to bring the suit and should use administrative channels.

In front of the Court of Appeals, attorney for DCS Frances Barrow, in an exchange with Appellate Judge Margret Robb, argued that even if Price can sue, DCS is already doing everything it can to meet the standards.

And Barrow says there’s nothing a court could further order them to do -- even as Judge Robb expressed skepticism:

“You’re saying it’s reasonable to ask them to do two-and-a-half to three times what the statute says they should be doing,” Robb asked Barrow.

“They are doing probably the most difficult job in state government,” Barrow responded.

But ACLU legal director Ken Falk says only the court system can provide a legitimate remedy.

“DCS’ failure to comply obviously hurts us all but it specifically injures the family case managers, whose caseloads are directly benefitted by the statute, if it would be complied with,” Falk says.

Reporter Smith also posted over a dozen informative tweets during the argument itself, which you may access at @brandonjsmith5.

Posted by Marcia Oddi on July 20, 2016 06:29 PM
Posted to Indiana Courts

Ind. Courts - Porter County Courthouse vandalized

Here is a photo from the story by Bob Kasarda in the NWI Times.

Posted by Marcia Oddi on July 20, 2016 03:10 PM
Posted to Indiana Courts

Ind. Gov't. - "Dunes pavilion alcohol plan moving forward"

Updating this ILB post from July 11th, here are some quotes from Dan Carden's NWI Times report yesterday:

INDIANAPOLIS — A state administrative rule change required for alcohol to be sold in a renovated pavilion at Indiana Dunes State Park has cleared its first hurdle.

The Indiana Natural Resources Commission unanimously gave preliminary approval Tuesday to the revised rule that permits alcohol in the pavilion, a potential adjacent banquet center and up to 100 feet into the parking lot. * * *

The pending rule change now goes to the governor's Office of Management and Budget for review of its financial impact on the state — a process likely to take two to six months.

Once evaluated by OMB, it will return to the Natural Resources Commission for a final public hearing prior to a vote on adoption.

Norman Hellmers, of Valparaiso, speaking on behalf of Dunes Action!, a group opposed to alcohol in the park, urged the committee to short-circuit that process by refusing to even preliminarily accept the rule.

He warned that alcohol at the Dunes will lead to a return of the bad old days where gangs ran rampant throughout the park.

"There are not masses of people saying we want this. People are saying we don't want this," Hellmers said. "10,000 people have signed petitions against alcohol and against the banquet center." * * *

The rule change process is separate from DNR obtaining Indiana Alcohol and Tobacco Commission approval for vendors to sell beer, wine and liquor in nine state parks, including Dunes.

John Davis, deputy DNR director, said the agency plans to apply for those permits in August or September.

A new state law mandates the ATC issue "state park" alcohol permits to DNR, upon request, and without being subject to local review or approval, after the Porter County Alcoholic Beverage Commission twice denied Pavilion Partners, the company renovating the Dunes pavilion, the alcohol sales permit it said is needed to run a successful operation.

Posted by Marcia Oddi on July 20, 2016 02:35 PM
Posted to Indiana Government

Ind. Courts - Mandatory pro bono for SD Ind. practitioners

Effective Sept. 1, 2016, Local Rule 87 - Representation of Indigent Litigants. This requirement to provide indigent litigants with pro bono legal services will allow the federal district court for the SD Ind. to recruit counsel to represent an indigent litigant "using the Voluntary Panel or the Obligatory Panel." More:

(1) Voluntary Panel. The Voluntary Panel consists of attorneys who have applied for membership and who are willing to volunteer to represent litigants who are unable to afford representation. Any attorney who is a member of this court’s bar may join the Voluntary Panel.

(2) Obligatory Panel. The Obligatory Panel consists of attorneys who are members of this court's bar and have appeared in a threshold number of civil cases in this district during the previous calendar year.

More:
The threshold number of appearances entered in 2015 to qualify for the 2016 Obligatory Panel is 10.

The threshold number of appearances to qualify for the Obligatory Panel in all subsequent calendar years is 5. This number may be adjusted by way of future General Order.

Posted by Marcia Oddi on July 20, 2016 01:55 PM
Posted to Ind Fed D.Ct. Decisions

Ind. Decisions - "Duffy is now deceased and so beyond our jurisdiction"

That is from Chief Judge Wood's July 19th opinion in LIGHTSPEED MEDIA CORP. v. ANTHONY SMITH, et al., out of the SD Ill., that begins:

When last we considered John Steele and Paul Hansmeier’s challenges to contempt sanctions imposed on them, we gave them some friendly advice: stop digging. See Lightspeed Media Corp. v. Smith, 761 F.3d 699 (7th Cir. 2 Nos. 15‐2440 & 15‐2682 2014) (Lightspeed I). Apparently they did not realize that we meant what we said. Hoping to avoid paying additional sanctions, they dissembled to the district court and engaged in discovery shenanigans. Anthony Smith, a defendant in the underlying litigation, found out what was going on and moved for yet more contempt and discovery sanctions against Steele, Hansmeier, and Paul Duffy. (We occasionally refer to them collectively as the Attorneys.) Although the district court initially denied his request, it granted Smith the requested sanctions on a motion for reconsideration. Duffy is now deceased and so beyond our jurisdiction. Hansmeier and Steele have appealed, arguing that the district court erred in (1) revisiting its initial ruling on Smith’s motion; (2) finding the Attorneys in contempt; and (3) sanctioning the attorneys for discovery misconduct. With regard to Steele, we affirm the district court’s discovery sanction and vacate its contempt sanction. We dismiss Hansmeier’s appeal.

Posted by Marcia Oddi on July 20, 2016 01:45 PM
Posted to Ind. (7th Cir.) Decisions

Ind. Decisions - Court of Appeals issues 2 opinion(s) today (and 4 NFP memorandum decision(s))

For publication opinions today (2):

In Barbara Hill, individually and as guardian of Charles Hill, incapacitated, and as next friend of Alexandra Hill, a minor, and Macey Hill, a minor, et al. v. Erich E. Gephart, et al., a 5-page opinion on rehearing, Judge Mathias concludes:

Therefore, Charles’s testimony creates a genuine issue of material fact as to whether he was contributorily negligent in walking on the right side of the road instead of the left side as Indiana Code section 9-21-17-14 requires. Again, it is Charles’s burden at trial to rebut the presumption that he was contributorily negligent and acted reasonably in violating the statute.

Because Investigator Senefeld’s declaration and photos were admissible and we relied on Charles’s testimony to conclude that a genuine issue of material fact existed as to his contributory negligence, we grant Appellee’s motion for rehearing for the limited purpose of clarification and affirm our May 6, 2016 opinion in all other respects.

Kirsch, J., concurs.
Brown, J., would grant rehearing for the purpose of affirming the trial court, in accordance with her dissent expressed in the May 6, 2016 opinion.

In Milbank Insurance Company v. Indiana Insurance Company, et al. , a 20-page opinion, Judge Robb writes:
Milbank Insurance Company filed a declaratory judgment action seeking to determine, as between its personal auto policy and Indiana Insurance Company’s business auto policy, which policy was primary and which insurer owed a duty to defend and indemnify Sydney Mireles in an underlying personal injury action against her. On summary judgment, the trial court determined the Milbank policy was primary. Milbank now appeals, raising several issues which we consolidate and restate as whether the trial court erred in determining the Milbank policy was primary. Concluding Milbank’s appeal is untimely, but that regardless, the trial court did not err, we affirm.
NFP civil decisions today (2):

In the Matter of the Termination of the Parent-Child Relationship of S.F., Father, and G.F. and S.S., Children, S.F. v. Indiana Department of Child Services (mem. dec.)

M. Jewell, LLC v. Ezeguiel Garcia and William Shoemaker (mem. dec.)

NFP criminal decisions today (2):

Isaac Perez v. State of Indiana (mem. dec.)

Larry W. Scroggins, Jr. v. State of Indiana (mem. dec.)

Posted by Marcia Oddi on July 20, 2016 01:15 PM
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Supreme Court disbars Timothy Durham

In In the Matter of: Timothy S. Durham, a 3-page, 5-0, per curiam attorney disciplinary action, the Court writes:

We find that Respondent, Timothy Durham, engaged in attorney misconduct. For this misconduct, we conclude that Respondent should be disbarred. * * *

In March 2011, Respondent was indicted in federal court on twelve felony counts rooted in a complex scheme of securities and wire fraud. Respondent was convicted on all counts following a jury trial in June 2012 and later was sentenced to fifty years in prison. * * *

Turning to the issue of appropriate discipline, we agree with the hearing officer’s assessment in this case that “Respondent’s fraudulent actions over an extended period of time . . . suggest a level of greed which knew no bounds and displayed a total lack of concern for the thousands of customers Respondent financially ruined.” (HO’s Report at 5). In Matter of Page,
8 N.E.3d 199 (Ind. 2014), we concluded that a suspension of at least two years without automatic reinstatement was appropriate discipline for an attorney convicted of a single count of aiding and abetting wire fraud, where the crime had not resulted in loss or injury and the attorney had not violated a position of trust.

In sharp contrast, Respondent’s convictions on ten felony counts involved an ongoing scheme of wire and securities fraud that spanned several years and caused over $200 million in losses to thousands of victims. We have consistently imposed disbarment where an attorney exhibits a pattern of conversion of client funds. See, e.g., Matter of Johnson, ___ N.E.3d ___, 2016 WL 2897399 (Ind. May 18, 2016); Matter of Antcliff, 693 N.E.2d 525 (Ind. 1988). We see no reason to reach a different result with respect to Respondent’s fraudulent looting of funds entrusted to him by investors.

The Court concludes that Respondent violated the Rules of Professional Conduct by defrauding thousands of investors of over $200 million. Respondent already is under an order of interim suspension in this case as well as a separate suspension order for nonpayment of dues. For Respondent’s professional misconduct, the Court disbars Respondent from the practice of law in this state, effective immediately.

Posted by Marcia Oddi on July 20, 2016 01:02 PM
Posted to Ind. Sup.Ct. Decisions

Tuesday, July 19, 2016

Ind. Law - IU-McKinney's Indiana Law Review Vol. 49 now available

And it looks like it contains a lot of good reading. Here is the TOC.

The lead article is on a topic, judicial notice in the age of the internet, that has been a focus of the ILB in a number of past posts (e.g. Dec. 8, 2015 on independent research by judges). From the intro to the article, which is authored by Indiana Court of Appeals Judge Robb and three of her clerks:

In an age when nearly every person carries a personal mini-computer at all times and thinks nothing of immediately running a search for any question that crosses her or his mind, the parameters of judicial notice are more important than ever before.23 This Article provides an overview of judicial notice as a doctrine, how Indiana appellate courts have handled judicial notice in the past, how that informs the taking of judicial notice currently, and how courts could consider the use of judicial notice in the future.
The volume contains a selection of tributes to now-retired 7th Circuit Judge John Tinder.

Taking up the bulk of the volume, as this is the annual survey of Indiana law issue, are numerous valuable articles on recent Indiana development in statutory and case law.

The final article is "Selected Developments in Indiana Criminal Sentencing and Death Penalty Law (1993-2012)," by Frank Sullivan, Jr.

Posted by Marcia Oddi on July 19, 2016 01:05 PM
Posted to Indiana Law

Courts - "Letting Prosecutors Write the Law: It’s more common than you think" [Updated]

That is the headline of this article by Andrew Cohen of The Marshall Project. (h/t @adamliptak) It begins:

After we published our “Case in Point” story of Doyle Lee Hamm, an Alabama death row inmate whose judge signed off on a vital 89-page opinion without apparently ever reading it, we received a wave of emails from defense attorneys. Representing clients in Georgia, Louisiana, Kentucky, South Carolina, and Ohio, they wanted us to know that this had happened to them, too, and that they believed from their long experience practicing in their jurisdictions that such “ghostwriting” was a routine part of capital practice in those states.

Ghostwriting occurs when prosecutors or state attorneys draft substantive opinions or orders that state judges then quickly sign, often without altering a single word or fixing typos, thus elevating to case law one side’s naturally biased view of the facts and the law of a case. The practice exists even though the Supreme Court has frowned on it and state bar officials have disciplined judges for it. It exists even though it undermines one of the more fundamental premises in our justice system; that judges will undertake an independent evaluation of contested issues in a case and not just take one side’s word for things. The result is that capital defendants remain on death row, or are executed, based on findings of fact and conclusions of law generated by the very people trying to execute them.

We are not talking about instances where a judge asks the attorneys in open court to help expedite the resolution of a case by drafting a brief order memorializing what the judge already has ruled. That type of bureaucratic “ghostwriting” is commonplace and makes the legal system more efficient.

[Updated at 2:00 pm] The ILB has received this note:
Marcia,

I saw your post concerning “ghostwriting” and appreciate you posting that. Our Supreme Court has addressed this issue in the PCR context. See Stevens v. State, 770 N.E.2d 739, 762 (Ind. 2002) (noting that “[w]hile near verbatim reproductions may appropriately justify cautious appellate scrutiny, we decline to hold that the post-conviction court’s utilization of the State’s proposed findings in the present case constituted a failure to provide the defendant with a full, fair and unbiased adjudication of his post-conviction claims.”), reh'g denied, cert. denied, 540 U.S. 830 (2003).

Sincerely,

Scott L. Barnhart, Partner
Keffer Barnhart LLP

ILB: See section 5(a), near the end of the above-cited case.

Posted by Marcia Oddi on July 19, 2016 11:06 AM
Posted to Courts in general

Ind. Decisions - Court of Appeals issues 0 opinion(s) today (and 1 NFP memorandum decision(s))

For publication opinions today (0):

NFP civil decisions today (0):

NFP criminal decisions today (1):

Jonathan Gibson v. State of Indiana (mem. dec.)

Posted by Marcia Oddi on July 19, 2016 09:55 AM
Posted to Ind. App.Ct. Decisions

Law - "Justice department 'uses aged computer system to frustrate Foia requests'"

That is the headline to an interesting story July 16th in The Guardian, reported by Sam Thielman. The story begins:

A new lawsuit alleges that the US Department of Justice (DoJ) intentionally conducts inadequate searches of its records using a decades-old computer system when queried by citizens looking for records that should be available to the public.

Freedom of Information Act (Foia) researcher Ryan Shapiro alleges “failure by design” in the DoJ’s protocols for responding to public requests. The Foia law states that agencies must “make reasonable efforts to search for the records in electronic form or format”.

In an effort to demonstrate that the DoJ does not comply with this provision, Shapiro requested records of his own requests and ran up against the same roadblocks that stymied his progress in previous inquiries. A judge ruled in January that the FBI had acted in a manner “fundamentally at odds with the statute”.

Now, armed with that ruling, Shapiro hopes to change policy across the entire department. Shapiro filed his suit on the 50th anniversary of Foia’s passage this month.

Posted by Marcia Oddi on July 19, 2016 09:36 AM
Posted to General Law Related

Ind. Gov't. - More on "ALEC to hold national meeting in Indianapolis"

Updating this brief ILB post from July 7th, about the upcoming 43rd annual meeting of the American Legislative Exchange Council (ALEC) in Indianapolis on July 27 to 29, the group has now announced that Vice Presidential Candidate Mike Pence will speak at the annual meeting. Here is the complete agenda.

Here is a long list of other ILB posts on ALEC.

Posted by Marcia Oddi on July 19, 2016 09:23 AM
Posted to Indiana Government

Ind. Gov't. - Newspaper denied access to surveillance video from school gym cameras

Here is a new informal opinion issued by the Indiana Public Access Counselor, 16-INF-21: Complaint against the Northeast Dubois School Corporation. (It is apparently erroneously dated July 21, 2016.) The informal inquiry was filed by the Dubois County Herald. Some quotes from the PAC response:

This is in response to your informal inquiry regarding whether the Northeast Dubois School Corporation (“Corporation”) violated the Access to Public Records Act. As of the writing of this opinion, the Corporation has not responded to your inquiry, despite an invitation by this office to do so. * * *

BACKGROUND You seek a determination as to whether the Corporation violated the APRA. On April 19, 2016 a complaint was made to the Corporation regarding a coach at Dubois Middle School. The Coach allegedly threw volleyballs at a student during practice. You sought a copy of the surveillance video from gym cameras (as did the mother of the student) and were told by the school corporation attorney the records were considered educational records deemed confidential under FERPA (Family Educational Rights and Privacy Act). * * *

[T]he U.S. Department of Education has some limited issued guidance regarding surveillance videos * * *

According to this unofficial guidance, the mother of the students would have standing to request the video and share with the Herald at her discretion. It does not appear as if the DOE would consider the Herald have the same standing. If they are not educational records, however, neither FERPA nor Indiana Code § 20-33-7-1 would apply. Given this unofficial guidance was subsequent to the PAC opinion in 2006, this Office’s position is general surveillance videos are not germane to a student’s performance and are not intended to be considered educational videos. (See also Formal Opinion of the Public Access Counselor 14-FC-272).

While Indiana Courts have not ruled on the matter, other states have found that surveillance videos are not educational in nature and are public record (Rome City School Dist. v. Grifasi, 806 N.Y.S.2d 381 (N.Y. Sup. Ct. 2005) (Video surveillance tape not an education record under FERPA, and therefore subject to disclosure); Lindeyan v. Kelso School Dist., 172 P.3d 329 (Wash. 2007) (Video subject to disclosure under state law).

Posted by Marcia Oddi on July 19, 2016 09:01 AM
Posted to Indiana Government

Ind. Decisions - Possessing parlay cards not against the law, trial court rules

Stan Maddux of the NWI Times reports today:

MICHIGAN CITY — Charges have been dropped against four members of an alleged Michigan City sports betting ring.

In his July 11 decision, LaPorte Superior Court 1 Judge Michael Bergerson ruled it's not against the law to have parlay cards and there were no specific allegations in the case they were being used specifically for gambling or any other crime.

Prosecutors were given permission to amend the charging information to reflect criminal violations were occurring, but failed to meet a June deadline imposed by the judge for doing so, Bergerson said. * * *

According to court documents, the investigation into illegal sports wagering on professional and college football games headed up by the Indiana Gaming Commission began in 2010 and was revived in 2013 when information developed about "bookies" in the Michigan City area.

It was alleged Biela printed the parlay cards listing the upcoming games for the week and the odds of those match ups.

According to authorities, the cards were picked up from Biela by four men and distributed to bars and restaurants for customers to place bets.

The men returned the following week to give out more cards and to collect the payouts, authorities said.

In his ruling, Bergerson said the defendants were charged with either printing or possessing parlay cards, but neither is a crime since Indiana law doesn't consider parlay cards a gambling device.

Posted by Marcia Oddi on July 19, 2016 08:48 AM
Posted to Ind. Trial Ct. Decisions

Monday, July 18, 2016

Ind. Decisions - Transfer list for week ending July 15, 2016

Here is the Clerk's transfer list for the week ending Friday, July 15, 2016. It is two pages (and 24 cases) long.

One transfer were granted last week:

  • Victor S. Roar v. State of Indiana - Transfer was granted, with opinion, on July 12th. See ILB summary here.
In addition, there were two cases last week where transfer was denied by a 3-2 vote:
  • Toddrick Ogburn v. State of Indiana - this is a 4/18/16 COA decision, where the COA reversed, holding "trial court abused its discretion by admitting evidence obtained in violation of the Fourth Amendment." Transfer Denied - All Justices concur, except Rush, C.J., and David, J., who vote to grant the petition to transfer.

  • Commitment of T.M. - this was a 3/15/16 NFP COA decision. Transfer denied - All Justices concur, except Rush, C.J., and Rucker, J., who vote to grant the petition to transfer.

Posted by Marcia Oddi on July 18, 2016 01:15 PM
Posted to Indiana Transfer Lists

Ind. Courts - Four Court of Appeals judges are up for retention in November

The filing deadline was July 15th and all four of the Court of Appeals judges who are up for retention this year have filed to stand for another 10-year term. Indiana Courts has now sent out this release:

Four Court of Appeals judges are up for retention on Election Day in November. Voters will decide “yes” or “no” on whether to retain each appellate judge. A website has been designed by the Supreme Court’s Office of Judicial Administration as a way for voters to make informed decisions about the judges on the ballot. The website can be found at courts.in.gov/retention.

Here are the appellate judges on the retention ballot in 2016:

  • Judge Terry A. Crone, Court of Appeals of Indiana – Third District

  • Judge James S. Kirsch, Court of Appeals of Indiana – Second District

  • Judge Edward W. Najam, Jr., Court of Appeals of Indiana – First District

  • Judge Patricia A. Riley, Court of Appeals of Indiana – Fourth District
The website includes biographical information, video of oral arguments, and the ability to search decisions written or voted on by the judges. Later this year, the Indiana State Bar Association will release evaluations of each of the judges from a survey of its members. The results will be available on the retention website.

Indiana has used a merit selection process to choose and retain its appellate judges for the past 44 years. Once appointed, a judge must stand for retention at the first statewide general election after the judge has served for two full years. If retained, the judge is on the retention ballot every 10 years. The retention system is designed to allow appellate judges to decide cases fairly and impartially, free from campaign finance considerations, and without influence by partisan politics.

Posted by Marcia Oddi on July 18, 2016 11:45 AM
Posted to Indiana Courts

Ind. Decisions - Supreme Court imposes sanctions on Louisville attorney

In In the Matter of: Michael L. James, a 2-page "Published Order Finding Respondent in Contempt of Court and Imposing Sanctions," the Court writes in part:

Moreover, the case records before us reflect that Respondent’s suspended status was called to his attention by the judge in a Hendricks County case in August 2013. Even assuming Respondent had believed up until that point that he had been reinstated in Indiana, he was put clearly on notice in August 2013 that he remained in suspended status, and indeed he acknowledged in a notice filed with the court the need to “either resolve the licensure issue or secure substitute counsel.” Yet, several of the remaining cases referenced in the Commission’s verified petition involve actions by Respondent unquestionably constituting the practice of law that occurred later in 2013, in 2014, and even as late as September 2015. Accordingly, we find that Respondent has violated this Court’s orders suspending him from the practice of law in Indiana and that he is guilty of indirect contempt of this Court.

The sanctions this Court may impose for contempt include ordering a fine, disgorgement of ill-gotten gains, imprisonment, and extension of an attorney’s suspension or removal from practice. See Matter of Haigh, 7 N.E.3d 980, 990 (Ind. 2014); Matter of Freeman, 999 N.E.2d 844, 846 (Ind. 2013); Matter of Nehrig, 973 N.E.2d 567, 569 (Ind. 2012).

The Court ORDERS that Respondent be fined the sum of $1,000. Respondent shall remit this amount within 60 days of the date of this order to the Clerk of the Indiana Supreme Court, Court of Appeals, and Tax Court.

For his pattern of contempt, the Court also ORDERS that Respondent’s current reciprocal suspensions are converted to a suspension of at least two years without automatic reinstatement, effective immediately.

Posted by Marcia Oddi on July 18, 2016 11:12 AM
Posted to Ind. Sup.Ct. Decisions

Ind. Decisions - Tax Court posts one ruling today, filed Friday

In Fresenius USA Marketing, Inc. v. Indiana Department of State Revenue, a 9-page opinion filed July 15th, Judge Wentworth writes:

Fresenius USA Marketing, Inc. has appealed the Indiana Department of State Revenue’s denial of its claim for refund of gross retail (sales) tax remitted on its sales of durable medical equipment and supplies to Indiana clinics between January 1, 2004, and October 31, 2007 (the Period at Issue). The matter, currently before the Court on the parties’ cross-motions for summary judgment, presents one dispositive issue: whether the Department is bound by its published ruling interpreting the exemption provided by Indiana Code § 6-2.5-5-18(a). * * *

The Department argues first that it is bound by Indiana Code § 6-8.1-3-3(b) only when it interprets a statute by promulgating a regulation. (See Hr’g Tr. at 57-63.) Accordingly, the Department maintains that because the 1998 Ruling is not a regulation, it is not bound to follow it. The Court is not persuaded by the Department’s argument for two reasons. * * *

Next, the Department claims that Fresenius cannot rely on its interpretation of the Durable Medical Equipment Exemption in its 1998 Ruling because regulation 45 IAC 15-3-2(d)(3) states that “‘only the taxpayer to whom the ruling was issued is entitled to rely on it.’” (See Resp’t Reply Br. at 7 (citation omitted).) The Department’s argument fails, however, for three reasons. * * *

Finally, the Department claims that its own regulation indicates that the taxpayer to whom a ruling is issued is alone entitled to rely on it. (See Resp’t Reply Br. at 7 (citing 45 I.A.C. 15-3-2(d)(3)).) The Department’s claim, however, relies on only one isolated portion of its regulation, ignoring the remainder of the provision that expressly permits other taxpayers than the taxpayer to whom the ruling was issued to rely on its rulings * * *

Even though the 1998 Ruling was not issued to Fresenius, it was entitled to rely on it because it demonstrated factual similarity. Because it did not rebut Fresenius’s showing of similarity, the Department is bound by its interpretation in its 1998 Ruling. Consequently, while the Department is not entitled to summary judgment on this basis, Fresenius is.

Posted by Marcia Oddi on July 18, 2016 11:02 AM
Posted to Ind. Tax Ct. Decisions

Ind. Decisions - Court of Appeals issues 0 opinion(s) today (and 4 NFP memorandum decision(s))

For publication opinions today (0):

NFP civil decisions today (2):

Pinnacle Properties Development Group, LLC v. Sarah Oliver (mem. dec.)

In the Termination of the Parent-Child Relationship of Ja.V. (Minor Child) and J.V. (Father) v. The Ind. Dept. of Child Services (mem. dec.)

NFP criminal decisions today (2):

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

Vino Mason v. State of Indiana (mem. dec.)

Posted by Marcia Oddi on July 18, 2016 10:59 AM
Posted to Ind. App.Ct. Decisions

Ind. Gov't. - "Indiana can fix gerrymandering"

Adding to earlier ILB posts on redistricting, Julia Vaughn of Common Cause and Debbie Asberry of League of Women Voters of Indiana had a long letter in the Sunday issue of the Indianapolis Star. A few quotes:

This year, the General Assembly districts our legislature drew for themselves will deprive voters of choices at the ballot box. Voters in 46 percent of state legislative districts will see only one major party candidate on the ballot because no candidate from the other party decided that it was even worth trying to win. Election Day is still four months away and the results in almost half of our state legislative races have already been decided.

Gerrymandering has troubling consequences for Indiana’s democracy and economy. Last year, the legislature passed the so-called “Religious Freedom Restoration Act,” which allowed greater discrimination against members of the LGBT community. The reaction in Indiana and around the country was immediate and embarrassing. Thanks to the actions of extremist legislators representing districts designed to be uncompetitive, Indiana appeared to be the national capital of intolerance and bigotry. Businesses have threatened to pull conferences and major sporting events out of the state while demanding a legislative fix that would prohibit discrimination. In response, legislators have done nothing. Good jobs in addition to millions of dollars in business and tourism revenue remain at risk because the General Assembly has no political incentive to fix their costly mistake.

Indiana can do better. Other states have devised solutions that take power away from the politicians and give it back to the people. Across the nation, Americans standing up for fair representation now have the wind at their backs. In Indiana, we have a major opportunity for reform through the Special Interim Committee on Redistricting, which is a group of legislators and citizens currently working to write a reform proposal for introduction during the 2017 legislative session.

Posted by Marcia Oddi on July 18, 2016 10:32 AM
Posted to Indiana Government

Courts - "SCOTUS Citation Raises Concerns Over Potential 'Link Rot' " - this is incorrect

Technologist has a July 15th story by Jonathan R. Tung which reports:

The recent SCOTUS decision of Utah v. Strieff was notable in at least two ways. First it was noteworthy because of Justice Sotomayor's almost Scalia-esque (in terms of passion, if not form) dissent. Some have called it the Court's "Black Lives Matter" moment.

But the Strieff opinion is also noteworthy because it may be the first time in the Court's history in which a URL-link "shortener" was used in place of the real address. Justice Kagan's separate dissent included a citation to http://goo.gl/3Yq3Nd, and that leaves some worried. * * *

The fact that a shortened link just became part of official record of the Supreme Court has some concerned. Google controls the link and Google is a private party. So what happens if Google decides to change a link? Or worse, to get rid of it altogether?

The ILB in the past has had a number of posts about link rot. However, as the latter part of this Oct. 14, 2015 post (quoting Adam Liptak) reported, the SCOTUS has addressed the problem. It now downloads all external documents linked in its opinions and saves them at a dedicated page.

Here is the SCOTUS page
for the 2015 term. The last case listed is Utah v. Strieff. All external cites contained in the opinion are listed, including, at the end of the list, goo.gl/3Yq3Nd, the shortened link. But the SCOTUS has downloaded and saved the linked document for posterity, explaining: "Because some URLs cited in the Court's opinions may change over time or disappear altogether, an attempt is made to capture, as closely as possible, the material cited in an opinion at the time of its release."

Posted by Marcia Oddi on July 18, 2016 10:09 AM
Posted to Courts in general

Environment - "Agricultural weed killer products found in groundwater"; Wis. manure spreading rules

A long story in the July 14th Muncie Star-Press, reported by Seth Slabaugh, begins:

MUNCIE — Agricultural weed-killer breakdown products were found in 68 of 398 groundwater samples collected from private residential water wells and small public water supply wells statewide, the Indiana Department of Environmental Management (IDEM) has announced.

About 1.6 million Hoosiers, or 26 percent of the population, obtain their water from private, domestic wells, which are not required to be tested on a regular basis for quality.

The herbicide degradation products (degradates) were detected in one of the four wells sampled in Delaware County and in one of the eight wells sampled in Henry County.

The state's annual groundwater monitoring program also found detectable levels of nitrates in two of the nine wells sampled in Wayne County, though they were not above the federal government's maximum contaminant level for drinking water.

The major sources of nitrates in drinking water are runoff from fertilizer use, leaking septic tanks and erosion of natural deposits.

It was degradates of acetochlor and alachlor — herbicides commonly used in Indiana to control broadleaf and grassy weeds in corn and soybeans — that were found in Delaware and Henry county wells. No maximum contaminant levels in drinking water have been established for herbicide degradates.

From Wisconsin, the Milwaukee Journal-Sentinel reported on July 15th in a story that begins:
Under pressure from citizens and environmental groups, state officials took a step this week in advancing regulations that would impose stricter controls on manure spreading on Wisconsin's most vulnerable soils.

The Department of Natural Resources released plans for new rules to limit manure use in certain zones where animal waste poses a greater chance of polluting streams and groundwater.

Currently, Wisconsin has uniform standards for manure spreading, but if the changes are made, farmers in some regions would be required to limit their spreading more.

"This is the first time that we would have different practices for specific areas," said Russ Rasmussen, who is leading DNR efforts on manure issues.

Posted by Marcia Oddi on July 18, 2016 08:16 AM
Posted to Environment

Ind. Decisions - Upcoming oral arguments this week and next

This week's oral arguments before the Supreme Court (week of 7/18/16):

  • No oral arguments currently scheduled.

Next week's oral arguments before the Supreme Court (week of 7/25/16):

  • No oral arguments currently scheduled.
Webcasts of Supreme Court oral arguments are available here.


Next week's oral arguments before the Court of Appeals (week of 7/18/16):

Wednesday, July 20
  • 10:00 AM - Mary Price v. Indiana Department of Child Services (49A05-1602-PL-00380) Under Indiana law, the Indiana Department of Child Services (IDCS) is tasked with the responsibility of providing various services to protect children and to strengthen families. Indiana Code section 31-25-2-5 requires that in order to provide these essential services, IDCS “shall ensure” that the caseloads for family case managers not exceed specific, statutorily mandated levels. Appellant, Mary Price, a family case manager employed by IDCS, brings this action, on her own behalf and on behalf of a putative class of similarly situated family case managers, to force IDCS to comply with the explicit caseload levels comprised in the statute. Upon IDCS’s motion to dismiss, the trial court dismissed Price’s action. Price appeals, requesting this court to review whether the trial court erred in dismissing this case for failing to state a claim for relief, when ? 1. Price has established a private cause of action to enforce the statute mandating specific caseload levels; and 2. Alternatively, if no private cause of action exists, Price’s complaint states a claim for relief as an action for mandate pursuant to Indiana Code section 31-25-2-5. The Scheduled Panel Members are: Judges Riley, Kirsch and Robb. [Where: Indiana Supreme Court Courtroom (WEBCAST)]

Next week's oral arguments before the Court of Appeals (week of 7/25/16):

Monday, July 25

  • 1:00 PM - Sauntio Antonio Carter v. State of Indiana (49A04-1511-CR-01823) Appellant-Defendant, Sauntio Carter (Carter), appeals his conviction for battery resulting in bodily injury, a Class A misdemeanor. Carter's conviction stems from an incident in which he punished his fourteen-year-old daughter by hitting her with his belt at least fourteen times. On appeal, Carter claims that there is insufficient evidence to uphold his conviction because he lacked the requisite criminal intent. Rather, he maintains that he used reasonable force to discipline his child for her unacceptable behavior. Carter further claims that the State failed to sufficiently rebut his affirmative defense of parental privilege. The Scheduled Panel Members are: Judges Riley, Crone and Sr. Judge Shepard. [Where: Supreme Court courtroom (WEBCAST)]
Tuesday, July 26
  • 1:00 PM - Maintenance Dynamics, Inc., et al. v. Patricia Amsden (45A05-1504-CT-00171) Defendant Bar appeals judgment on a jury verdict for $7,500,00 I a dram shop/wrongful death action contending trial court erred in denying Motion to Directed Verdict, improperly instructed the jury on willful and wanton misconduct and Dram Shop liability, and improperly allowed the admission of certain evidence. Other appellants and appellee have reached a settlement. The Scheduled Panel Members are: Judges Riley, Kirsch and Pyle. [Where: Court of Appeals courtroom (WEBCAST)]
Wednesday, July 27
  • 1:30 PM - Jordache White, et al v. George Reimer (71A03-1602-CT-00270) In this appeal, Jordache White (White), American Transport LLC (American Transport), and Canal Insurance Company (Canal Insurance) appeal the trial court’s decision to deny their joint motion to set aside a default judgment in favor of plaintiff George Reimer. White, American Transport, and Canal Insurance contend that the trial court lacked jurisdiction to enter a default judgment because they did not receive actual or adequate service; that Reimer did not exercise due diligence to obtain American Transport and White’s whereabouts before utilizing the Secretary of State for constructive service; and that Reimer began taking additional steps to attempt service on American Transport and White only after the default judgment was entered. The Scheduled Panel Members are: Judges Najam, Robb and Crone. [Where: Court of Appeals courtroom (WEBCAST)]
ONLY those Court of Appeals oral arguments presented in the Supreme or Court of Appeals Courtrooms generally will be accessible via videocast.

Past Court of Appeals oral arguments which have been webcast are accessible here.


NOTE: For a printable version of this list of upcoming oral arguments, click on the date in the next line. Then select "Print" from your browser.

Posted by Marcia Oddi on July 18, 2016 07:46 AM
Posted to Upcoming Oral Arguments

Friday, July 15, 2016

Ind. Decisions - Court of Appeals issues 2 opinion(s) today (and 13 NFP memorandum decision(s))

For publication opinions today (2):

In South Indiana Propane Gas, Inc. v. John Caffrey and Leola Caffrey , a 12-page opinion, Judge Pyle writes:

Appellant/Defendant, South Indiana Propane Gas, Inc. (“SIPG”) appeals the trial court’s order requiring it to pay a portion of the attorney fees of Appellees/Plaintiffs, John Caffrey (“John”) and Leola Caffrey (“Leola”) (collectively, “the Caffreys”) on their breach of contract claim. The trial court held that the Caffreys could recover their attorney fees because SIPG’s defense to its breach of contract was unreasonable, groundless, or in bad faith. On appeal, SIPG argues that its defense was not unreasonable, groundless, or in bad faith because: (1) the issue of whether it was required to pay attorney fees was worthy of litigation; and (2) it performed under the contract within thirty days of learning of its failure to perform. Because we are not persuaded that SIPG’s defense was not unreasonable, groundless, or in bad faith, we affirm.
In Larenz Jordan v. State of Indiana , a 13-page opinion, Judge Bailey writes:
Jordan raises two issues for our review, which we restate as:
I. Whether the juvenile court abused its discretion when it granted the State’s motion to waive jurisdiction over Jordan’s case; and
II. Whether Jordan’s sentence was inappropriate and requires revision under Appellate Rule 7(B). * * *

Jordan’s specific allegation of error centers on the court’s use of the phrase “criminal thinking” in its findings concerning the “beyond rehabilitation” element of the waiver statute. Jordan contends that for the court to have entered findings concerning “criminal thinking,” as used in the waiver order, the record required evidence related to “criminogenic traits” as those are understood to apply within the context of evidence-based practices in sentencing and rehabilitation. (Appellant’s Br. at 12.) Jordan notes that “no data was presented regarding criminogenic traits, testing of said traits, or criminal thinking as an area of relevant inquiry.” (Appellant’s Br. at 11.) Absent such evidence, Jordan insists, “the juvenile court had no basis to conclude that Jordan’s criminal thinking presented a bar to his successful rehabilitation within the juvenile justice system.” (Appellant’s Br. at 11.) Thus, Jordan argues that the court’s waiver order was defective as a matter of law. * * *

There is no error associated with the juvenile court’s use of the phrase “criminal thinking” without reference to evidence-based measures of criminogenic behavior where, as here, the elements of the waiver statute are otherwise properly addressed and supported by evidence from the record of the waiver hearing. The juvenile court did not abuse its discretion where there was no evidence related to criminal thinking as that term is used in evidence-based practices assessing criminogenic behavior.

NFP civil decisions today (4):

Pinnacle Properties Development Group, LLC v. David Daily (mem. dec.)

In the Matter of Al.G., As.G., and J.D., Jr. (Minor Children), Children in Need of Services, and C.G. (Mother) and J.D. (Father) v. Ind. Dept. of Child Services (mem. dec.)

Brian L. Boyland, Jennifer K. Boyland, et al. v. Kenneth Hedge, et al. (mem. dec.)

In State of Indiana v. Monroe Liberty, LLC (mem. dec.), a 9-page opinion, Judge Crone writes:

The State of Indiana brings this interlocutory appeal in an eminent domain action involving the taking of real property owned by Monroe Liberty, LLC, for the extension of I-69 from Evansville to Indianapolis. This action is in the damages phase, which has yet to be tried by the jury. The subject of this appeal is the “Trial Order for June 23, 24, 2015” (“the Order”), denying the State’s motion in limine. On appeal, the State contends that the trial court erred in refusing to exclude certain evidence and testimony. Specifically, the State asserts that certain evidence and testimony pertaining to the highest and best use and/or the value of Monroe Liberty’s property is inadmissible because that evidence and testimony are based wholly or partly on the construction and completion of I-69, the project for which the property is being taken.2 Because we conclude that the evidentiary issues raised by the State are not ripe for our review, we dismiss the State’s appeal.
NFP criminal decisions today (9):

Nicholas King v. State of Indiana (mem. dec.)

Tamara Kalinowski Johnson v. State of Indiana (mem. dec.)

Brian Firestone v. State of Indiana (mem. dec.)

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

Ricky D. Wessel v. State of Indiana (mem. dec.)

Dolphus Ballinger v. State of Indiana (mem. dec.)

Oliver Furnell Clemmons v. State of Indiana (mem. dec.)

jesse T. Buchanan v. State of Indiana (mem. dec.)

Mark D. Priest v. State of Indiana (mem. dec.)

Posted by Marcia Oddi on July 15, 2016 03:53 PM
Posted to Ind. App.Ct. Decisions

Ind. Courts - "State Supreme Court sides with judge in dispute with prosecutors" [Updated]

Bob Kasarda reports today in the NWI Times:

The Indiana Supreme Court has sided with Porter Superior Court Judge David Chidester over county prosecutors in a dispute over how certain drunk driving cases are handled.

The Supreme Court ruled 3-2 Thursday that it would not prohibit Chidester from ordering prosecutors to file police reports with specific drunk driving cases where there is a breath test refusal.

Porter County Prosecutor Brian Gensel said Friday morning he will comply with the order. * * *

Before the dispute found its way to the Indiana Supreme Court, Chidester had scheduled a hearing for Gensel and three deputy prosecutors to appear before him to explain why they should not be held in contempt of court for failing to comply with his original order. The hearing was delayed just a few days before to allow consideration by the higher court.

The dispute centers on Chidester ordering prosecutors in April to file photocopies of the arresting officers’ narratives in three drunken driving-related cases, according to court documents.

Chidester argued that the information will allow him to make more fully informed decisions if defendants later seek to terminate their refusals to take a chemical test at the time of their arrest.

Prosecutors, arguing the police reports are “confidential, privileged attorney work product materials,” made an unsuccessful attempt to challenge Chidester’s order.

The Indiana Attorney General’s Office stepped in to represent the prosecutors before the state Supreme Court.

There is much more in the long story. The Supreme Court order, filed yesterday afternoon, July 14th, states in full:
The Relator, Brian Gensel, by counsel, filed a verified petition for a writ of mandamus and prohibition, seeking relief under the rules governing original actions. A Respondent, the Hon. David L. Chidester, filed a brief opposing issuance of the writ. The Court has reviewed the materials filed in this matter. Each Justice has had the opportunity to voice that Justice’s views on this matter in conference with the other Justices, and each Justice has voted on the petition.

Being duly advised, the Court DENIES the petition for writ of mandamus and prohibition. Motions to reconsider or petitions for rehearing are not allowed. Ind. Original Action Rule 5(C).

All Justices concur, except Rush, C.J., and Slaughter, J., who vote to grant the writ.

ILB: Like the order in the IBM case issued July 5th, also involving a Petition for Writ of Mandamus & Writ of Prohibition, the Court here simply rules, without setting forth reasoning.

For more in the Porter County dispute, see also these earlier ILB posts:

Ind. Courts - Updating "Porter Co. Prosecutor faced with contempt in dispute with judge"
Updating this ILB post from June 27th, which links to the documents in the dispute now docketed before the Supreme Court, Kevin Nevers of the Chesterton Tribune yesterday had a long story headed "Judge Chidester responds to Gensel in flap...
Posted in The Indiana Law Blog on July 1, 2016 09:13 AM

Still more on "Porter Co. Prosecutor faced with contempt in dispute with judge"
Updating these two posts from earlier this month: Ind. Courts - More on "Porter Co. Prosecutor faced with contempt in dispute with judge" Updating this ILB post from yesterday, Kevin Nevers of the Chesterton Tribune has a good story on... [This post includes links to the briefs, posted by the ILB]
Posted in The Indiana Law Blog on June 27, 2016 02:42 PM

Ind. Courts - More on "Porter Co. Prosecutor faced with contempt in dispute with judge"
Updating this ILB post from yesterday, Kevin Nevers of the Chesterton Tribune has a good story on the dispute; it begins:The Indiana Supreme Court has been asked to intervene in a flap between Porter Superior Court Judge David Chidester...
Posted in The Indiana Law Blog on June 10, 2016 05:03 PM

Ind. Courts - "Porter Co. Prosecutor faced with contempt in dispute with judge"
Bob Kasarda of the NWI Times has posted this story this afternoon. Some quotes, but read the whole story:VALPARAISO — The Indiana Supreme Court has been called in to settle a dispute heated enough that Porter Superior Court Judge David...
Posted in The Indiana Law Blog on June 9, 2016 05:46 PM

[Updated] Here is a July 15th story in the Chesterton Tribune, reported by Luke Nevers, headed "Judge Chidester prevails in legal flap with Gensel over police reports."

Posted by Marcia Oddi on July 15, 2016 03:17 PM
Posted to Ind. Sup.Ct. Decisions

Ind. Courts - Disciplinary charges filed against COA Sr. Judge Garrard

From a Courts news release:

The Judicial Qualifications Commission (JQC) has filed disciplinary charges against Court of Appeals Senior Judge William I. Garrard. JQC alleges 2 counts of judicial misconduct related to an Operating While Intoxicated conviction. Judge Garrard has 20 days to file an answer to the charges.

The 6-page "Notice of the Institution of Formal Proceedings and Statement of Charges" is public record and has been filed with the Appellate Clerk’s Office. The charges are brought by the 7-member Commission which investigates alleged ethical misconduct by judges. They are separate and distinct charges from any criminal or civil proceedings in the trial court system.

Generally, the disciplinary charges assert Judge Garrard violated judicial canons which require judges to respect the law, avoid impropriety, and promote confidence in the judiciary. In June 2016 Judge Garrard pled guilty in case 55D01-1511-CM-1619 to Operating a Vehicle While Intoxicated Endangering a Person, a Class A misdemeanor. The conviction stems from a Morgan County car crash. Law enforcement reported Judge Garrard stated he would lose his job, and he asked that the drunk driving be forgotten and he be taken home.

ILB: Here is the 6-page notice of charges.

Posted by Marcia Oddi on July 15, 2016 11:32 AM
Posted to Indiana Courts

Ind. Decisions - Two disciplinary orders posted today by Supreme Court

Both disciplinary orders werefiled July 14th:

  • In the Matter of: Eduardo Fontanez, Jr. - trust account violations, "the Court suspends Respondent from the practice of law for a period of six months, beginning August 22, 2016, with two months actively served and the remainder stayed subject to completion of at least two years of probation."

  • In the Matter of: Kenneth T. Roberts
    Being duly advised, the Court GRANTS the parties’ joint motion for leave to file the addendum under seal. The Court, having considered the submissions of the parties, approves and incorporates by reference the terms set forth in the parties’ agreement. Accordingly, the Court GRANTS the Commission’s verified petition to determine disability and ORDERS that Respondent be suspended from the practice of law in this state due to disability, effective immediately, pursuant to Admission and Discipline Rule 23(25). Respondent may petition for reinstatement upon termination of the disability pursuant to Admission and Discipline Rule 23(4) and (18).

Posted by Marcia Oddi on July 15, 2016 11:20 AM
Posted to Ind. Sup.Ct. Decisions

Environment - Mich. Gov. Snyder appoints BP lobbyist to head state environmental agency

A long editorial today in the Detroit Free Press begins:

In the wake of the Flint water crisis, amid profound concerns over an aging oil pipeline under the Great Lakes, with an ongoing, urgent need to decrease pollution and improve air quality and public health in southwest Detroit, Gov. Rick Snyder has appointed ... wait for it ... a former oil-industry lobbyist, Heidi Grether, to head the state's Department of Environmental Quality.

It's a stunning look into the way the governor views the state's responsibility to protect Michigan's environment, and Michiganders' health.

And in the aftermath of the Flint water crisis, it's like Snyder is rubbing the noses of his constituents in his own mess. The move is astoundingly tone-deaf to Michiganders, who rely on the state's environmental regulatory agency to keep us safe. It's also a tacit announcement that Snyder no longer finds rebuilding Michiganders' trust in government, something nearly everyone agreed was paramount after the Flint crisis, to be particularly important.

Posted by Marcia Oddi on July 15, 2016 10:38 AM
Posted to Environment

Law - "What sharia law actually means"

That is the title to a Feb. 26, 2011 article by Justin Elliott in Salon.

And today, this story in Atlantic, authored by Jeffrey Goldberg and titled: "Sharia Does Not Mean What Newt Gingrich Thinks It Means: One country that officially endorses the Muslim legal system is one of the politician’s favorites—Israel."

From July 29, 2013, this article in the Huffington Post by Omar Sacirbey, headed "Sharia Law In The USA 101: A Guide To What It Is And Why States Want To Ban It."

Posted by Marcia Oddi on July 15, 2016 10:27 AM
Posted to General Law Related

Courts - "Election Cases Move Toward SCOTUS, Risking Deadlocks"

Important story today in Bloomberg, from Greg Stohr. It begins:

At the shorthanded U.S. Supreme Court, the next deadlock may affect the November election.

A group of voting-rights cases is making its way to a court that’s all but guaranteed to have a lingering vacancy through the election. The divisive nature of the issues may leave the eight justices unable to decide who can cast the ballots that will determine control of the White House and Congress.

The disputes involve voter-identification requirements in Texas, Virginia and Wisconsin; an early-voting period in Ohio; a variety of restrictions in North Carolina; and proof-of-citizenship laws elsewhere. The cases pit Democrats and civil-rights groups claiming discrimination against Republicans arguing the steps are warranted to prevent voter fraud.

"They affect the rights of voters to be able to cast an effective ballot that will be counted accurately," said Rick Hasen, an election-law professor at the University of California, Irvine.

ILB: Prof. Hasen writes the "must follow" Election Law Blog.

Posted by Marcia Oddi on July 15, 2016 10:16 AM
Posted to Courts in general