Tuesday, August 30, 2016

Ind. Decisions - 7th Circuit decides one Indiana case today, re a child care ministry

In Rebirth Christian Academy Daycare v. Melanie Brizzi (SD Ind., Barker), a 17-page opinion, Judge Rovner writes:

Rebirth Christian Academy Daycare, an Indiana non‐profit corporation, ran a child care ministry—a “child care operated by a church or religious ministry that is a religious organization exempt from federal income taxation.” IND. CODE § 12‐7‐2‐28.8. A state agency re voked Rebirth’s registration after an inspector concluded that the organization had violated several statutory and regulatory provisions governing registered child care minis‐ tries. Rebirth sued state officials for damages and injunctive relief under 42 U.S.C. § 1983, claiming that they had violated the due‐process clause of the Fourteenth Amendment by revoking its registration without providing it with an opportunity to be heard. The district court dismissed Rebirth’s in dividual‐capacity claims, concluding that qualified immunity protected the defendants from liability for civil damages because they had not violated clearly established law. After the parties developed an evidentiary record on the official‐capacity claims, Rebirth ultimately prevailed on its claims for injunctive relief. It now challenges the district court’s dismissal of its claims for damages against the defendants sued in their individual capacities. We conclude that, based on the allegations in the complaint, the defend‐ ants were not entitled to qualified immunity because they violated clearly established law: the complaint adequately alleges that they deprived Rebirth of a property interest without first providing an opportunity for some type of hearing. Accordingly, we reinstate Rebirth’s individual‐capacity claims and remand for further proceed ings. * * *

In sum, we do not decide the type of pre‐deprivation hearing that Rebirth was entitled to or that Rebirth shall now recover damages. We conclude only that Rebirth’s complaint alleges that the appellees personally violated clearly estab‐lished law by depriving Rebirth of a property interest (its registration) without first providing Rebirth with any opportunity to be heard. Rebirth will, of course, need more than allegations to prevail on these claims; it will need evidence proving that these defendants were personally involved in the constitutional violation. Given the procedural posture of this case, the district court should, if necessary, provide Rebirth with an opportunity for additional discovery so that it may obtain such evidence.

Accordingly, the judgment of the district court is VACATED only to the extent that it dismisses Rebirth’s individual‐capacity claims against Brizzi and Gargano, and the case is REMANDED to the district court for further pro ceedings consistent with this opinion.

Posted by Marcia Oddi on August 30, 2016 02:53 PM
Posted to Ind. (7th Cir.) Decisions

Ind. Gov't. - More on: Civil rights issues related to gender identity and sexual orientation

Updating this ILB post from yesterday, Zach Osowski of the Evansville Courier & Press reported at noon today in a story headed: "Sides still far apart in LGBT debate." Some quotes:

INDIANAPOLIS -- With proponents on both sides of Indiana LGBT civil rights debate still far apart, lawmakers might leave the issue up to the courts to decide.

Indiana's Interim Courts and Judiciary Committee heard testimony regarding civil rights for Indiana's LGBT community for more than two hours on Tuesday. After hearing passionate testimony on both sides of the issue, Committee Chair Rep. Greg Stueurwald, R-Avon, said lawmakers needed to be cognizant of how the court system is dealing with these issues.

"I think each and every one one of these issues is now making its way through federal courts," Stueurwald said. "We need to be aware of that and see how those cases make progress. No matter what we do, it's probably going to be preempted."

Steuerwald said several committee members have expressed to him a desire to wait and see what the courts do before introducing legislation.

Committee member Rep. Tom Washburne, R-Evansville, said legislators are still unsure how best to mesh civil rights with religious freedom in Indiana. Washburne quoted the state constitution's mandate that the state not pass any law that conflicts with the free exercise of religious opinions or the rights of conscience in Indiana. He said unless both sides can agree on a compromise, legislation in 2017 seems unlikely.

"If you grant civil rights protections, you have to be careful about providing some religious exemptions," Washburne said. "And where they got stuck in the Senate was, what kind of religious exemptions do you grant? No one's found a great solution for that." * * *

The main reason the issue is being studied this summer is because of the mandate from the Obama Administration asking schools to allow students to use restrooms based on their gender identity. Those who spoke against civil rights Tuesday spent most of their time expressing concerns about the lack of privacy and safety the mandate brings. * * *

Sen. Travis Holdman, R-Markle, who authored the failed legislation earlier this year, said he was a little confused on the bathroom focus from LGBT right opponents.

"I'm not sure that that is an issue because transgender folks are using the bathroom of their choice currently," Holdman said. "I don't see that as an issue to be honest with you."

Because of the workload placed on the judiciary committee, this is the only scheduled meeting where LGBT rights will be discussed. The committee will decide later if legislation should be introduced.

Posted by Marcia Oddi on August 30, 2016 01:58 PM
Posted to Indiana Government

Ind. Gov't. - More on: Does historic designation affect property values?

Updating this long ILB post from August 8th, Rebecca S. Green moves the story forward today with this report in the Fort Wayne Journal Gazette that begins:

Richard Herber owns a historic home, Fort Wayne’s only house designed by famed architect Frank Lloyd Wright.

And for months, he has battled the Fort Wayne City Council and the Fort Wayne Historic Preservation Commission to get the Usonian-style house’s designation as a Local Historic District removed.

Last week, he took the matter to federal court, filing a lawsuit, without the benefit of an attorney, against both the council and the commission. He is asking a federal judge to remove the restriction, grant him fees and costs, and award him damages he says he’s suffered because of the house’s historic status.

Posted by Marcia Oddi on August 30, 2016 01:52 PM
Posted to Indiana Government

Environment - "Google cameras to capture autumn in Brown County"

See the complete $$ Bloomington Herald-Times story by Laura Lane here, or the abridged story via Indiana Economic Digest. The intro:

Before long, the world will be able to view Brown County’s autumn beauty from winding and sometimes obscure trails as volunteers strap a 50-pound, 15-lens Google Trekker backpack camera onto their backs and head out into the woods to record the sights.

Posted by Marcia Oddi on August 30, 2016 01:43 PM
Posted to Environment

Ind. Decisions - Court of Appeals issues 0 opinion(s) today (and 3 NFP memorandum decision(s))

For publication opinions today (0):

NFP civil decisions today (2):

In re the Paternity of: L.S., Chen Su v. James Lowe (mem. dec.)

In the Term. of the Parent-Child Relationship of A.S. & L.S. (Minor Children) and M.S. (Mother) & J.S. (Father) v. The Ind. Dept. of Child Services (mem. dec.)

NFP criminal decisions today (1):

Kayniece B. Davis v. State of Indiana (mem. dec.)

Posted by Marcia Oddi on August 30, 2016 01:29 PM
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Dictionary citations by the courts

In Michael Day v. State of Indiana (ILB summary here), decided yesterday by our Supreme Court, the Supreme Court referred to Black's Law Dictionary:

Here, “fighting” is ambiguous because it can reasonably cover either interpretation Day offers: narrowly covering only physical altercations or broadly covering both physical and verbal altercations. As evidence of that ambiguity, we note inconsistent definitions among judicial opinions and even among editions of Black’s Law Dictionary. * * *

Black’s Law no longer defines the term “fight” or any variation. See Black’s Law Dictionary (10th ed. 2014).

The ILB has had prior posts about courts' use of dictionary definitions, including this one from July 5, 2011 about use of dictionary citations by SCOTUS justices. It is interesting reading.

That 2011 post ended with a look at Indiana. IU-Indy Law prof Joel Schumm offered:

[A]dvocates and courts often just run for a dictionary that says what they want it to say and stop there. I think it's generally wrong to use Black's if the court is trying to give meaning to an undefined legislative term (most legislators are not lawyers) or address whether a term is unconstitutionally vague (fails to give notice to people of ordinary intelligence). The Indiana Supreme Court agreed in one of my all-time favorite cases, Richard Brown v. State.
From p. 4 of the opinion by Justice Dickson:
The statute does not provide a particular definition for any of these three terms. In our evaluation of the defendant's vagueness claim, which hinges upon how ordinary people understand statutory language, we prefer to consult standard dictionaries, not a specialized legal dictionary as cited by the State.

Posted by Marcia Oddi on August 30, 2016 09:01 AM
Posted to Indiana Decisions

Ind. Courts - Amendments to trial rules effective September 1st

The amendments, filed yesterday by the Supreme Court, take effect September 1st. They impact trial records and the duties of the clerks of the courts.

Posted by Marcia Oddi on August 30, 2016 08:44 AM
Posted to E-filing | Indiana Courts

Monday, August 29, 2016

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

In Charles Walker v. Kathy Griffin (SD Ind., Magnus-Stinson), an 11-page opinion, Judge Wood writes:

Charles Walker was convicted in an In- diana court of robbery, adjudicated a habitual offender pur- suant to Indiana Code § 35 -50- 2- 8, and sentenced to 40 years in prison . Twenty of those years were attributable to his ha- bitual- offender status. The version of the habitual- offender statute Indiana had in place at the time applied if a defendant had been convicted of two prior unrelated felonies , in a spe- cific sequence: the second felony had to have been committed after the commission of and sentencing for the first, and the present crime had to have been comm itted after the commis- sion and sentencing of the second earlier offense. At Walker’s trial, the state provided evidence of three prior felonies, but it failed to offer evidence of the date when one of the crimes was committed.

The only claim Walker presses before us is ineffective as- sistance of appellate counsel. He contends that his lawyer on direct appeal should have challenged the sufficiency of the evidence for the habitual- offender conviction , given the miss- ing date. Even a ssuming that counsel’s performance fell be- low the constitutional minimum, we conclude that Walker’s petition for a writ of habeas corpus was properly dismissed. The state appellate court’s conclusion that Walker’s Sixth Amendment right to counsel was not infringed meets the gen- erous standards that apply under 28 U.S.C. § 2254, and so we affirm.

Posted by Marcia Oddi on August 29, 2016 06:35 PM
Posted to Ind. (7th Cir.) Decisions

Ind. Decisions - More on "Monarch Beverage owners can sell liquor, judge rules"

Supplementing this ILB post from earlier today, which includes a copy of Judge Welch's ruling [which I've now ORCed], Hayleigh Colombo reports now in the IBJ in a story headed "Emails show state staffers rooting against Monarch's liquor battle." Some quotes:

In her ruling, Judge Heather Welch called electronic communications between the governor's office, ATC and Monarch opponents "disturbing and inappropriate,” saying the “discussions challenge the integrity of the application process and raise questions about the [ATC’s] willingness to serve all citizens of Indiana equally, fairly, and without bias.”

Welch added: "Though political appointees, the Commission is supposed to be an independent agency that grants permits on the basis of merit without any consideration of the applicant's politics. The Commission must not have its judgment questioned by seeking advice on the issuance or denial of permits by having ex parte discussions with staffers of a government office or Remonstrators." [ILB emphasis]

The emails show aides to former Gov. Mitch Daniels and Gov. Mike Pence were regularly in touch with ATC decision-makers regarding various requests from Monarch over the years, sometimes cheering behind closed doors when the company failed. And Monarch’s competitors appeared to have frequent communication with the two entities, calling themselves “the good guys.”

In 2009, a Daniels aide even appeared to direct an ATC commissioner to deny one of Monarch’s requests. The company at the time was seeking permission from the ATC to allow Indiana Wholesale Wine & Liquor Co. to transfer its liquor permit to Monarch's Pendleton Pike warehouse and use its transportation services.

Jessica Norris, policy director for regulatory and administrative affairs under Daniels, wrote in a July 27, 2009, memo circulated in the governor’s office that Monarch was trying to “get into the business of selling and/or distributing spirits.”

“I’ve told Snow this is not something we want to allow, so he will be denying the request unless you have additional concerns,” Norris wrote in the memo. P. Thomas Snow was the chairman of the ATC at the time. * * *

Jim Purucker, who runs the Wine & Spirits Distributors of Indiana, emailed Norris in May 2012 asking to “get on your calendar to talk Monarch issues sometime soon.” The group opposes Monarch's entry into liquor distributing, saying it would have an unfair competitive advantage in the market.

“Absolutely,” Norris replied, and the two set a date to meet the following week.

In other emails, ATC staff came across as frustrated over its dealings with Monarch and Spirited, and annoyed at having to fulfill requests the companies made under the state's public records law that could be used to challenge commission decisions.

“Make it stop!!! Dear God, make it stop!!! Don’t they know that this is an informal hearing where the COMMISSION should be asking for information, not the other way around?” an ATC staffer, Allen Renfro, wrote in April 2014 to ATC Executive Secretary David Rothenberg.

Rothenberg emailed Adam Berry, regulatory policy director and special counsel under Pence, in June 2014 to express his frustration after Spirited sought a continuance of its hearing into whether the ATC would approve its liquor wholesaling permit—the matter that was at issue in the Spirited Court case—because Spirited had yet to receive public records it had requested it believed were relevant to the proceedings.

Rothenberg said Spirited seemed to be making requests for the purpose of “building up a case” against the commission, and said that wasn’t the commission’s job.

“Their requests are indeed [public records] requests, but let’s be honest about their intent—they want to find evidence which shows [the commission’s] conflicting past decisions,” Rothenberg wrote to Berry in June 2014.

Rothenberg wrote to another ATC staff member the next month that his “head was going to explode” after Spirited submitted a motion to disqualify Alex Huskey, then the chairman of the ATC, from hearing its case. Included was an affidavit of a former Indiana State Excise Police officer, who said it was her impression that Huskey “harbored animosity” against Monarch, its CEO Phil Terry and EF Transit.

Rothenberg said they "would have a laugh reading this.”

Monarch’s competitors also didn’t hesitate voicing their glee to ATC staff members at Monarch’s failings at entering the liquor industry.

In a 2012 email between Purucker, who runs Wine & Spirits Distributors of Indiana, and ATC Executive Secretary Davey Neal, Purucker said it was a “good day for the good guys” because Monarch “didn’t do so well.”

Neal responded simply: “You lose some, you lose some."

ALL THOSE QUOTES are in the Welch opinion; my KUDOS to Hayleigh Colombo!!!

Posted by Marcia Oddi on August 29, 2016 02:58 PM
Posted to Ind. Adm. Bd. Decisions | Ind. Trial Ct. Decisions

Courts - Would this even be an issue in Indiana? Another attorney sits in for judge

I believe that in Indiana attorneys may sit on the bench as special or pro tem judges. Not so, apparently, in Illinois. I first saw this story in the WSJ Law Blog, where Josh Gershman wrote:

Cook County Circuit Judge Valarie English Turner has been suspended from the bench after she was accused of allowing a court clerk to preside over at least two cases. The clerk, Rhonda Crawford, is a lawyer but not a judge; she is a judicial candidate vying for an uncontested bench seat this fall. But she allegedly acted as one, even dressing the part.

“It is further alleged that Ms. Crawford’s adjudication of cases took place on the judge’s bench in a courtroom and while wearing a judicial robe provided by Judge Turner,” states a disciplinary order issued by the circuit court’s executive committee on Wednesday.

The order continues: “The Committee conducted a preliminary review of these allegations…and concluded that a possible threat of injury to the public’s confidence in the integrity and impartiality of the judiciary and to the orderly administration of justice may have occurred.”

The two cases Ms. Crawford heard in August weren’t what one would call landmark. Both involved minor traffic tickets: one for driving with no insurance and the other for driving on a median, according to a court spokesman. The cases will be reheard, presumably this time by an actual judge.

The Chicago Tribune is quoted in the WSJ article as reporting:
The incident shocked judicial ethics experts, who said it would be such an ethical lapse — and possibly a violation of the law for the impersonation of a judge — they were surprised any judge would allow it and any lawyer would actually take the bench. It also raised a host of issues, from questions about the validity of any judgment Crawford might have rendered to the cost and inconvenience of rehearing cases she handled.
From a Chicago Tribune story today by Steve Mills and Todd Lighty, headed "Criminal probe launched in case of lawyer who allegedly posed as judge":
The Cook County state's attorney's office said on Friday that it had begun a criminal investigation into an incident earlier this month in which a municipal court judge at the south suburban Markham courthouse allegedly allowed a law clerk to wear a robe and hear traffic cases. * * *

Daly would not say if the judge, Valarie Turner, or the law clerk, Rhonda Crawford, was the target of the investigation. But moving from a review to an investigation suggests prosecutors have determined there is enough evidence of wrongdoing to determine whether charges are warranted.

Crawford has been a law clerk/staff attorney in the office of Cook County Chief Judge Timothy Evans since 2011. In March, she defeated two opponents in the Democratic primary for the 1st Judicial Sub-circuit, which includes parts of the South Side and some of the south suburbs. She is unopposed in the November general election.

Evans temporarily removed Turner from the bench and assigned her to handle administrative tasks such as conducting weddings and reviewing requests for fee waivers in civil cases. He suspended Crawford without pay from her $57,000-a-year job. * * *

The incident occurred on Aug. 11, when officials say Crawford put on a robe and, with Turner standing nearby, presided over at least two traffic cases. Both involved South Side residents driving in Dolton; one was ticketed for driving with no proof of insurance, the other for driving on the median.

Documents show one case was continued, while the other was dismissed when the officer failed to appear in court.

Both cases will be reheard by a real judge.

Experts in legal and judicial ethics were left slack-jawed by the incident. They said that it likely violates several rules for lawyers and judges and might even have been illegal for Crawford to pretend to be a judge. The Judicial Inquiry Board, which oversees judges in the state, and the Attorney Registration and Disciplinary Commission, which licenses and disciplines lawyers, likely will investigate the incident as well.

Posted by Marcia Oddi on August 29, 2016 01:41 PM
Posted to Courts in general

Ind. Courts - Allen Superior Court looking to hire 2 clerks to start next July 31

"Resumes accepted from 3L students - please include Transcript, Writing Sample, and References. Applications should be submitted no later than September 30, 2016." Pay is $1738.35 bi-weekly. More here.

Posted by Marcia Oddi on August 29, 2016 01:14 PM
Posted to Indiana Courts

Ind. Decisions - Supreme Court decides one today, re disorderly conduct statute

In Michael Day v. State of Indiana, a 7-page, 5-0 opinion, Chief Justice Rush writes:

As Michael Day’s marriage dissolved, the family home became increasingly tense, until one night Day came home, screamed in his wife’s face, and spat in her eye. Four 911 calls later, Day was arrested. He was subsequently convicted of disorderly conduct based on “fighting.” Here, he asks us to interpret the disorderly conduct statute’s “fighting” subsection to require both a public disturbance and a physical altercation, claiming the State failed to prove either element. Guided by well - established principles of statutory interpretation, we conclude that the “fighting” subsection does not contain a public disturbance element but does require a physi cal altercation. Still, Day’s intentional spitting provided sufficient evidence of a physical altercation. We thus affirm his disorderly conduct conviction. * * *

The Court of Appeal s affirmed in a split decision. Day v. State, 48 N.E.3d 921 (Ind. Ct. App. 2016). The majority held the “fighting” subsection required neither a public disturbance nor a physical altercation, and sufficient evidence supported the conviction. Id. at 924 – 27. Judge Baker dissented, contending that the disorderly conduct statute does not prohibit private, verbal altercations. Id. at 927 – 28 (Baker, J., dissenting). * * *

Given its plain language, we conclude that the disorderly conduct statute’s “fighting” subsection contains no public disturbance element. And even though we i nterpret the ambiguous word “fighting” narrowly to cover only physical altercations, Day’s spitting satisfied that element. We thus affirm Day’s conviction for B - misdemeanor disorderly conduct

Posted by Marcia Oddi on August 29, 2016 11:21 AM
Posted to Ind. Sup.Ct. Decisions

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

For publication opinions today (2):

In City of Lawrenceburg, Indiana, Mayor of Lawrenceburg in his official capacity, Common Council of the City of Lawrenceburg in their official capacities v. Franklin County, Indiana, et al. , a 5-page opinion, Judge Bradford writes:

In 2015, Appellees-Plaintiffs Franklin County and the Franklin County Board of Commissioners (collectively, “Franklin”) filed a complaint in Franklin Circuit Court alleging breach of contract by Appellants-Defendants the City of Lawrenceburg, the mayor of Lawrenceburg, and the common council of Lawrenceburg (collectively, “the City”). The City filed a motion, pursuant to Trial Rule 76(A), requesting a change of venue from Franklin County to Dearborn County. The trial court denied the City’s motion. On appeal, the City contends that the trial court erred in denying its motion for change of venue. We reverse the trial court’s ruling and remand with instructions. * * *

Regardless of whether Franklin County is a preferred venue, its status as such is trumped by Trial Rule 76(A), which states explicitly that a motion requesting a change of venue “shall be granted only upon a showing that the county where suit is pending is a party.” That is clearly the case here. Accordingly, the trial court was required to grant the City’s motion and erred in failing to do so. * * *

[The City also argues] that Dearborn County is the appropriate venue because the City is located in Dearborn County, making it a preferred venue. However, Rule 76(D) sets forth specific procedural steps for change of venue determinations and preferred venue is not a requirement. Accordingly, it is up to the parties on remand to determine a new venue in accordance with Rule 76(D).

In Terex-Telelect, Inc. v. Anthony Wade, a 13-page opinion, Judge Altice writes:
In a previous appeal in these proceedings, this court reversed a jury verdict in favor of Terex-Telelect, Inc. (Terex) based on an erroneous jury instruction. See Wade v. Terex-Telelect, Inc., 966 N.E.2d 186 (Ind. Ct. App. 2012), trans. denied. (Terex I). Specifically, the majority held that evidence of Terex’s compliance with American National Standards Institute Standard A92.2 (ANSI A92.2) in the design of the bucket at issue was irrelevant to the defect alleged by Wade, and thus, did not support the giving of a jury instruction regarding a rebuttable presumption that the bucket at issue was not defective. The case was remanded to the trial court.

In advance of the third trial, Wade filed a motion in limine seeking to exclude evidence of Terex’s compliance with ANSI A92.2 and the design specifications found in ANSI A92.2. The trial court granted Wade’s motion, finding that this court’s decision in Terex I established the law of the case with regard to relevancy and therefore required such exclusion. Terex moved to certify the matter for interlocutory appeal, which request the trial court granted. This court accepted jurisdiction over this interlocutory appeal on December 18, 2015. There are two issues presented for our review:

1. Under the law of the case doctrine, does this court’s prior opinion in Terex I require exclusion of evidence pertaining to ANSI A92.2 and Terex’s compliance therewith in a subsequent trial?
2. Is evidence relating to ANSI A92.2 and Terex’s compliance therewith relevant?

We affirm

NFP civil decisions today (0):

NFP criminal decisions today (2):

Tyler Matthew McAfee v. State of Indiana (mem. dec.)

Jackie Butler v. State of Indiana (mem. dec.)

Posted by Marcia Oddi on August 29, 2016 11:04 AM
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Transfer list for week ending August 26, 2016

Here is the Clerk's transfer list for the week ending Friday, August 26, 2016. It is one page (and 17 cases) long.

No transfers were granted last week.

Posted by Marcia Oddi on August 29, 2016 09:50 AM
Posted to Indiana Transfer Lists

Ind. Gov't. - Civil rights issues related to gender identity and sexual orientation

The Interim Study Committee on Courts and the Judiciary meets tomorrow, August 30th, at 9:00, in Rm. 404 of the Statehouse. This is the interim committee's first meeting of this interim. One item is on the agenda, "Civil rights issues related to gender identity and sexual orientation." You will be able to watch it live. There is no indication that this will be a public hearing, that there will be speakers, etc. The Star story (below) says the committee will "hear testimony," but does not expand.

The Indianapolis Star has a long story on the LGBT rights debate and the upcoming meeting, reported by Stephanie Wang. A few quotes:

A special panel of lawmakers convenes Tuesday morning to study the issue and hear testimony, in order to submit recommendations for the 2017 legislative session.

But, after last session's attempt at seeking compromise between LGBT rights and religious rights ended in standstill, hopes for passing statewide legal protections for LGBT Hoosiers seem to remain tempered. * * *

The chamber and advocacy group Freedom Indiana say they are focusing on familiarizing people with the discrimination that gay and transgender Hoosiers can face, in addition to helping municipalities develop local ordinances to ban discrimination against LGBT people.

Indy Chamber is among the business interests that have pushed for the inclusion of sexual orientation and gender identity as protected classes in state civil rights code. Those business interests argue that it's an economic imperative to instate unequivocal protections for LGBT people, to make the state a welcoming environment for attracting and retaining new businesses and workers.

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

Ind. Decisions - "Monarch Beverage owners can sell liquor, judge rules" [Updated]

Vic Ryckaert reported this weekend for the Indianapolis Star:

Marion Superior Court Judge Heather Welch on Wednesday ordered the Indiana Alcohol and Tobacco Commission [ATC] to grant a liquor license to Spirited Sales, a company owned by the same people who own Monarch, the state's largest beer and wine distributor. * * *

In a 52-page order, the judge ruled that the ATC "acted in an arbitrary and capricious manner" when it denied Spirit's wholesale liquor permit last year.

Welch's ruling cites special privileges the ATC gave to Spirit's would-be competitors during the licensing hearings.

Two trade associations representing liquor sellers, Wine & Spirits and the Indiana Beverage Alliance, were allowed to cross examine witnesses, raise objections and make closing arguments "as if they were parties to the proceedings," Welch wrote.

Welch noted the ATC has granted licenses to at least 11 other companies with similar ownership circumstances.

Indiana is the only state that does not allow wholesalers to distribute both beer and alcohol. In the order, Welch cites the growing popularity of craft beer and noted that the "landscape of alcohol sales is radically different" than when the rules were drafted in 1973.

Monarch has been fighting, and losing, in court to change the law for several years.

In December the Indiana Court of Appeals ruled against Monarch's request to sell both beer and liquor.

That was the Dec. 17, 2015 COA opinion in Monarch Beverage v. ATC; see ILB summary here.

ILB: The ILB is seeking a copy of Judge Welch's opinion...

[Updated at 9:58 am] The ILB has now received a copy of the 52-page order in Spirited Sales v. ATC (49DOl-1502-PL-005520) [h/t Vic Ryckaert]. Here is some of the language in the order:

b. Prior Applicants * * *

50. In light of these previous decisions (which have been mentioned previously in this Court's Findings of Fact and Conclusions of Law) recognizing that corporate separateness would allow an owner to be involved in multiple ventures that hold different types of alcohol permits, it would appear that the Commission's denial of Spirited's application for a liquor wholesale permit was arbitrary and capricious. While not necessarily bound by precedent, the Commission would need to articulate a clear reason to distinguish Spirited's application from other owners who have sought and received alcohol permits.

51. Rather than distinguishing its rejection of Spirited's permit from the above examples, the Commission has instead argued that its past decisions were made in error. The Commission argues that these other applications should not have been awarded permits because their owners concurrently owned or managed entitles holding other alcohol permits. The Commission does not offer arguments as to why it may have earlier awarded permit; instead, the Commission wants this Court to discount its earlier decisions further by stating that they were incorrect. Indiana law prohibits this practice.

52. Despite the Commission's apparent remorse over their initial rulings, the agency has established a standard that corporate separateness can allow parties to own interests in multiple companies that hold different alcohol permits as long as the companies uphold and maintain separate corporate structures. This was not a one-time decision; the Commission has shown a clear pattern of interpreting the Prohibited Interest Provisions to allow parties to have concurrent interests in companies that hold different alcohol permits across tiers and types of alcohol. The Commission cannot eliminate this pattern by arguing now that all of these decisions were incorrect.

d. Legislative Action and Title 7.1 and Remonstrators' Participation

57. This Court recognizes that the business landscape of alcohol sales is radically different than when much of Title 7.1 was drafted in 1973. The emergence of the craft beer industry both locally and nationally has had tremendous impacts on the entire industry landscape that are only beginning to be understood. Laws written decades ago could not have accurately predicted this rapid expansion of brewing operations that has led to more breweries than ever in the United States. A similar paradigm shift could occur in the liquor industry as local and craft distillers begin to open. These new business models do not map neatly to the existing regulatory framework, and previously the Indiana legislature has responded by making adjustments to Title 7.1 that allow for industry innovation while ensuring that taxes are collected and consumers are protected.

58. This case, however, represents the ultimate shortcomings in Title 7.1 as it is written. The changes in the industry may have become too profound to rely on a framework written over forty years ago. It may be time for the legislature to study the major shifts in the industry and redraft provisions Title 7.1 to better and more fully articulate its motivations behind the threetier framework to assist members of the industry and their counsel to better understand the expectations of the Commission in order to allow the industry to grow and adapt well into the 21 st Century. However, this Court notes that modification of such statues is solely within the preview of the legislative branch.

59. In light of the Commission's past decisions under similar circumstances and its refusal to correct a known ambiguity, the Commission's disparate treatment of Spirited Sales, absent any substantial evidence to the contrary, amounts to an arbitrary abuse of discretion under I.e. § 4- 21.5-5-14, and I.C. § 7.1-3-23-30. Furthermore, the Court finds that there are not statutes which specifically address how Remonstrators should or should not be able to participate when addressing a wholesaler's permit but that the Commission might consider enacting administrative code establishing such procedures or at the very least treat all Remonstrators regarding wholesale's permits in the same fashion.

60. At this point, the Court would prefer to remand this case back to the Commission for further proceedings consistent with this ruling. However, i.e. § 7.1-3-23-41 removes that authority from this Court and requires the issuance of the liquor wholesaler's permit to Spirited upon a finding that the Commission acted in an arbitrary and capricious manner. The Court hereby GRANTS Spirited's Petition for Judicial Review and mandates the Commission to issue Spirited a liquor wholesaler's permit.

Posted by Marcia Oddi on August 29, 2016 08:50 AM
Posted to Ind. Trial Ct. Decisions

Indiana Decisions - Guns, hospital charges, and who owns Lake Michigan's beaches - all coming up for appellate argument

Oral arguments to watch for in the next two weeks:

  • Before the Supreme Court this Wednesday: Does Indiana’s Immunity Statute (IC 34-12-3-3) protect firearm sellers from being sued for damages stemming from illegal straw sales?

  • Before the Supreme Court this Thursday: Should an uninsured patient be granted discovery regarding hospital fees that would have been charged to insured patients for the same services?

  • Before the Court of Appeals next Thursday, September 8: Who owns land along the Lake Michigan shoreline?
For details, see the earlier ILB entry this morning, "Upcoming oral arguments this week and next."

Posted by Marcia Oddi on August 29, 2016 08:29 AM
Posted to Indiana Decisions

Ind. Decisions - Upcoming oral arguments this week and next

This week's oral arguments before the Supreme Court (week of 8/29/16):

Wednesday, August 31

  • 10:45 AM - KS&E Sports, et al. v. Dwayne H. Runnels (49S02-1606-CT-00349) A police officer was shot by a convicted felon using a firearm purchased from a sporting goods store. Alleging that the felon had acquired this firearm through an illegal straw sale, the injured officer filed suit against the sporting goods store and its owner. The defendants moved to dismiss the case pursuant to Indiana’s Immunity Statute (Ind. Code § 34-12-3-3), which provides protection for firearms manufacturers and sellers for their own lawful conduct and for damages stemming from a third party’s criminal conduct. The Marion Superior Court denied this motion and permitted the defendants to file an interlocutory appeal. In a split decision, the Court of Appeals affirmed the trial court and held that the Immunity Statute did not protect firearm sellers from being sued for damages stemming from illegal straw sales. KS&E Sports v. Runnels, No. 49A02-1501-CT-42, -- N.E. 3d --- (Ind. Ct. App. March 17, 2016). The sporting goods store has petitioned the Supreme Court to accept jurisdiction over the appeal, and amicus curiae National Shooting Sports Foundation has filed a brief in support of transfer.

    ILB: The last sentence above appears odd. The transfer list from 6/24/16 indicates that transfer was granted (see 3rd case), and the docket has a link to an order granting the petition to transfer.

    This was a March 21, 2016 2-1 ruling with three opinions. See this March 21, 2016 ILB post about the COA opinion, including quotes from Alison Frankel's national "On the Case" column.

Thursday, September 1

  • 9:00 AM - James F. Griffith v. State of Indiana (27S00-1503-LW-145) Following a jury trial, the Grant Superior Court convicted Griffith of robbery, conspiracy to commit robbery, and murder, and it sentenced him to life imprisonment without parole. Griffith appeals alleged errors related to his convictions, and he challenges the denial of his request to file a belated notice of appeal.

  • 9:45 AM - Parkview Hospital, Inc. v. Thomas E. Frost, et al. (02A03-1507-PL-00959) When an uninsured patient sued for declaratory relief, challenging the reasonableness of charges reflected in a notice of lien filed by the hospital, and the patient sought discovery from the hospital regarding fees that would have been charged to insured patients for the same services, the Allen Circuit Court denied the hospital’s motion for partial summary judgment. The Court of Appeals affirmed. Parkview Hosp., Inc. v. Frost, No. 02A03-1507-PL-959, 2016 WL 943430 (Ind. Ct. App. Mar. 14, 2016), trans. pending. The hospital has petitioned the Supreme Court to accept jurisdiction over the appeal.

    ILB: This is a 2-1 March 14, 2016 COA decision. See also this March 21st ILB post headed "Could Indiana Supreme Court take second look at health care pricing?"

Next week's oral arguments before the Supreme Court (week of 9/5/16):

  • 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 8/29/16):

  • No oral arguments currently scheduled.

Next week's oral arguments before the Court of Appeals (week of 9/5/16):

Thursday, September 8

  • 1:30 PM - Don Gunderson, et al, v. State of Indiana, et al, (46A03-1508-PL-01116) This case addresses who owns land along the Lake Michigan shoreline. A landowner, Gunderson, sought a declaratory judgment that his property extended to the water's edge and the public had no rights to land not covered by water. The State and intervenors argued the State holds land up to the ordinary high water mark, even when it is not covered by water, and holds it in trust for the public. The trial court granted summary judgment for the State, and further held the ordinary high water mark is determined by an administrative regulation. The Scheduled Panel Members are: Judges Baker, May and Brown. [Where: Supreme Court 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 August 29, 2016 08:24 AM
Posted to Upcoming Oral Arguments

Friday, August 26, 2016

Ind. Decisions - Three new disciplinary rulings from Supreme Court

In the Matter of Edward L. Harris III and In the Matter of: Samuel G. Vazanellis, are immediate suspensions from the practice of law in this state for failure to cooperate with the Disciplinary Commission’s investigation of a grievance.

In In the Matter of: James A. Shoaf, a 2-page, 5-0 order, The Court writes:

At relevant times, Respondent was a contracted public defender in Bartholomew Superior Court. Respondent received appointments to represent indigent defendants on appeal of criminal convictions pursuant to an agreement that, among other things, provided for a flat fee payment of $2,000 for appeals from sentencing orders. By custom, Respondent would seek one -half of this fee up front and the remainder when the appeal was complete. In three such sentencing appeals for which Respondent either accepted appointments or otherwise acted as appellate counsel, Respondent filed notices of appeal and case summaries but thereafter failed to advance the appeals, resulting in the Court of Appeals dismissing each appeal. In at least two of these appeals, Respondent invoiced and received from the County partial payment s of $1,000. In two appeals, Respondent did not notify the defendant that the appeal had been dismissed; and in the third appeal, in response to an inquiry from the defendant, Respondent advised the appeal had been dismissed due to a “technicality. * * *

For Respondent’s professional misconduct, the Court suspends Respondent from the practice of law for a period of 60 days, beginning October 6, 2016.

Posted by Marcia Oddi on August 26, 2016 01:28 PM
Posted to Ind. Sup.Ct. Decisions

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

For publication opinions today (1):

In Dorothy Williams v. State of Indiana , a 14-page opinion, Judge Najam writes:

Dorothy Williams appeals from her conviction for disorderly conduct, as a Class B misdemeanor, following a jury trial. She asserts on appeal that there is insufficient evidence to support her conviction because her conviction was based on political speech, which Williams raised as an affirmative defense under article 1, section 9 of the Indiana Constitution. Where, as here, the defendant is not the original subject of a police investigation, the defendant demonstrates that her expression was unambiguous political speech when she shows that the focus of her speech exclusively concerned government action. Such speech must both be directed at state actors and refer to state actors or their conduct. Speech directed toward a private party or that refers to a private party, or the conduct of a private party, is politically ambiguous for purposes of an affirmative defense under art. 1, sec. 9. And when the focus of speech is politically ambiguous, a reasonable fact-finder may reject the asserted affirmative defense.

If the defendant does not meet her burden of showing that her speech was unambiguously political, the State’s impairment of her speech—e.g., the defendant’s arrest for disorderly conduct—is constitutional so long as the State acted rationally in impairing the speech. However, if the defendant meets her burden of showing unambiguous political speech, the burden shifts to the State to demonstrate that the defendant’s exercise of her speech was an abuse of her right to that expression. While the words used by the defendant do not matter to this analysis, the State can meet this heightened burden in either of the following circumstances: (1) the defendant’s volume had more than a fleeting interference with a private interest, or (2) the defendant interfered with an ongoing police investigation.

Here, during her encounter with police at her home, Williams directed some of her speech toward her neighbors, and she repeatedly referred to herself and her own conduct during the encounter. Accordingly, the focus of her speech was politically ambiguous for purposes of the art. 1, sec. 9 affirmative defense, and the fact-finder was free to reject Williams’ affirmative defense. As her speech was politically ambiguous, the State’s impairment of her speech was constitutional so long as it was rational. And it was here: the State presented evidence that some of her neighbors, while in their homes, were actually alerted to Williams’ encounter with police by the volume of her speech, and the State further showed that numerous officers diverted their attention away from the task at hand because of Williams’ speech. Accordingly, we affirm Williams’ conviction for disorderly conduct, as a Class B misdemeanor.

NFP civil decisions today (2):

In re the Termination of the Parent-Child Relationship of: E.M., Minor Child, T.R. v. Indiana Department of Child Services (mem. dec.)

In the Matter of the Involuntary Termination of the Parent-Child Relationship of C.F. and A.F. (Minor Children), and C.H. (Mother) v. The Indiana Department of Child Services (mem. dec.)

NFP criminal decisions today (2):

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

Micah Ormsby v. State of Indiana (mem. dec.)

Posted by Marcia Oddi on August 26, 2016 01:12 PM
Posted to Ind. App.Ct. Decisions

Ind. Gov't. - "State suspends medical license of former South Bend abortion doctor"

Niki Kelly reports today in the Fort Wayne Journal Gazette - the story begins:

INDIANAPOLIS - The Indiana Medical Licensing Board early today took the medical license of a former Fort Wayne abortion doctor for failing to exercise reasonable care and violating several notice and documentation requirements.

The minimum six-month suspension for Dr. Ulrich Klopfer came after 12 hours of testimony and thousands of exhibits.

But it was a story that Klopfer told himself that struck a nerve with members of the board.

He spoke of a 10-year-old girl raped by her uncle who he performed an abortion on in an Illinois hospital but didn't notify police about the child abuse. Instead, he let her go home with her parents, who knew of the rape and refused to prosecute.

It wasn't part of the complaint filed by the Indiana Attorney General's Office but appeared to shift the case, with several members of the board bringing it up during final discussion.

Board member Rebecca Moredock-Mueller described Klopfer as having a nonchalant attitude and lacked sound medical judgment.

"The thing that bothered me most was his professional incompetence," she said.

Klopfer, 71, is likely Indiana's most prolific abortion doctor in history with numbers going into the tens of thousands of procedures in multiple counties over several decades.

Testimony during Thursday's hearing - which ended this morning - showed a man who was essentially using the same abortion and sedation procedures from the 1970s and 1980s.

Klopfer told the panel he has never lost a patient in 43 years of doing abortions and has never even had a patient go into cardiac arrest.

"Women get pregnant, men don't. We need to respect women making a decision that they think is best in their life," he said. "I'm not here to dictate to anybody. I'm not here to judge anybody."

The board specifically was bothered that he didn't give pain medication to all women - only those under 16 and those who could pay extra. And when he did sedate women he didn't have qualified staff to monitor them and didn't follow best practices for administration of the drugs and emergency procedures.

Despite this Klopfer had very few complications, which board members called amazing and lucky.

Klopfer can petition for reinstatement in six months - but only after he completes a laundry list of evaluations, continuing medical education credits and child abuse training. He also was fined $3,000.

The board found him guilty of five of nine charges. One of the charges related to not reporting performing an abortion on two girls under the age of 14 within the three-day required timeline. Two referenced sedation and medical practices; two others were whether he followed state law requiring informed consent 18 hours before the procedure on a handful of women.

"Justice has been done," said Cathie Humbarger, executive director at Allen County Right to Life. "We're glad that he's been held accountable for the inferior medical treatment that he has been responsible for over many, many years."

Indiana Right to Life was instrumental in the procedure after analyzing thousands of terminated pregnancy reports and other required documentation.

KIopfer has performed abortions in Fort Wayne, Gary and South Bend for years but is currently not practicing. All three of his abortion clinics have closed but he told the panel he wants to reopen when he can.

Mary Watts - Klopfer's attorney - said the case is about forms and not about the standard of care patients received.

"He provided good medical care for his patients and did his best to follow the law," she said. "It's a question of documentation."

She said anytime deficiencies were found he corrected the procedure.

For background, see this ILB post from Sept. 19, 2014. In addition, the South Bend Tribune today also has published the Niki Kelly story, along with a number of photos and links to earlier SBT stories.

Posted by Marcia Oddi on August 26, 2016 10:14 AM
Posted to Ind. Adm. Bd. Decisions | Indiana Government

Ind. Law - Local litigator to become Assistant Federal Defender in Tampa, Florida office

Kathleen Sweeney, a friend of the ILB and a well-known, highly skilled and effective long-time trial and appellate litigator in both the state and federal court systems, with major wins such as Wallace v. State (where our Supreme Court held in 2008 that requiring Mr. Wallace to register as a sex offender violated the prohibition against ex post facto laws) and as a member of the Marriage Equality legal team in Lee v Pence, has accepted a position as Assistant Federal Defender in the middle district of Florida in the Tampa office.

IU-McKinney Law Professor Joel Schumm has described Kathleen as "nothing short of a rock star of the criminal defense world." Her new duties begin Sept. 19th.

Posted by Marcia Oddi on August 26, 2016 09:44 AM
Posted to Indiana Law

Indiana Decisions - COA Clarifies Limits on Claims Brought under Two Environmental Statutes

Frank J. Deveau and Melissa A. Gardner, Taft Stettinius & Hollister LLP, have authored an article in Lexology on the August 4th Court of Appeals opinion (ILB summary here, 2nd case) in Schuchman/Samberg Investments, Inc. v. Hoosier Penn Oil Co. Inc., et al that begins:

[T]he Indiana Court of Appeals recently held that a landowner’s claim under Indiana’s Environmental Legal Action Statute (“ELA”), Ind. Code § 13-30-9-1 et seq., is subject to the six-year statute of limitations applicable to property damage claims and that Indiana’s Petroleum Releases Statute (“PRS”), Ind. Code § 13-24-1-1 et seq., does not create a private right of action.
The review concludes:
The court’s analysis of the PRS is helpful because it is the first published Indiana appellate court case to interpret the PRS and evaluate when a party may have a private right of action.

Posted by Marcia Oddi on August 26, 2016 09:30 AM
Posted to Ind. App.Ct. Decisions

Thursday, August 25, 2016

Ind. Law - "Just a ticket in fatal texting, driving crash"

Dave Bangert of the Lafayette Journal Courier has posted a very significant column this afternoon, with the sub-head: "As a driver in a January crash that killed a Lafayette driving instructor heads to court to face a possible $500 fine for texting, widow asks: ‘This is what Paul’s life was worth? A traffic ticket?’" Here is just one small portion of the lengthy, must-read story:

“What upsets Mrs. Foster is, she has a dead husband and the prosecutor has chosen to make it a traffic ticket,” Cooke said. “What kind of message does that send to the community? That’s a rhetorical question I’m not going to answer for Pat. He can answer it. He’s a big boy. But when we have the facts that we think we know of in this case, it is concerning to the surviving spouse and other people in the family that the kid’s going to be charged with an infraction, not an involuntary manslaughter or something like that.”

Harrington argues that the 2011 texting law is just half the equation. Even with locked-down proof that texting and driving caused a crash, would it amount to something more than a ticket? He points to this in case law.

In 2002, the Indiana Court of Appeals overturned a reckless homicide conviction of a truck driver who was speeding and ran into the rear of a slowing vehicle, sending the driver into the path of an oncoming dump truck. In Whitaker v. Indiana, the court wrote about “our state’s chosen policy regarding the criminalization of fatal traffic collisions.”

“The General Assembly has deemed that neither ‘negligent homicide’ nor ‘vehicular homicide’ is a crime in Indiana, as they are in some states,” the court ruled in Whitaker v. Indiana. “Clearly, since at least 1977 it has been public policy in the state of Indiana that automobile accident deaths caused by negligence, even gross negligence, fall outside the realm of criminal prosecution, and that the mere violation of a traffic law as a cause of a collision will not automatically raise the death to the level of a homicide.”

“If you talk to legislators, maybe it’s a matter of, ‘Where do you start, and where do you stop,’ on the scale of distraction,” Harrington said. “It really is just a question of volume — everyone has a cellphone now. … Legislators know these (court) decisions are out there. And they always have the ability to amend laws or make laws to make that a crime if they want to. … Due to the lack of legislation, this seems to be the accepted standard.”

Posted by Marcia Oddi on August 25, 2016 04:57 PM
Posted to Indiana Law

Courts - CA 6 voids Michigan sex offender registry for imposing unconstitutionally retroactive punishment

Jonathan H. Adler writes in The Volokh Conspiracy:

Today the U.S. Court of Appeals for the 6th Circuit held that recent amendments to Michigan’s Sex Offender Registration Act (SORA) are unconstitutional because they impose retroactive punishment on sex offenders in violation of the Constitution’s prohibition on ex post facto laws. Among other things, the plaintiffs argued that amendments to Michigan’s SORA increased the severity of its requirements after their convictions imposed retroactive punishment. In John Does #1-5 v. Snyder, the Sixth Circuit agreed.
From Douglas A. Berman in the Sentencing Law Blog:
In a significant panel ruling today, the Sixth Circuit has concluded in Does v. Snyder, No. 15-1536 (6th Cir. Aug. 25, 2016) (available here) that Michigan's amendments to its Sex Offender Registration Act (SORA) "imposes punishment" and thus the state violates the US Constitution when applying these SORA provisions retroactively.
Both blog posts quote extensively from the opinion.

Posted by Marcia Oddi on August 25, 2016 04:17 PM
Posted to Courts in general

Ind. Decisions - Court of Appeals issues 2 opinion(s) today (and 9 NFP memorandum decision(s))

For publication opinions today (2):

In Estate of Kelly Ecker, by its Personal Representative, Patricia Ann Leturgez v. Estate of George Scott Samson, an 11-page opinion, Judge Bailey writes:

The Estate of Kelly Ecker, by its Personal Representative, Patricia Ann Leturgez (“the Ecker Estate”), appeals a summary judgment order denying the Ecker Estate’s motion for summary judgment against the Estate of George Scott Samson (“the Samson Estate”) and granting the summary judgment motion of Intervenors Jennifer Samson, Maria Sa mson, and Katherine Samson (“the Samson Daughters”). The Ecker Estate presents the sole issue of whether the trial court erred as a matter of law in determining that the George S. Samson M.D. Profit Sharing Plan and Trust (“the Profit Sharing Plan”) was, pursuant to Indiana Code Section 32-17-13-1(b), property specifically excluded from the definition of a “nonprobate transfer” recoverable to pay estate claims. We affirm. * * *

Ultimately , the Ecker Estate asks that we provide restriction s upon the broad exclusionary language of Indiana Code Section 32-17-13-1(b). However, courts may not engraft new words onto a statute or add restrictions where none exist. Kitchell v. Franklin , 997 N.E.2d 1020, 1026 (Ind. 2013). The Profit Sharing Plan falls within the exclusionary language of 32-17-13 -1(b) and is not recoverable by the personal representative of the Samson Estate for the payment of allowable probate claims. Although we are mindful of the tragic circumstances preceding this litigation, the law compels this result.

In In re the Scott David Hurwich 1986 Irrevocable Trust Scott D. Hurwich v. Stacey R. MacDonald, a 13-page opinion, Judge Bradford writes:
Appellant-Plaintiff Scott Hurwich is the settlor and beneficiary of the Scott David Hurwich 1986 Irrevocable Trust (“the Trust”). Appellee-Defendant Stacey R. MacDonald served as trustee of the Trust until her removal at Hurwich ’ s request on November 28, 2012. Hurwich filed aHurwich’s request on November 28, 2012. Hurwich filed a complaint against MacDonald which alleged that MacDonald mismanaged Trust assets while acting as trustee. MacDonald filed a motion to dismiss Hurwich’s complaint which the probate court granted. Hurwich filed a motion to reconsider which he later requested to be treated as a motion to correct error. Over the following six months, the probate court held two hearings on the motion to reconsider and the parties submitted several briefs in support of their positions. The probate court never made a ruling on the motion and Hurwich filed his appeal in February of 2016. On appeal, the parties dispute (1) whether Hurwich timely filed his notice of appeal, and (2) whether the probate court erred in granting MacDonald’s motion to dismiss. We reverse the probate court’s order dismissing Hurwich’s claims. complaint against MacDonald which alleged that MacDonald mismanaged Trust assets while acting as trustee. MacDonald filed a motion to dismiss Hurwich's complaint which t he probate court granted. Hurwich filed a motion to reconsider which he later requested to be treated as a motion to correct error. Over the following six months, the probate court held two hearings on the motion to reconsider and the parties submitted several briefs in support of their positions. The probate court never made a ruling on the motion and Hurwich filed his appeal in February of 2016. On appeal, the parties dispute (1) whether Hurwich timely filed his notice of appeal, and (2) whether the probate court erred in granting MacDonald's motion to dismiss. We reverse the probate court's order dismissing Hurwich's claims.
NFP civil decisions today (1):

Imad A. Elayan v. Vincent M. Campiti (mem. dec.)

NFP criminal decisions today (8):

William Verlin Martz v. State of Indiana (mem. dec.)

Robert Smith v. State of Indiana (mem. dec.)

David Bryan Cunningham v. State of Indiana (mem. dec.)

Maurice Louis McCoy v. State of Indiana (mem. dec.)

Chanse T. Starr v. State of Indiana (mem. dec.)

Anita Rodriguez v. State of Indiana (mem. dec.)

Latroy Maxwell v. State of Indiana (mem. dec.)

Dameco Brent v. State of Indiana (mem. dec.)

Posted by Marcia Oddi on August 25, 2016 11:02 AM
Posted to Ind. App.Ct. Decisions

Ind. Courts - "State could limit Twitter use in courtrooms"

That is the headline to Dan Carden's story today in the NWI Times, about yesterday's Court of Appeals decision in Christopher Compton v. State of Indiana (see ILB summary here, 2nd opinion). Some quotes :

A three-judge panel of the Indiana Court of Appeals called Wednesday for the Hoosier legal community to re-evaluate its understanding of “broadcasting,” and decide how to regulate courtroom use of social media platforms by spectators and trial participants — including jurors.

“When the ethics rules regarding ‘broadcasting’ were written, social media was a vastly different medium than today,” wrote Judge Margret Robb.

“Given the rapidly evolving relationship between Twitter and our judicial system, we believe it is time for all appropriate judicial, attorney and ethics committees to come together to specifically address these concerns.”

The Twitter issue was raised in an appeal of an Evansville triple murder conviction.

Christopher Compton, 34, was sentenced last year to 200 years in prison for starting a 2014 house fire that killed Keri Jones, 28, Jazmine Jones, 3, and Donald Lankford, 76.

During Compton’s trial, Vanderburgh Superior Judge Robert Pigman authorized a local reporter to tweet about courtroom proceedings after he advised jurors and witnesses not to use the internet to gather information about the case.

Compton argued in his appeal that the live tweeting was equivalent to broadcasting the trial, which generally is not permitted in Indiana, and that it violated his right to due process by inherently prejudicing the jury against him.

The appeals court unanimously rejected the argument that tweeting is inherently prejudicial, since the U.S. Supreme Court has declined to find that even television broadcasting of a trial is automatically contrary to a defendant’s interests.

It also affirmed Compton’s convictions and sentence after finding no indication that Compton was harmed in any way by the live tweeting and that the evidence against him was overwhelming.

At the same time, the court left unresolved the question of whether live tweeting is “broadcasting,” while also noting that Twitter use by prosecutors and jurors in other states has led to mistrials.

“The pretrial instructions in this case did not instruct the jury not to refrain from seeking information through social media applications. Rather, the instructions merely instructed the jurors not to receive information from the internet,” Robb said.

“Given how easily one may access the internet in this technological age, we fear such an instruction may not be specific enough to deter jurors from using Twitter now and in the future.”

As a result, she said, the state court system needs to decide how to approach the use of social media during criminal trials.

ILB: But is the issue the medium, or the message? News of the trial will be "broadcast": in the newspaper, via the airwaves, and online. This was a multi-day trial, each day's proceedings were likely reported on the nightly news and in the morning paper. Reporters may have called in stories during breaks in proceeding during the day. Or they may have emailed their editors. Or they may have tweeted during breaks. Or they may have, if permitted by the court, tweeted or blogged, or even emailed their editors, while sitting in the courtroom. Is it reasonable to try to distinguish promulgation of the message from the route taken or the medium used? Or to restrict the messenger?

Posted by Marcia Oddi on August 25, 2016 10:08 AM
Posted to Indiana Courts

Ind. Decisions - "No appeal in Indiana woman's overturned feticide conviction"

Updating this ILB post from Aug. 23rd ("Purvi Patel could walk free by September in feticide case"), Rick Callanhan of the AP reports in the Indianapolis Star:

INDIANAPOLIS (AP) — The attorney for an Indiana woman whose feticide conviction for a self-induced abortion was overturned said Tuesday he's pleased the state's attorney general decided not to appeal that ruling and hopes she's freed soon from prison.

A deadline for the attorney general's office to ask the Indiana Supreme Court to take up the state Court of Appeals ruling that reversed Purvi Patel's feticide conviction passed Monday without such a request. Patel's attorneys also did not ask the court to weigh in on the July ruling. * * *

Patel's attorney, Larry Marshall, said the reasoning laid out in the appeals court's unanimous ruling "was really unassailable, so I'm very pleased the state didn't drag things out just for the sake of dragging things out." * * *

In a statement, Attorney General Greg Zoeller said the state decided not to seek a rehearing before the appeals court or ask Indiana's high court to consider the case "after carefully reviewing" the ruling and consulting with local prosecutors.

He said they "concluded that further appeal would not be productive and that resolving the case now will serve the interests of justice."

Marshall said he expects the appeals court decision to be certified within about 10 days. After that, the St. Joseph County trial court judge will set a resentencing hearing.

If that judge sentences Patel to the maximum three years, Marshall said she actually would face an 18-month sentence because of credit for good behavior.

Under that sentence, Patel could potentially be released as early as late September because she has already served about 17 months, Marshall said.

"We're hoping for a speedy resentencing and for Purvi's speedy release," he said.

Posted by Marcia Oddi on August 25, 2016 09:49 AM
Posted to Ind. App.Ct. Decisions

Wednesday, August 24, 2016

Courts - "Is court deference to federal agencies unconstitutional?" - Chevron ...

Alison Frankel's "On the Case" Reuters column begins:

(Reuters) – The first thing I want to tell you about a concurrence by Judge Neil Gorsuch of the 10th U.S. Circuit Court of Appeals in Gutierrez-Brizuela v. Loretta Lynch is to read it yourself. Rarely will you run across such an elegant legal essay, closely argued and packed with citations yet as accessible as good journalism. If the whole judging thing doesn’t work out for Gorsuch, who is often named as a potential U.S. Supreme Court pick in a Republican administration, he has a real future as a law blogger.

The judge took the opportunity of a complicated immigration case to write about the tension between separation of powers doctrine and the Supreme Court’s 1984 opinion in Chevron v. Natural Resources Defense Council, which directed courts defer to executive-branch agencies in the interpretation of ambiguous statutes. The case involved a foreign national who sought legal residency in the United States after entering the country more than once without the proper authorization. Until 2007, the U.S. Attorney General had the discretion, under precedent in the 10th Circuit, to consider applications by people in that category, despite a provision in federal immigration law that required a 10-year waiting period outside of U.S. borders for those who entered the country illegally on more than one occasion.

Posted by Marcia Oddi on August 24, 2016 04:31 PM
Posted to Courts in general

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

The ILB normally doesn't summarize immigration cases, but given the current high level of interest in immigation enforcment, this case may prove instructive.

Some quotes from an immigration decision from the 7th Circuit, involving an Indiana resident:

Since coming to the United States from Ecuador without authorization in 2000, Arias has worked for the Grabill Cabinet Company in Grabill, Indiana. The company called Arias an “excellent employee” in a letter Arias submitted to the immigration court in support of her application for cancellation of removal. To work for Grabill Cabinet, Arias provided a false social security number. She has presented evidence that she has filed an income tax return for every year she has been in the United States through 2012.

Arias has also raised a family in the United States. Arias and her husband have been married since 1989. Their three children have grown up in the United States. The two younger children, five and fourteen years old, are United States citizens. Her oldest child, twenty‐six years old, was born in Ecuador but has received relief from removal through the Deferred Action for Childhood Arrivals program.

In 2010, Arias was charged in federal court with falsely using a social security number to work for Grabill Cabinet in violation of 42 U.S.C. § 408(a)(7)(B). Section 408(a)(7)(B) makes it a crime to misrepresent a social security number to be one’s own to obtain a benefit or “for any other purpose.” Arias pled guilty and was sentenced to just about the lightest felony sentence one is likely to find in modern federal prac‐tice: one year of probation and a $100 special assessment. After Arias completed her probation successfully, she received employment authorization and Grabill Cabinet rehired her. In 4 No. 14‐2839 the letter from the company that Arias submitted to the immigration court, Grabill Cabinet said that it “did not have any problems” welcoming her back to her old job. Her indictment charged Arias with an “intent to deceive Grabill,” although it is evident that Grabill itself did not have a problem with Arias’s deception and does not view itself as a victim. There is no indication in the record that Arias has broken any state or federal laws other than her unauthorized immigration into this country and false use of a social security number to work.

In 2010, Arias received a notice to appear for removal proceedings. She admitted removability but applied for cancellation of removal under 8 U.S.C. § 1229b(b)(1). The Attorney General may cancel the removal of unauthorized immigrants who have been in the United States for at least ten years and who can show that their removal would cause “exceptional and extremely unusual hardship” to their children, spouses, or parents who are United States citizens, among other requirements. Id.

Such discretionary cancellation is barred, however, if the immigrant has been convicted of a “crime involving moral turpitude.” 8 U.S.C. §§ 1182(a)(2)(A)(i)(I), 1229b(b)(1)(C). “Moral turpitude” is not defined in the statute. The Board and federal courts have labored for generations to provide a work‐ able definition. See generally Jordan v. De George, 341 U.S. 223, 227–29 (1951) (holding that conspiracy to evade payment of liquor tax was crime involving moral turpitude, and noting that all varieties of fraud are treated likewise); id. at 232–45 (Jackson, J., dissenting) (“moral turpitude” is too vague to support deportation).

The immigration judge held that Arias’s crime of conviction was a crime involving moral turpitude. The judge relied No. 14‐2839 5 on two of this circuit’s cases: Marin‐Rodriguez v. Holder, 710 F.3d 734 (7th Cir. 2013), and Miranda‐Murillo v. Holder, 502 F. App’x 610 (7th Cir. 2013), a non‐precedential order. A one‐member panel of the Board affirmed. * * *

Arias petitioned for judicial review of the Board’s decision denying cancellation of removal. Under 8 U.S.C. § 1252(a)(2)(D), we have jurisdiction to review the legal question whether a crime involves moral turpitude. * * *

The issue is whether a violation of 42 U.S.C. § 408(a)(7)(B) is a crime involving moral turpitude. We have not decided the issue in a precedential opinion, and other circuits are split.

Judge Hamilton authored the 28-page opinion in Maria Arias v. Loretta E. Lynch. Judge Posner's concurring opinion begins on p. 16:
I agree that we should grant the petition and therefore remand the case to the Board of Immigration Appeals for reconsidera‐ tion of the Board’s refusal to cancel the order that the peti‐ tioner be removed (deported) from the United States. I do not however agree with the respect that Judge Ham‐ ilton’s opinion accords the concept of “moral turpitude.” It is preposterous that that stale, antiquated, and, worse, mean‐ ingless phrase should continue to be a part of American law. Its meaninglessness is well illustrated by this case; and even if it is to be retained in immigration law it was misapplied by the Board of Immigration Appeals. The concept plays a particularly malign role in immigra‐ tion adjudication, as this case illustrates, because conviction of a crime involving moral turpitude bars the Attorney Gen‐ eral from canceling the removal, or adjusting the status, of an alien. See 8 U.S.C. §§ 1229b(b)(1)(C), 1182(a)(2)(A)(i)(I). * * *

If anything is clear it’s that “crime of moral turpitude” shouldn’t be defined by invoking broad categorical rules that sweep in harmless conduct. Yet that’s what the Board of Immigration Appeals did in this case, in upholding the im‐ migration judge’s conclusion that the petitioner had commit‐ ted a crime of moral turpitude; it said that a violation of 42 U.S.C § 408(a)(7)(B) is “categorically a crime involving moral turpitude.”

Posted by Marcia Oddi on August 24, 2016 04:08 PM
Posted to Ind. (7th Cir.) Decisions

Environment - "New vessel a friend to Great Lakes environment"

The caption to the photo says it all: "Officials with the Port of Indiana-Burns Harbor welcomed the Federal Caribou, a new generation, oceangoing vessel that reportedly emits fewer greenhouse gases, uses less fuel and flushes out more invasive fish species than similar ships."

A few quotes from the long story in the Chicago Tribune, reported by Karen Caffarini:

The $25 million bright red ship is one of seven oceangoing lakers owned by Montreal-based Fednav Limited that is equipped with a new ballast water treatment system.

Fednav President and co-CEO Paul Pathy said the new system treats the ballast water twice for greater protection of the Great Lakes. He said the dual treatment, installed by JFE Engineering Corp., filters out any organisms and provides chlorine disinfection.

While the ship is on its fourth trip, this is its maiden voyage to Indiana, according to Capt. Rajat Roychowdhury.

Pathy said Fednav opted to use the new water ballast system in its seven new vessels before it is required to do so by any country or state and intends to add the system to all its new vessels going forward.

He said each system costs about $500,000. * * *

Carol Comer, with Indiana Department of Environmental Management, said with these new vessels Fednav has shown that a company can be both economically successful and environmentally responsible at the same time.

She said the new ballast system is critical to the Great Lakes, which has endured such invasive species as zebra mussels and lamprey brought in by oceangoing vessels.

Comer said if more companies follow Fednav's example, the healthier the Great Lakes will be. But she added this is no quick fix.

"It will take some time to recover from some of the damage that was done," she said.

The NWI Times yesterday had a story with photos of the ship itself, the Federal Caribou.

Posted by Marcia Oddi on August 24, 2016 03:39 PM
Posted to Environment

Ind. Decisions - Court of Appeals issues 4 opinion(s) today (and 15 NFP memorandum decision(s))

For publication opinions today (4):

In Brian Fuchs v. Riverbend Assisted Living , an 11-page opinion, Judge Barnes writes:

Brian Fuchs appeals the trial court’s issuance of three workplace violence restraining orders on behalf of employees of Riverbend Assisted Living (“Riverbend”). We affirm.

As in Torres, we conclude that Fuchs’s conduct qualifies as a credible threat of violence with respect to Wheeler, Rice, and Smith. Fuchs repeatedly harassed, screamed at, and intimidated Riverbend employees. Although Fuchs may have been protesting the care his mother was receiving, his behavior went far beyond advocating for his mother. Repeatedly screaming, threatening, cursing, getting in employees’ faces, and backing employees into corners does not serve a legitimate purpose. Further, Rice and Smith testified that they were scared of Fuchs, and Wheeler testified that she was afraid Fuchs was going to initiate a physical altercation with her. Given Fuchs’s repeated conduct, a reasonable person would fear for his or her safety. Fuchs’s arguments to the contrary are merely requests that we reweigh the evidence, which we cannot do. Riverbend presented sufficient evidence to demonstrate that the employees suffered credible threats of violence from Fuchs at their place of employment. The trial court properly entered the workplace violence restraining orders.

In Christopher Compton v. State of Indiana , a 13-page opinion, Judge Robb writes [ILB emphasis]:
Following a trifurcated jury trial, Christopher Compton was convicted of three counts of felony murder and found to be an habitual offender. Compton appeals, raising two restated issues: (1) whether Compton was deprived of due process when the trial court allowed the media to Tweet live updates of his trial from the courtroom, and (2) whether the trial court abused its discretion in admitting evidence of Compton’s incriminatory statements. Concluding the trial court did not deprive Compton of due process nor did it err in admitting evidence of Compton’s statements, we affirm. * * *

Compton contends the trial court violated Rule 2.17 of the Code of Judicial Conduct in allowing the media to Tweet live updates of his trial from the courtroom, arguing Tweeting live updates of his criminal trial amounts to inherently prejudicial “broadcasting” that violates his right to due process. The State counters Tweeting does not amount to broadcasting, and even if so, Compton has not demonstrated he suffered any prejudice.5 Because broadcasting a defendant’s trial is not inherently prejudicial and Compton has not demonstrated he suffered prejudice as a result of the alleged broadcasting, we need not address whether Tweeting live updates of a criminal trial is deemed “broadcasting.” * * *

As noted above, it is unnecessary to decide whether Twitter is “broadcasting,” because even assuming it is, broadcasting is not inherently prejudicial and Compton has shown no specific prejudice to him in this case. * * * [P]rior to trial, the trial court instructed the jury not to receive information about the case from any source, including internet sources; the jury was sequestered during the Twitter discussion; the trial court instructed the media not to Tweet in a manner that would disrupt proceedings; the trial court instructed the attorneys to notify their respective witnesses not to use Twitter until after they testified; and there is no evidence any witnesses or jurors viewed any Tweets pertaining to the trial. We conclude Compton was not deprived of due process when the media was allowed to Tweet live updates of his criminal trial from the courtroom.

[ILB: But see lengthy footnote on p. 9] - begins "we take this opportunity to express our concern as to the impact social media applications have on due process and trials."]

In J.J. v. State of Indiana , an 8-page opinion, Judge Najam writes:
J.J., a minor, appeals the juvenile court’s true finding for dangerous possession of a firearm as a Class A misdemeanor if committed by an adult. The only issue he raises on appeal is whether the police had reasonable suspicion to stop and search him. We affirm and remand with instructions.
In Thomas Pinner v. State of Indiana , a 14-page, 2-1 opinion, Judge May writes:
Thomas Pinner appeals the denial of his motion to suppress. As no reasonable suspicion justified the investigatory stop, we reverse. * * *

As the officers did not have reasonable suspicion to stop Pinner and this was not a consensual encounter, the trial court abused its discretion when it denied his motion to suppress. As such, we reverse.

Baker, J., concurs.
Brown, J., dissents with separate opinion. [that begins at p. 8, and concludes] I would find that “the degree of concern, suspicion, or knowledge that a violation has occurred” was high given that the officers had received a description of a man and his companion, in which a cab driver expressed fear of being robbed by the man, that the officers observed Pinner and his companion who fit the description, that, when asked if he was carrying a gun Pinner shuffled nervously and was hesitant to answer before ultimately lying and saying that he did not have a gun, and that the officers promptly observed that, indeed, he did have a gun on his person. I would find that the degree of intrusion was especially low, given that one of the officers merely asked Pinner if he could stand up for him before observing the gun on his person. I would find that the extent of law enforcement needs was strong in securing the gun upon observing that Pinner was armed after acting nervous and stating that he was not armed. Thus, I would find that given the totality of the circumstances, the interaction between the officers and the confiscation of Pinner’s gun did not violate Pinner’s rights under Article 1, Section 11 of the Indiana Constitution.

I believe that Pinner’s motion to suppress was correctly denied and would affirm the trial court.

NFP civil decisions today (5):

Mark A. Laesch v. Kathryn B. Laesch (mem. dec.)

Timothy B. Hopper v. Angela C. Hopper (mem. dec.)

Jack Gable and Janet Gable v. Schuler Company, Inc. (mem. dec.)

Katrina Morgan v. Lake County Juvenile Center, Lake Superior Court, Juvenile Division and Juvenile Division Judge (mem. dec.)

In the Matter of J.J., Child in Need of Services E.B. (Mother) v. Marion County Department of Child Services, Child Advocates, Inc. (mem. dec.)

NFP criminal decisions today (10):

Matthew Keene Goodwin v. State of Indiana (mem. dec.)

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

Gerald Rachell v. State of Indiana (mem. dec.)

Christian Duckworth v. State of Indiana (mem. dec.)

Terry Austin v. State of Indiana (mem. dec.)

Joe E. Mourey v. State of Indiana (mem. dec.)

Charles Alan Keel v. State of Indiana (mem. dec.)

Octavius Morris v. State of Indiana (mem. dec.)

James Alexander v. State of Indiana (mem. dec.)

Dominique D. Randolph v. State of Indiana (mem. dec.)

Posted by Marcia Oddi on August 24, 2016 11:40 AM
Posted to Ind. App.Ct. Decisions

Tuesday, August 23, 2016

Ind. Gov't. - "I also question whether a law enforcement agency can justify a $150 fee for a copy"

That is a quote from a comment by Steve Key of the Hoosier State Press Association that the ILB posted this morning.

The Evansville Courier & Press story by Shannon Hall that appeared in this morning's paper addresses the same issue. It begins:

It all comes down to cost.

Evansville Police Department officials say they want to be transparent with body and dash cameras, but the cost to adhere to the new body camera law will fall on the person requesting to view or copy a recording.

Evansville and other Indiana police departments say they don't want to deter the public from asking for body camera footage, but the costs to store and obscure the footage according to state law makes it too steep to hand out all footage for free.

More from the story:
"It's going to be substantial," Pugh said. "It's going to be something unforeseen we're going to have to purchase. The law has put a financial burden on the department's budget that we weren't expecting."

The department plans to charge a $150 fee for a copy of footage, the maximum amount an agency can charge. The main reason the department plans to charge the maximum is because of the expense of storing footage. The new law requires local departments to store all footage for 190 days or for two years if requested.

Because the Evansville police officers turn on their body cameras whenever they interact with the public, there’s hours upon hours of footage that will be stored. * * *

If a person requests a copy of body camera footage for a specific incident, it may actually cost the person more than the $150 fee. Pugh said if multiple officers are recording the incident, then each recording will cost $150.

"We're following the law the way it was laid out by the General Assembly," Pugh said. "We're being as transparent as the law allows us to be."

In the past, the Evansville Police Department has released some body camera footage to the public, and Pugh said he doesn't think that will change. But what is being released for free will be up to the police department.

"We don't think it's a perfect law in both ways," Pugh said. "I know some people are going to say that the fee we're charging, that somehow we're trying not to be transparent, but hey ... budgets are tight. We've got to somehow recover that."

Another big expense for the department will be for software to obscure some images on certain footage. Some body cameras were created to be tamper proof, Chandler said.

There is much more to read in the lengthy story.

Posted by Marcia Oddi on August 23, 2016 02:39 PM
Posted to Indiana Government

Ind. Decisions - 7th Circuit decides one Indiana case today, regarding an effort to intervene in forfeiture actions based on ownership by the collective membership of the Outlaws

In USA v. Joshua N. Bowser (SD Ind., Pratt), a 12-page opinion, Judge Rovner writes:

This appeal involves the government’s efforts to seize personal property bearing the insignia of the Outlaws Motorcycle Club (the “Outlaws”), and the effort of a representative of the Outlaws to intervene to prevent those forfeitures. The forfeiture actions stemmed from criminal cases brought against a number of Outlaws members, including all members of the Indianapolis chapter of the Outlaws. * * *

Affirmed.

Posted by Marcia Oddi on August 23, 2016 02:23 PM
Posted to Ind. (7th Cir.) Decisions

Ind. Decisions - Court of Appeals issues 3 opinion(s) today (and 6 NFP memorandum decision(s))

For publication opinions today (3):

In Kyleigh Nolan v. Clarksville Police Department and Town of Clarksville, Indiana, a 14-page opinion, Chief Judge Vaidik writes:

Nineteen-year-old Kyleigh Nolan volunteered to play the role of a hostage in a training exercise being conducted by the Clarksville Police Department. She was injured and later sued the police department and the Town of Clarksville. The trial court granted summary judgment for the defendants after finding that Nolan had failed to provide sufficient pre-suit notice of her claim pursuant to the Indiana Tort Claims Act (“ITCA”). While we agree that Nolan failed to comply with the statutory-notice requirement, we also conclude that there is a genuine issue of material fact as to whether the defendants, by virtue of their own conduct following the incident, are estopped from asserting Nolan’s noncompliance as a defense. We therefore affirm in part and reverse in part the grant of summary judgment in favor of the defendants. On remand, Nolan is entitled to present her estoppel claim to the jury at trial. * * *

We recognize that our Supreme Court previously held that an estoppel claim in the ITCA-notice context must be resolved by the trial court before trial. Powell, 393 N.E.2d at 192; see also Allen, 496 N.E.2d at 417 (relying on Powell in reversing summary judgment on plaintiff’s estoppel claim and remanding for determination by “trial judge as trier of fact”). However, we see no basis on which to treat Nolan’s estoppel claim any differently than the Supreme Court treated the fraudulent-concealment/estoppel claim made by the plaintiffs in Lyons.

Affirmed in part, reversed in part, and remanded for further proceedings.

In Tyrone Grayson v. State of Indiana, a 7-page opinion with a pro se defendant, Chief Judge Vaidik writes:
The Indiana Parole Board alleged that Tyrone Grayson violated his parole by committing a new offense. The parole board alleged that Grayson was on parole for one particular sentence when he committed the new offense. After Grayson’s parole was revoked, he filed an application for a writ of habeas corpus alleging that he was not on parole for that sentence when he committed the new offense. Realizing a mistake in the records, the Indiana Department of Correction fixed the records to show that Grayson was on parole for a different sentence when he committed the new offense. Without a new parolerevocation hearing, the State submitted to the trial court corrected records to support Grayson’s parole revocation, and the trial court—construing Grayson’s habeas application as a petition for post-conviction relief—found that Grayson was not entitled to relief.

Because parolees charged with violations of parole are within the protection of the Due Process Clause of the Fourteenth Amendment, we find that Grayson was entitled to an opportunity to be heard on the allegation that he violated parole for the correct sentence. We therefore reverse.

In Jay Lynn v. State of Indiana , a 10-page opinion, Judge Crone writes:
Jay Lynn appeals his convictions, following a jury trial, for battery and disorderly conduct, both as class B misdemeanors. He contends that the trial court committed fundamental error regarding a preliminary jury instruction and that the State did not present sufficient evidence to support his disorderly conduct conviction. Finding no fundamental error and concluding that the State presented sufficient evidence, we affirm. * * *

This evidence unquestionably supports a reasonable inference that Lynn engaged in a hostile encounter with Johnson that was both physical and verbal in nature. Thus, the evidence is sufficient to establish that Lynn engaged in fighting. His arguments on appeal are merely a request that we reweigh the evidence in his favor, and we will not. The State presented sufficient evidence to sustain Lynn’s conviction for disorderly conduct.

NFP civil decisions today (4):

In re the Paternity of A.D.: Abram M. Dwyer v. Lindsy L. (Redden) Eickhoff (mem. dec.)

Jose Menendez v. CACH, LLC (mem. dec.)

Michael Hale v. Dr. Lolit Joseph, Nurse Lesa Wolfe, and Nurse Teresa Lennings (mem. dec.)

K.S. v. D.S. (mem. dec.)

NFP criminal decisions today (2):

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

Brian K. Bell v. State of Indiana (mem. dec.)

Posted by Marcia Oddi on August 23, 2016 12:45 PM
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Supreme Court decides one today, re what constitutes refusal to take a chemical test

In Kristy Burnell v. State of Indiana, an 8-page, 5-0 opinion, Justice Rucker writes:

The driving privileges of a motorist were administratively suspended on grounds the motorist refused to take a chemical test. Upon judicial review the trial court declined to set aside the suspension. We affirm the trial court’s judgment. * * *

Burnell appealed and in a divided opinion, with each judge writing separately, the Court of Appeals affirmed the judgment of the trial court. * * *

The record here shows Burnell clearly heard and understood the officer’s offer of the opportunity to take a chemical test. She thus was capable of refusal. And although first declaring “yeah, I guess I gotta can take it,” Burnell nonetheless stepped away from the officer twice, 8 justifying a reasonable person in the officer’s position to believe that Burnell manifested an unwillingness to submit to the test. We are not unmindful the evidence in this case presents conflicting inferences. But in appealing from a negative judgment Burnell has the burden of demonstrating the evidence leads to but one conclusion and the trial court reached an opposite conclusion. She has failed to carry this burden.

Conclusion. We affirm the judgment of the trial court.

Posted by Marcia Oddi on August 23, 2016 12:31 PM
Posted to Ind. Sup.Ct. Decisions

Ind. Decisions - "Purvi Patel could walk free by September in feticide case"

Christian Sheckler of the South Bend Tribune reports today in a story that begins:

Purvi Patel, the Granger woman whose feticide conviction was overturned by the Indiana Court of Appeals last month, may soon walk free after the state chose not to seek an opinion from the Indiana Supreme Court, her lawyer said.

Sentencing guidelines suggest Patel could be released by the end of September. The latest news brings closer the conclusion of a case that drew national headlines and sparked an intense reaction among both anti-abortion activists and those who feared authorities could use the state's feticide law to punish women for their own abortions.

Monday's deadline passed without either side asking the high court to take up the case, Patel's lead attorney, Stanford University law professor Lawrence Marshall, told The Tribune by phone Tuesday morning.

Here are earlier ILB entries on the Patel case.

Posted by Marcia Oddi on August 23, 2016 12:24 PM
Posted to Ind. App.Ct. Decisions

Environment - "EDITORIAL: Time for answers in E.C. lead crisis"

From the start of a NWI Times editorial yesterday:

For most of the summer, we've seen a barrage of information released by federal and local government officials regarding alarming lead levels in the soil of a low-income East Chicago neighborhood.

What we now need to see is concerted effort to hold accountable those who allowed city residents to reside in what already was known as an EPA Superfund site because of the contamination.

We need to know why it seemingly took so long for the EPA to communicate the toxic lead levels to the city and its residents — and why an elementary school was constructed within the Superfund site eight years ago.

A bright side to this dire health fiasco has been the quick response of Mayor Anthony Copeland's administration after learning from the EPA in May about the untenable lead levels in the West Calumet Housing Complex.

Copeland's office showed appropriate urgency and leadership in promptly issuing letters to affected residents that it would be safest for them to relocate.

And the city appears to be diligently working with the U.S. Department of Housing and Urban Development to secure relocation vouchers for as many as 1,200 residents.

But why did it take so long for this important information to land in the hands of East Chicago leaders and residents?

See also this ILB post from August 16th, and this one from August 22nd.

Posted by Marcia Oddi on August 23, 2016 09:40 AM
Posted to Environment

Ind. Gov't. - Updating "Citing new law, Evansville police increase costs to view, obtain body camera footage"

The original ILB post, referencing a story in the Evansville Courier & Press, appeared on Aug. 17th. Later that same day, the ILB posted a note from a reader, pointing to the statute to question the legality of a charge of $37.50 per hour to watch the recording at the police station.

On August 18
, in a post headed "Evansville Police Dept. backtracks on body camera viewing fee," the ILB quoted a new C&P story that credited the ILB post for the removal of the viewing charge.

Yesterday, the ILB received a note from Steve Key, counsel to the Hoosier State Press Association, that raises an additional issue:

I also question whether a law enforcement agency can justify a $150 fee for a copy. A clerk getting $20 a hour pay would have to spend 7 ½ hours creating the copy to reach the $150 cap (not adding in cost of disc or memory stick police put copy on or 5% upcharge allowed under “direct cost” definition.

If that’s the usual time frame, then law enforcement agencies and/or prosecutors are going to be overwhelmed because a defense attorney is always going to ask for copies of police body camera video as well as all private and public surveillance camera video camera footage that might become evidence in a criminal case.

I think Evansville police committed the same error a lot of departments will – they read $150 cap and think they can charge it without taking into account the “direct costs” limitation that first applies.

Posted by Marcia Oddi on August 23, 2016 09:08 AM
Posted to Indiana Government

Monday, August 22, 2016

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

In Jimmie Poe, Sr. v. Leann LaRiva (SD Ind., Lawrence), a 10-page opinion, Judge Kanne writes:

In 1996, a jury convicted Petitioner Jimmie Poe of several narcotics‐related offenses, including engaging in a continuing criminal enterprise (“CCE”). On June 1, 1999, the Supreme Court decided Richardson v. United States, 526 U.S. 813 (1999), which rendered the CCE jury instructions used in Poe’s trial erroneous.

Poe petitioned, on July 16, 1999, for a writ of habeas corpus, pursuant to 28 U.S.C. § 2241, challenging his conviction under Richardson. Fourteen months later, the district court dis‐ missed Poe’s § 2241 petition without prejudice, because he should have filed under 28 U.S.C. § 2255. On June 18, 2001, Poe petitioned for a writ of habeas corpus, pursuant to § 2255, which was subsequently denied as time‐barred. We affirmed the district court’s denial of Poe’s § 2255 petition in Poe v. United States, 468 F.3d 473 (7th Cir. 2006).

On October 28, 2014, Poe filed a new § 2241 petition, chal‐ lenging his conviction and sentence in light of Alleyne v. United States, 133 S. Ct. 2151 (2013). The district court denied his petition, again for not filing it under § 2255, and he ap‐pealed. We affirm.

Posted by Marcia Oddi on August 22, 2016 07:18 PM
Posted to Ind. (7th Cir.) Decisions

Ind. Decisions - SD Ind. issues preliminary injunction on behalf of a Florida-based manufacturer of nicotine-containing e-liquids

Here is the 38-page order in Goodcat, LLC v. Cooks, et al., issued Aug. 19th by Chief Judge Richard L. Young, United States District Court, Southern District of Indiana. In brief:

ORDER granting GoodCat's [9] Motion for Preliminary Injunction. The court hereby ENJOINS the ATC from enforcing Indiana Code §§ 7.1-7-2-14, 7.1-7-2-22(3)(B), and 7.1-7-4-1(d) against GoodCat. The court further ORDERS the ATC to issue GoodCat a manufacturing permit until GoodCat's claims reach final disposition.

For background, start with this ILB post from June 30th.

Posted by Marcia Oddi on August 22, 2016 02:22 PM
Posted to Ind Fed D.Ct. Decisions

Ind. Decisions - Court of Appeals issues 3 opinion(s) today (and 3 NFP memorandum decision(s))

For publication opinions today (3):

In David Heber v. Indianapolis Metropolitan Police Department, and City of Indianapolis Office of Corporation Counsel, a 6-page opinion, Judge Barnes writes:

David Heber appeals the trial court’s dismissal of his complaint against the Indianapolis Metropolitan Police Department (“IMPD”) and the Office of Corporation Counsel of the City of Indianapolis (“OCC”) (collectively “the Appellees”). We reverse and remand

The sole restated issue is whether the trial court properly concluded that the Appellees could not be sued under the Indiana Access to Public Records Act (“APRA”). * * *

On June 26, 2015, Heber filed a request with IMPD and the OCC for records related to the robbery aside from the initial Incident Report, pursuant to the APRA. The OCC’s public access counselor, Samantha DeWester, denied this request, stating that Heber had failed to specify which records he was seeking with reasonable particularity. On July 15, 2015, Heber filed a second, more detailed request for records related to the robbery. DeWester denied this second request, again on the basis that it lacked reasonable particularity.

On August 2, 2015, Heber filed a complaint with the Indiana Public Access Counselor, Luke Britt, with respect to the Appellees’ failure to provide him with the requested records. On September 15, 2015, Britt filed an advisory opinion stating his belief that the Appellees violated the APRA by not timely responding to the June 26, 2015 records request and that they were not justified in denying either request on the basis of an alleged lack of reasonable particularity. After issuance of this advisory opinion, the Appellees did not provide the requested records to Heber.

On December 26, 2015, Heber filed a complaint in the trial court against the Appellees, seeking release of the requested records, along with an award of reasonable costs, attorney fees, and civil penalties. On January 19, 2016, the Appellees filed a motion to dismiss Heber’s complaint. The motion alleged solely that the Appellees were not entities that could be sued under the APRA. The trial court granted the motion to dismiss. Heber now appeals. * * *

Whether Heber ultimately will be successful in proving the Appellees violated the APRA remains to be seen. However, the Appellees’ motion to dismiss, which failed to cite controlling contrary authority, and the erroneous granting of that motion have necessitated expense and significant delay in resolution of the case. Under Indiana Appellate Rule 67, this court may sua sponte award appellate attorney fees to a prevailing party if an appeal “is ‘permeated with meritlessness, bad faith, frivolity, harassment, vexatiousness, or purpose of delay.’” In re Walter Penner Trust, 22 N.E.3d 593, 602 (Ind. Ct. App. 2014) (quoting GEICO v. Rowell, 705 N.E.2d 476, 483 n.12 (Ind. Ct. App. 1999)), trans. denied. Although we commend the Appellees for now conceding that the motion to dismiss must be reversed, the fact remains that the motion was granted and Heber had to pursue this appeal because of a wholly meritless and possibly frivolous argument by the Appellees. As such, we conclude that an award of appellate attorney fees to Heber is appropriate. We remand for the trial court to calculate an appropriate amount for such an award.

In Douglas M. Curtis v. State of Indiana , a 7-page opinion, Judge Barnes writes:
Douglas Curtis appeals his conviction for Class A misdemeanor criminal trespass. We reverse. * * *

We conclude that a person in Curtis’s position, being told he or she had forty-eight hours to somehow remove his personal property from the premises, would reasonably believe he or she had permission to remain on or re-enter the premises at any time during the next forty-eight hours. Indeed, Curtis testified that when police arrived, he was in the process of loading his car with his personal property; there is no evidence to contradict this testimony. Furthermore, Neff did not tell Curtis that he had to immediately leave and/or that he had to arrange through his father to get his personal property, rather than removing the property himself. There also is no evidence that Curtis attempted to dispute Neff’s no trespass order or indicated that he would refuse to leave. In sum, there is insufficient evidence Curtis had the necessary mens rea to have committed criminal trespass.

In Larry R. Beedy, Jr. v. State of Indiana, a 12-page, 2-1 opinion, Judge Altice writes:
Following a jury trial, Larry R. Beedy, Jr. was convicted of sexual misconduct with a minor, a Level 5 felony, and subsequently sentenced to six years, with three years executed in the Department of Correction, one year in community corrections, and two years suspended to probation. Beedy presents two issues for our review, one of which we find dispositive: Was Beedy erroneously precluded from asserting the affirmative defense set forth in Ind. Code § 35-42- 4-9(e)? We reverse. * * *

Our reading of the statute leads us to conclude that the language “any other person” is unambiguous.9 We, however, do not interpret this language as the trial court did or as the State urges. The trial court’s interpretation that “any other person” means any person other than the defendant renders the phrase “any other person” absolutely meaningless. Indeed, it is illogical to interpret the language in that manner because the defendant cannot commit a sex crime against himself, thus there is no need for the additional language. To us, it is clear that when read in context, the plain language of I.C. § 35-42-4-9(e)(4) means that a prior sex offense against the same victim does not render the defense inapplicable. Through the language employed, the legislature has provided a defense for an individual who is in a dating or ongoing personal relationship with the victim, who is not more than four years older than the victim, who engages in consensual sexual conduct with the victim, and who does not have prior convictions/adjudications against a victim other than the victim in the instant case.

Having determined that the statutory language is unambiguous, we need not address the State’s various arguments construing the statute contrary to its plain meaning. Further, to the extent the State’s arguments are based on policy considerations, this is not the proper forum. We therefore conclude that Beedy established his entitlement to the defense found in I.C. § 35-42-4-9(e), and consequently, his conviction cannot stand. We reverse and remand this cause with instructions to vacate Beedy’s sexual misconduct with a minor conviction.

Judgment reversed and remanded with instructions.

Bailey, J., concurs.

Bradford, J., dissents with opinion. [which begins, at p. 10] I respectfully disagree with the majority’s conclusion that Beedy is entitled to raise a “Romeo and Juliet” defense in this case because the victim in his previous adjudications for child molesting and child exploitation happens to be the same child he was charged with victimizing in this case. Consequently, I respectfully dissent.

NFP civil decisions today (1):

In re the Marriage of: Jennifer Bell v. John K. Bell (mem. dec.)

NFP criminal decisions today (2):

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

Marshawn Malik Weems v. State of Indiana (mem. dec.)

Posted by Marcia Oddi on August 22, 2016 11:05 AM
Posted to Ind. App.Ct. Decisions

Ind. Courts - "Prosecutor: Local fraud case jeopardizes consumers "

Bob Kasarda of the NWI Times reports:

VALPARAISO — An attorney with the Indiana secretary of state’s office warned last week of dire consequences for consumers if the defense succeeds in an attempt to erase nearly half of the 19 charges in the fraud case against former local real estate agent Donald Johnson.

Matt Kestian stood before Porter Superior Court Judge Roger Bradford and opposed an argument that the charges should be dismissed because they were filed beyond the five-year statute of limitations. * * *

Kestian said what concerned him about the defense’s request is that it would set the stage for others to avoid prosecution by setting up long-term investments that would conceal wrongdoing by maturing after the statute of limitations, which is the period following a crime when criminal charges can be filed.

“That can’t be the law,” he said.

The law allows for criminal charges to be filed beyond the statute of limitation period, if it can be shown a defendant concealed a crime, Kestian said.

He accused Johnson of concealing his crime by not registering as an agent and not registering the securities, which left the state with no way of discovering that unlawful acts occurred between two private parties. Johnson also structured the securities to mature many years down the road.

Posted by Marcia Oddi on August 22, 2016 10:56 AM
Posted to Indiana Courts

Ind. Gov't. - "Indiana mayors to lobby statehouse for help on gun ordinances"

That is the headline to this lengthy (with video) WTTV4 story by Russ McQuid. Some quotes:

INDIANAPOLIS, Ind. -- The phone calls to Bloomington Mayor John Hamilton’s office began in June when parents reported a man was spotted walking around the municipal swimming pool at Bryan Park with a gun on his hip.

“A lot of people didn’t know who he was and a lot of people called me and said, ‘Whoa! Do with have guns at our pools? Can’t we stop that?’” Hamilton recalled. “The short answer is, no, we’re not allowed to stop that.”

Mayor Hamilton’s summer of gun questions continued on the 4th of July as his city’s annual freedom celebration featured not only a 21-gun salute to kick off the festivities but a pickup truck in the parade sponsored by the Panther Ridge Training Center that carried a man holding a M60 machine gun with a bandolier of bullets hanging down.

“And we got more phone calls from people saying, ‘Wait a minute…there’s a machinegun coming down our parade. Can’t you stop it?’” said the mayor, “and I can’t.”

That’s because of a 2011 Indiana law, endorsed by the National Rifle Association and passed by the General Assembly, that prohibits mayors and local councils from passing even minimal ordinances at the town and city level to restrict the display of firearms in public.

“I can’t pass a regulation, a law, anything to do in any way with guns ammunition or accessories,” said Hamilton, “and if I do try to do anything, I’m subject to triple attorneys’ fees, penalties, so we’re all prohibited from doing anything.”

About the only thing Hamilton could do was write an OpEd piece for the New York Times titled, “Pistols at the Pool, Machine Guns on Parade and Nothing We Can Do.”

“Our preemption law on the state level is so comprehensive that, with very few exceptions, little room exists for mayors for any local action at all,” said Dr. Jody Madeira of the I-U Maurer School of Law. “When mayors go to the statehouse and lobby, their hands are tied, unfortunately, just like citizens’ hands.”

Indianapolis Mayor Joe Hogsett is similarly frustrated as he watches the city he inherited last January steadily head for another record murder tally to potentially surpass last year’s total of 144 criminal homicides.

“After all as mayors we are held accountable and responsible for the gun violence in our cities,” said Hogsett, “and what Mayor Hamilton was saying was, ‘Please give us the flexibility, give us the ability, to respond in meaningful ways to varying degrees of violence.’”

Hogsett said he would be look forward to joining with other Indiana mayors such as Hamilton in approaching the General Assembly this fall to lobby for some moderation in the state’s gun ordinance restrictions.

“I would think if you could focus on the very most important thing I could do in conjunction with the rest of my mayoral colleagues throughout Indiana is go after these next elections in November, go to the new governor, go to the newly constituted general assembly, and ask for more local control over those issues.” * * *

“Some common sense gun approaches are important,” said Hamilton, “and as a mayor my people want me to do something ahead of time, not just wait until something terrible happens to respond. The problem is in Indiana I’m not allowed to do anything about that ahead of time.

“We’re not against hunters, we’re not against firearms for self-protection, and reasonably controlled, we’re not against the Second Amendment. We are against being held hostage to this crazy radical idea that you can’t make modest and common sense controls over things that kill 30,000 people a year.”

Medeira said “common sense” gun restrictions are in the eye of the beholder.

“Its very hard precisely to define what ‘common sense’ means because there are some crazy situations that come up in law that place one person’s Right to Carry against another person’s right to be safe.

“If the state preemption law were to be made less restrictive, or lifted entirely, I think you would have mayors place additional limits on gun dealers in their jurisdictions that say, ‘If we’re going to have a gun show, we’re going to have all transactions take place through background checks, we’re going to have domestic violence laws in this area that apply not only to married couples as they do statewide but also to couples that are dating and dating violence,’ and that’s a loophole that can be closed.” * * *

Hamilton said local authorities need, “regular people speaking up to representatives and saying, ‘This is just crazy, do you really want people with guns walking around a swimming pool full of kids and parents laying around putting sunscreen on? Do you really want a machinegun with bullets attached riding down the middle of Main Street in a July Fourth parade?’”

Posted by Marcia Oddi on August 22, 2016 10:42 AM
Posted to Indiana Government

Ind. Gov't. - IURC Nominating Committee Announces Nominees

Updating this ILB post from July 25th, the Governor's Office announced Aug. 19:

Indianapolis – The Indiana Utility Regulatory Commission Nominating Committee announced today the names of the three nominees they are submitting to Governor Mike Pence for appointment to the Indiana Utility Regulatory Commission. Those three nominees are:
  • Sarah Freeman

  • Jeffrey Golc

  • Timothy Jeffers
The Nominating Committee has nominated these three candidates to fill the 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. Governor Pence will select one of the three nominees to serve the remainder of Mays-Medley’s term. Commissioner Mays-Medley’s term expires December 31, 2017. * * *

The Nominating Committee interviewed 9 candidates for the vacancy. Information regarding all applicants can be obtained from the Governor’s Office or online.

“On behalf of the IURC Nominating Committee, I am pleased to forward the names of these three nominees to Governor Pence,” said Allen Paul, Chair of the IURC Nominating Committee. “The Committee was impressed by the quality of the applications we received. This was not an easy decision.”

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

[More] Details from a story by John Russell of the IBJ:
— Tim Jeffers, director of business development at CSO Architects and former chief of staff to then-Indiana House Speaker John Gregg.

— Sarah Freeman, senior staff attorney at the Indiana Legislative Services Agency and former Indiana deputy attorney general.

— Jeffrey L. Golc, former vice president at Harrison College, former spokesman for the Hoosier Lottery and former IURC commissioner.

Posted by Marcia Oddi on August 22, 2016 10:22 AM
Posted to Indiana Government

Ind. Courts - Nominations now open for the 2nd District attorney member of the Judicial Nominating Commission

Last week I, along with all the other members of the Indiana bar residing in the 2nd Judicial District who are in good standing, received this "Notice of Election" from the Clerk of the Indiana Courts.

Essentially it says that nominations are now open for the attorney member who will represent the 2nd District on the Judicial Nominating Commission [JNC]/Commission on Judicial Qualifications for the next three years. Nominations, including a petition signed by 30 attorneys who reside in the 2nd Judicial District, are due by Sept. 19, 2016.

The coming three years are especially important. At least one Supreme Court and probably two or more Court of Appeals vacancies are anticipated.

In addition, a vote on who will be the Chief Justice will occur near the end of the three years. See this Aug. 5, 2014 post by Prof. Schumm, headed "Choosing the Next Chief Justice of Indiana: This is Huge!"

Art. 7, Sec. 3 of the Indiana Constitution: "The Chief Justice of the State shall be selected by the judicial nominating commission from the members of the Supreme Court and he [sic.] shall retain that office for a period of five years, subject to reappointment in the same manner ..."

Here is a newly updated table of the attorney members of the JNC from 1972, when the Judiciary Law of 1972 took effect), to date. The shaded names are repeats (you cannot immediately succeed yourself). Much can be revealed by studying this table.

This post from Sept. 28, 2010 links to background on the JNC. Of particular interest is this Res Gestae article I wrote, "Analysis of another effort to alter the Indiana judicial selection and retention process," that appeared in the Mar. 2006 issue. It explains (p. 5) that originally the three attorney members of the Commission were elected for 6-year terms, and all three members' terms began on the same date. This changed by statute in 1986.

Posted by Marcia Oddi on August 22, 2016 10:00 AM
Posted to Indiana Courts

Environment - More on: East Chicago housing project built in 1972 on lead-contaminated soil; residents now being relocated ...

Updating this August 16th ILB post, the Indianapolis Star today has this AP story by Jason Keyser, headed "Lead pollution forcing 1,000 Indiana residents from homes."

Posted by Marcia Oddi on August 22, 2016 09:23 AM
Posted to Environment

Ind. Decisions - Transfer list for week ending August 19, 2016

There were no transfer dispositions last week, and hence, there is no transfer
list.

Posted by Marcia Oddi on August 22, 2016 09:15 AM
Posted to Indiana Transfer Lists

Ind. Decisions - Upcoming oral arguments this week and next

This week's oral arguments before the Supreme Court (week 8/22/16):

  • No oral arguments currently scheduled.

Next week's oral arguments before the Supreme Court (week of 8/29/16):

Wednesday, August 31

  • 10:45 AM - KS&E Sports, et al. v. Dwayne H. Runnels (49S02-1606-CT-00349) A police officer was shot by a convicted felon using a firearm purchased from a sporting goods store. Alleging that the felon had acquired this firearm through an illegal straw sale, the injured officer filed suit against the sporting goods store and its owner. The defendants moved to dismiss the case pursuant to Indiana’s Immunity Statute (Ind. Code § 34-12-3-3), which provides protection for firearms manufacturers and sellers for their own lawful conduct and for damages stemming from a third party’s criminal conduct. The Marion Superior Court denied this motion and permitted the defendants to file an interlocutory appeal. In a split decision, the Court of Appeals affirmed the trial court and held that the Immunity Statute did not protect firearm sellers from being sued for damages stemming from illegal straw sales. KS&E Sports v. Runnels, No. 49A02-1501-CT-42, -- N.E. 3d --- (Ind. Ct. App. March 17, 2016). The sporting goods store has petitioned the Supreme Court to accept jurisdiction over the appeal, and amicus curiae National Shooting Sports Foundation has filed a brief in support of transfer.

    ILB: The last sentence above appears odd. The transfer list from 6/24/16 indicates that transfer was granted (see 3rd case), and the docket has a link to an order granting the petition to transfer.

    This was a March 21, 2016 2-1 ruling with three opinions. See this March 21, 2016 ILB post about the COA opinion, including quotes from Alison Frankel's national "On the Case" column.

Thursday, September 1

  • 9:00 AM - James F. Griffith v. State of Indiana (27S00-1503-LW-145) Following a jury trial, the Grant Superior Court convicted Griffith of robbery, conspiracy to commit robbery, and murder, and it sentenced him to life imprisonment without parole. Griffith appeals alleged errors related to his convictions, and he challenges the denial of his request to file a belated notice of appeal.

  • 9:45 AM - Parkview Hospital, Inc. v. Thomas E. Frost, et al. (02A03-1507-PL-00959) When an uninsured patient sued for declaratory relief, challenging the reasonableness of charges reflected in a notice of lien filed by the hospital, and the patient sought discovery from the hospital regarding fees that would have been charged to insured patients for the same services, the Allen Circuit Court denied the hospital’s motion for partial summary judgment. The Court of Appeals affirmed. Parkview Hosp., Inc. v. Frost, No. 02A03-1507-PL-959, 2016 WL 943430 (Ind. Ct. App. Mar. 14, 2016), trans. pending. The hospital has petitioned the Supreme Court to accept jurisdiction over the appeal.

    ILB: This is a 2-1 March 14, 2016 COA decision. See also this March 21st ILB post headed "Could Indiana Supreme Court take second look at health care pricing?"
Webcasts of Supreme Court oral arguments are available here.


This week's oral arguments before the Court of Appeals (week of 8/22/16):

  • No oral arguments currently scheduled.

Next week's oral arguments before the Court of Appeals (week of 8/29/16):

  • 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 August 22, 2016 09:06 AM
Posted to Upcoming Oral Arguments

Friday, August 19, 2016

Ind. Decisions - 7th Circuit decides Wis. union case today involving inflatable rats

ILB: This opinion is remarkable for several reasons ...

In Construction and General Labor v. Town of Grand Chute (ED Wis.), a 27-page, 2-1 opinion including many full-color photos of the inflatable rats, and with Chief Judge Wood and Judges Easterbrook and Posner all on the panel, Judge EASTERBROOK'S opinion for the majority begins:

Rats. This case is about rats. Giant, inflatable rats, which unions use to demonstrate their unhappiness with employers that do not pay union‐scale wages. Cats too—inflatable fat cats, wearing business suits and pinkie rings, strangling workers. Here is what they look like, as deployed during a labor dispute in the Town of Grand Chute, Wisconsin: [ILB: see opinion for the photos] As the pictures show, the rat and the cat are staked to the ground, to prevent the wind from blowing them away. Those stakes led to this litigation. * * *

[p. 10] POSNER, Circuit Judge, concurring and dissenting. I agree that the judgment in favor of the defendant (the town) must be reversed, but I disagree that the case should be remand‐ ed. The balance of evidence is clear enough to justify our de‐ ciding that the union’s constitutional right of free speech was violated. * * *

[p. 20] I’ll scandalize some readers, who think it improper for a judge to stray outside the official trial record, by sharing with them my experience with a roadside union rat. I some‐ times drive to work on a major divided highway called Mar‐ tin Luther King Drive, which runs north from Hyde Park, where I live, south of downtown Chicago, to downtown. As one nears the downtown on MLK Drive one sees (or rather saw, because during the long gestation of this case the rat— alas!—was removed, whether because the labor dispute be‐ tween union and employer was resolved or for some other reason), on the east side of the street, a large inflated rubber rat named Drape (short for Draper and Kramer, the employ‐ er with whom the union that put up that rat was fighting). Every time I drove past the rat I glanced at it, as it was the only noteworthy sight on my route. This glance never caused me to swerve, crash, crouch in my seat, avert my eyes, hit a pedestrian, or cause other mayhem. Nor did I ever observe an accident, even a swerve, in the vicinity of the rat. I saw no driver, or pedestrian, upon glimpsing the rat flee in terror. And yet this rat, like its Grand Chute cousin, was close to a major street—in fact much closer than the Grand Chute rat was to a major street; for while the Grand Chute rat was 70 feet from the highway, my Chicago rat was only about three feet from MLK Drive. I took a close‐up photo of the rat, and another photo of it from across the street. Here are the two photos: [ILB: see opinion for J.Posner's photos]

ILB: Here is one of J. Posner's photos. from p. 21 of the opinion, introduced by: "my Chicago rat was only about three feet from MLK Drive. I took a close‐up photo of the rat,".

Posted by Marcia Oddi on August 19, 2016 05:15 PM
Posted to Ind. (7th Cir.) Decisions