Friday, January 27, 2012
Vacancy on Supreme Court 2012 - A first look at the applicants
Thanks to IU Robert McKinney School of Law's Prof Joel Schumm for this first look at the candidates:
Number of ApplicantsHere are the 15 applicants, with the links we could find this evening. Next week the candidates' applications and photos will be available:After a record 34 applicants applied for the 2010 vacancy, the mere fifteen for this vacancy is a bit surprising. The quality of the pool, though, is impressive. Based on the press release information about interviews on February 8 and 9, it seems clear that the process will not be re-opened and extended as it was in 1994 when only ten applicants applied for the seat vacated by Justice Givan and secured by Justice Myra Selby.
Re-Applications
Although I predicted in this post that several of the 33 unsuccessful applicants from 2010 would likely reapply, only three did: finalists Judge Robyn Moberly and Mr. Karl Mulvaney as well as Judge Cynthia Ayers, an applicant who did not advance to the second round of interviews. Les Shively was a finalist for the 2007 Court of Appeals vacancy for which Judge Elaine Brown was appointed.
Gender Diversity
Although women comprised slighted more than half of the applicants in 2010 (19/34), women are slightly under half of the applicant pool for this vacancy (7/15).
Geographic Diversity
A whopping two-thirds of the applicants are from Indianapolis, and three of the remaining five are from Southern Indiana (Shively from Evansville, Schultz from Columbus, Granger from Floyd County) and two from Northern Indiana (Trent from Lafayette, Pagano from Lake County).
Judicial and Other Backgrounds
Five of the applicants are currently trial judges and another (Judge Bradford) previously served as a trial judge and now serves on the Indiana Court of Appeals. Jane Seigel is executive director of the Indiana Judicial Center.
Five of the applicants are currently in private practice: Mr. Mulvaney, Mr. O’Bryan, Ms. Reeder, Mr. Shively, and Ms. Trent.Mr. Massa is executive director of the Criminal Justice Institute, Ms. McMath is a full-time appellate public defender, and Mr. Schultz is Executive Director of the Louisville and Southern Indiana Bridges Authority.
The Non-Elephant(s) in the Room
Although the Indiana Constitution provides for merit selection without regard to political party, the vast majority of applicants and nearly all finalists have been of the Governor’s political party. At least one applicant for this vacancy is a Democrat and one previously ran for judge as an Independent.
Future Chief Justice?
The Commission will send three names to the Governor for one appointment as a justice on the Court. Soon after that selection the Commission will then consider which of the justices to name Chief Justice. The newly appointed justice may well apply for that position, and some of these applicants are likely interested in and would be well-qualified for the position.
- Hon. Robert R. Altice, Jr., Marion Superior Court, Criminal Division 2
- Hon. Cynthia J. Ayers, Marion Superior Court, Civil Division 4
- Hon. Cale J. Bradford, Indiana Court of Appeals
- Hon. Maria D. Granger, Floyd Superior Court 3
- Mr. Mark S. Massa, Indianapolis
- Ms. Patricia C. McMath, Indianapolis
- Hon. Robyn L. Moberly, Marion Superior Court, Civil Division 5
- Mr. Karl L. Mulvaney, Indianapolis
- Mr. Rory O’Bryan, Indianapolis
- Hon. Michael N. Pagano, Lake Superior Court, County Division 3
- Ms. Mary K. Reeder, Indianapolis
- Mr. Steven R. Schultz, Columbus
- Ms. Jane A. Seigel, Indianapolis
- Mr. Les C. Shively, Evansville
- Ms. Rebecca A. Trent, West Lafayette
Posted by Marcia Oddi on January 27, 2012 06:54 PM
Posted to Vacancy on Supreme Court 2012
Vacancy on the Supreme Court 2012 - More on: Here is the just released list of applicants for the vacancy
Other nuggets: 8 men; 7 women; two finalists from last time reapplied; 6 judges; 9 attorneys; 2 attorneys with ties to Gov. Mitch Daniels.
— Niki Kelly (@nkellyatJG) January 27, 2012
Of 15 Supreme Court applicants, none from Northeast Indiana.
— Niki Kelly (@nkellyatJG) January 27, 2012
Posted by Marcia Oddi on January 27, 2012 05:43 PM
Posted to Vacancy on Supreme Court 2012
Ind. Courts - More on: Supreme Court to hear legislative fines/seizure appeal
Updating this entry from earlier this afternoon, here is the Supreme Court order filed today granting emergency transfer in Berry v. Crawford, re garnishment of certain Democratic legislators' pay by the House of Representatives to pay fines.
[More] Here is the AG's statement.
Posted by Marcia Oddi on January 27, 2012 05:10 PM
Posted to Ind. Trial Ct. Decisions
Vacancy on the Supreme Court 2012 - Here is the just released list of applicants for the vacancy
Hon. Robert R. Altice, Jr., Marion Superior Court, Criminal Division 2
Hon. Cynthia J. Ayers, Marion Superior Court, Civil Division 4
Hon. Cale J. Bradford, Indiana Court of Appeals
Hon. Maria D. Granger, Floyd Superior Court 3
Mr. Mark S. Massa, Indianapolis
Ms. Patricia C. McMath, Indianapolis
Hon. Robyn L. Moberly, Marion Superior Court, Civil Division 5
Mr. Karl L. Mulvaney, Indianapolis
Mr. Rory O’Bryan, Indianapolis
Hon. Michael N. Pagano, Lake Superior Court, County Division 3
Ms. Mary K. Reeder, Indianapolis
Mr. Steven R. Schultz, Columbus
Ms. Jane A. Seigel, Indianapolis
Mr. Les C. Shively, Evansville
Ms. Rebecca A. Trent, West Lafayette
Posted by Marcia Oddi on January 27, 2012 04:06 PM
Posted to Vacancy on Supreme Court 2012
Ind. Courts - Supreme Court to hear legislative fines/seizure appeal
Marion Co. judge extends TRO against state seizing #INHouse D pay for walk-out fines 10 days. IN Sup. Crt. to take case on direct appeal.
— Mary Beth Schneider (@marybschneider) January 27, 2012
Posted by Marcia Oddi on January 27, 2012 03:49 PM
Posted to Ind. Trial Ct. Decisions
Ind. Courts - Still more on: A new pilot project allowing web cameras in court rooms to be announced [Updated]
Updating yesterday's ILB entry, the pilot project will involve:
... a pilot project for video and audio coverage via webcam of certain trial court proceedings in Lake County. The Times of Northwest Indiana has authorization to webcast proceedings in Lake Circuit Court, Lake Superior Court Civil Division 2 and Lake Superior Court Civil Division 6.That from a news release today from the Supreme Court. Here is the Court's order, headed "In Re Pilot Project for Webcasting Lake County Circuit and Superior Divisions 2 and 6."
[Updated] The Indianapolis Star now has a brief story, outlining some of the limitations.
Posted by Marcia Oddi on January 27, 2012 12:39 PM
Posted to Indiana Courts
Ind. Decisions - Court of Appeals issues 3 today (and 5 NFP)
For publication opinions today (3):
In Robert Holland, A Concerned Citizen for the Redevelopment of Gary v. Richard Steele, Barbara Steele, First Midwest Bank, As Successor Trustee By Way of Merger to Bank Calumet, N.A., et al., a 19-page opinion involving an appellant pro se, Judge Bailey concludes:
Holland has not demonstrated an abuse of discretion by the trial court with respect to his motion for a default judgment or the Bank’s motion for a continuance. The trial court properly denied Holland summary judgment on his quiet title claim, and properly granted summary judgment to the Bank on its trespass and slander of title claims. The trial court properly found that Holland had filed a frivolous lawsuit, and that the Bank was entitled to attorney’s fees. The amount of attorney’s fees awarded was within the trial court’s discretion. Finally, we decline to award appellate attorney’s fees.In City of Indianapolis v. Rhodora Earl, a 7-page opinion in an interlocutory appeal relating to a police chase, Judge Darden writes:
Issue. Whether the trial court erred in denying the City's motion claiming that it was entitled to summary judgment under the law enforcement immunity provision of the Indiana Tort Claims Act. * * *Bradley Bradford v. State of IndianaIn the present case, like in Garman, the injured party was struck by a vehicle operated by a fleeing suspect. Under the reasoning of Quakenbush, Patrick, and Garman, Indiana Code section 34-13-3-3 does not act as blanket immunity, and the issue of whether Officer Harmon acted “with due regard for the safety of all persons” is one for the trier of fact to decide after taking into consideration the totality of the facts. Thus, the trial court was correct in denying the City's motion for summary judgment.
The City attempts to avoid the aforementioned cases by recasting the issue as whether Officer Harmon was negligent in initiating the chase. As is apparent from Garman, the issue of the propriety of the chase begins but does not end with the initiation thereof. As the facts of Garmanimply, an officer's operation of his vehicle during a chase may violate Indiana Code section 9-21-1-8(d)(1) when the officer continues pursuit under circumstances where a reasonable officer, who observes the dangerous activities of the fleeing driver, would have called off the chase. Affirmed.
NFP civil opinions today (3):
Indianapolis Education Association and President Elden Wolting v. Indianapolis Public Schools (NFP)
In the Matter of L.L., (CHINS), K.R. S. (Mother) v. Indiana Dept. of Child Services (NFP)
NFP criminal opinions today (2):
Justin L. Hargrove v. State of Indiana (NFP)
Brett Zagorac v. State of Indiana (NFP)
Posted by Marcia Oddi on January 27, 2012 11:44 AM
Posted to Ind. App.Ct. Decisions
Ind. Law - "Bill seeks to resolve local car dealer’s suit"
Back in the day, Senator Bob Garton would have disallowed these bills ...
Niki Kelly reports today in the Fort Wayne Journal Gazette in a story that begins:
The Indiana legislature is stepping in to decide a dispute between two Fort Wayne car dealers by retroactively changing a law to halt a pending lawsuit.More:House Bill 1171, authored by Rep. Phil GiaQuinta, D-Fort Wayne, passed out of the House Commerce Committee 8-3 on Thursday. It now moves to the full House for consideration.
Most committee members felt a law restricting where auto dealerships could move was unnecessary and limiting competition.
But a few didn’t like the idea of changing state law in the middle of a legal challenge.
The battle was termed by some as David vs. Goliath – DeHaven’s Summit City Chevrolet vs. Kelley Chevrolet on East State Boulevard.
David Bailey, attorney for Summit City, said the legislature would be pulling the rug out from under his client in the middle of a game just because one side is better connected than another.“Should the legislature referee a dispute between two car dealers in Fort Wayne?” he asked.
GiaQuinta responded by saying: “We make laws. We change laws. That’s what we do.” * * *
A similar bill is moving in the Senate. Senate Bill 388 is authored by Sen. Tom Wyss, R-Fort Wayne.
Posted by Marcia Oddi on January 27, 2012 11:12 AM
Posted to Indiana Law
Ind. Law - More on: "Hunting preserves: Legislative efforts in the past focused on grandfathering the existing preserves only, but this bill goes further to open the industry to new operators"
Updating this ILB entry from Jan. 25th, quoting Niki Kelly's story in the Fort Wayne Journal Gazette, today the same paper has a long editorial that begins:
Why are some state legislators trying to legalize canned hunting in Indiana when most states are working hard to eliminate the repulsive practice?More from the editorial:“It’s all about greed,” said Gene Hopkins, president of the Indiana Sportsmen’s Roundtable.
House Bill 1265, which passed out of the Natural Resources Committee on Tuesday, would make it legal to hunt farm-raised cervidea – deer and elk – confined within a fence. Unlike previous proposals, the bill goes far beyond grandfathering in the four captive hunting facilities already operating in Indiana; it would encourage new operators to open more canned hunting operations in the state.
“I think it’s sad that we’ve got to visit this issue over and over when we’ve got so many more important things we should be working on,” Hopkins said. “This is really, truly a dangerous bill.”
Owners of the confined hunting operations likely took the opportunity to revisit the issue this year because of the significant number of new legislators who are unfamiliar with the issue’s history or are ignorant of the research and study that show that legalizing captive hunting is a bad idea.The bill will be eligible for 2nd reading Monday.“I studied it for over a year,” said Hopkins, who served on the Citizens Advisory Council for Captive Cervidaes, which was formed by the DNR after a high-fence operator filed a lawsuit against the state in 2005. “I’m an IT guy. I’m a data guy. I’m not an emotional guy. And the data is real clear on this. This is not good.”
Hunting deer in confined areas violates the hunting ethic of fair chase.
“What’s right about shooting a deer or elk behind a 200-acre fence?” Hopkins asked. “These are not wild animals. They are raised on farms, bottle-fed. They don’t have any idea how to hide from hunters. I’m a hunter. I’ve been a hunter all my life and I’ve fought for the rights of hunters for 30 years. This is not hunting.” * * *
“Whether you hunt or not, I don’t care what your beliefs are, this is wrong,” Hopkins said. “People need to get ahold of their legislators and tell them to vote no on this. No compromises, no amendments, just no.”
Posted by Marcia Oddi on January 27, 2012 10:09 AM
Posted to Indiana Law
Ind. Decisions - "Both sides, which sued each other in 2010, had small victories in orders issued Wednesday"
Updating this ILB entry from Jan. 25th, which quoted the FSSA's characterization of the rulings, the IndyStar has a brief, seemingly balanced story today, although the ILB still has not seen the actual rulings:
A Marion County judge has ruled on some of the issues in a legal battle over the state's canceled welfare-modernization contract with IBM.Both sides, which sued each other in 2010, had small victories in orders issued Wednesday by Marion Superior Court Judge David Dreyer.
Dreyer ruled that the state will have to pay IBM $40 million in subcontractor assignment fees and capped the damages the state can seek at $125 million. The state had asked for at least $437 million.
But Dreyer declined to grant summary judgment in favor of IBM regarding its request for $43 million in deferred fees and its request for the state to return computers and equipment used in the project.
Those issues, along with others, will be resolved during a trial that's scheduled to begin Feb. 27.
Meanwhile, the Indiana Supreme Court will decide whether Gov. Mitch Daniels has to provide a deposition. Dreyer said that Daniels must provide a deposition, but the state appealed. The Supreme Court has scheduled a hearing Feb. 13 to hear oral arguments.
Posted by Marcia Oddi on January 27, 2012 09:07 AM
Posted to Ind. Trial Ct. Decisions
Law - "Warning: If the Email You Just Read Isn't for You, Don't Read It "
The ILB has had several brief entries on email disclaimers (see here and here).
Today the WSJ ($$) has an article on the topic, written by Dionne Searcey and Michael Rothfeld. A few quotes:
Email disclaimers, those wordy notices at the end of emails from lawyers, bankers, analysts, consultants, publicists, tax advisers and even government employees, have become ubiquitous—so much so that many recipients, and even senders, are questioning their purpose."Who reads them?" asks Bruce Nyman, a former county official from Long Island, N. Y., who has grown tired of the many disclaimers attached to messages in his inbox. He says they are like the modern-day mattress tag. "And has anyone ever been arrested for tearing them off?" * * *
Several years ago, William L. Wilson sent a memo to other partners in his South Bend, Ind., law firm insisting they include a standard confidentiality disclaimer on every email. "As I began to think about it further I realized no one reads these things," said Mr. Wilson, who practices civil law. "I don't read them." He has removed the disclaimer from his emails.
Posted by Marcia Oddi on January 27, 2012 08:36 AM
Posted to General Law Related
Thursday, January 26, 2012
Ind. Courts - More on: A new pilot project allowing web cameras in court rooms to be announced
That is the headline to this ILB entry from earlier today announcing a press conference tomorrow by Chief Justice Shepard.
"Ind. Courts - Cameras in trial courtrooms pilot hits snag," is the heading to this ILB entry from Feb. 16, 2007 that links to a number of related entries, including this one from March 14, 2007.
Now it is five years later. During that period, web cameras and live streaming have become ubiquitous...
Posted by Marcia Oddi on January 26, 2012 04:41 PM
Posted to Indiana Courts
Ind. Law - More on: Right of publicity law changes proposed
Updating this ILB entry from January 16th on HB 1133, check out this story today by Eriq Gardner in The Hollywood Reporter, headed "Why the Marilyn Monroe Estate Paid $3 Million For Photos of the Film Legend (Analysis): As a result, an important lawsuit impacting the publicity rights of deceased celebrities could be near an end." Here is a sample:
[Sam] Shaw was a legendary photographer who captured some of the biggest stars from old Hollywood, including Marlon Brando, Audrey Hepburn and Elizabeth Taylor. His images of Monroe were the most iconic, and after the photographer's death, his family began to license the images around, including to Target for T-shirts and to one documentary producer who was making a film entitled Marilyn's Man about the star's first husband.Then CMG Worldwide, an Indiana-based intellectual property management firm, entered the picture. The firm had previously lobbied its home state to pass laws that generously conferred post-mortem publicity rights to deceased celebrities. When Monroe's photographer later sought to exploit Monroe images, CMG demanded a cut.
That set off litigation -- first in Indiana, where CMG demanded an injunction, and then in New York, where Shaw Family Archives argued Monroe was a citizen at the time of her death. Importantly, New York law wasn't as generous to dead celebrities as Indiana law.
Posted by Marcia Oddi on January 26, 2012 03:13 PM
Posted to Indiana Law
Vacancy on Supreme Court 2012 - Applications due tomorrow
The deadline for applications for the vacancy on the state’s highest court is tomorrow, Friday, Jan. 27th.
Kathryn Dolan, Indiana Supreme Court Public Information Officer will distribute a press release with the list of candidates for the Supreme Court vacancy Friday, Jan 27th sometime after 4:30 pm.
Watch the ILB for the names.
Posted by Marcia Oddi on January 26, 2012 02:19 PM
Posted to Vacancy on Supreme Court 2012
Ind. Courts - A new pilot project allowing web cameras in court rooms to be announced
Notice just received:
Indiana Chief Justice Randall T. Shepard will announce details of a pilot project allowing web cameras in several Indiana trial courts. Details regarding the project will be outlined during tomorrow’s press conference. Information will also be posted at courts.in.gov after the press conference.Announcement will be tomorrow at 11 am.
Posted by Marcia Oddi on January 26, 2012 02:15 PM
Posted to Indiana Courts
Ind. Gov't. - "Historic electric chair gets preserved"
Indiana's electric chair, now retired, "was based on sketches of Ohio’s electric chair. It was created using parts of Indiana’s original hangman scaffold."
So reports WISH TV 8, which adds: it is "now being shown as part of the Indiana Department of Correction’s Reflections of Pride: The History of the IDOC Museum."
Posted by Marcia Oddi on January 26, 2012 02:07 PM
Posted to Indiana Government
Courts - Studies of tweets by federal court jurors
Check out this post and the links from Joe Palazzolo of WSJ Law Blog.
Posted by Marcia Oddi on January 26, 2012 02:02 PM
Posted to Courts in general
Ind. Law - More on: Your law firm or court plans for Superbowl week?
On January 1st I posted an entry (with a few responses) asking about Superbowl plans of local courts and law firms - would you be open or closed?
Now that we are getting down to the wire, things are sounding much more serious.
It looks like ALL THE METERS south of Michigan will be bagged for at least part of this time. Maybe now, as yesterday I saw that the meters already were bagged on East Washington at East Street and all the way west.
Streets will be closed and I find the lists of restrictions almost impenetrable.
And then there is information like this, that few people will know until it is too late and they are locked in a gigantic rush hour traffic snarl...
Posted by Marcia Oddi on January 26, 2012 12:39 PM
Posted to Indiana Law
Courts - In NY, "A Judgeship With Prestige, and, Oh, What a Grand Room"
William Glaberson's story today in the NY Times begins with a photo of "The chambers occupied by the top judge of the appeals court in Brooklyn," then continues:
Sure, being the top judge of the appeals court in Brooklyn is impressive. It is one of the most powerful judicial seats in the state.Fascinating. And I wonder if there are any chambers in Indiana that might match up.But check out the office that goes with the job, with its 15-foot ceilings, antique furnishings and off-white porcelain private bathroom. Not to mention the crimson damask curtains with gold fringe, framing the 11-foot windows with their tranquil view of brownstone Brooklyn. * * *
There is no list of the most luxurious chambers in the state judicial system, of course, but many judges agree that the top job in the Brooklyn court comes with the best chambers of the more than 1,200 in the state system.
But as I read the story wondered -- "What is "the appeals court in Brooklyn?" Where does it fit into the NY system, where "supreme courts" are not supreme, but trial courts?
I found this good diagram of the New York court structure on the National Council of State Courts site. Look at the left box in the second row of boxes. It says, "Appellate Divisions of Supreme Court. 56 justices sit in panels in 4 departments." The link in the box leads to a list of counties served by each of the 4 divisions. The Brooklyn court is in the 2nd division.
Also useful is this "Overview of the Appellate Division," which explains:
The Supreme Court, of which the Appellate Division is a part, is New York State's principal trial court, with a branch in each of the State's 62 counties.
Posted by Marcia Oddi on January 26, 2012 11:26 AM
Posted to Courts in general
Environment - "Jobs vs. environment debate dominates hearing on coal gasification plant"
That is the headline to Thomas B. Langhorne's story in the Evansville Courier & Press on last evening's public hearing in Rockport on the air permit for the proposed coal gasification plant. It begins:
ROCKPORT, Ind. — Stern warnings of environmental harm clashed with appeals to create badly needed jobs Wednesday night at a public hearing about a proposed coal gasification plant in Spencer County.Here is a list of some of the earlier ILB entries on the project.The Indiana Department of Environmental Management public meeting and hearing attracted about 200 people to South Spencer High School.
At issue: whether the state agency's Office of Air Quality ultimately will issue an air permit for the proposed $2.65 billion plant, which would be located about 30 miles east of Evansville. The facility is intended and designed to convert Illinois Basin coal and petroleum coke into pipeline-quality substitute natural gas and liquefied carbon dioxide. The developer is Rockport-based Indiana Gasification, LLC; a subsidiary of the New York investment firm Leucadia National Corp.
Posted by Marcia Oddi on January 26, 2012 10:48 AM
Posted to Environment
Courts - More on: "WICHITA, Kan. -- U.S. Senior District Judge Wesley Brown has died at age 104"
Updating yesterday's ILB entry, the NY Times has an obituary today written by A.G. Sulzberger. Some quotes:
Judge Wesley E. Brown, whose work ethic and a hale constitution kept him climbing the stairs to his fourth-floor courtroom past his 100th birthday, making him the oldest active federal judge in the nation’s history, died on Monday in Wichita, Kan. He was 104. * * *As his health declined in recent months, he reduced his caseload. But Judge Brown, who was the subject of a Page 1 profile in The New York Times in 2010, was still working from bed in recent weeks, telling colleagues he just wanted to get back to his courtroom.
“He was driven by his work,” said Mike Lahey, who was a longtime law clerk for the judge. “He loved it, and it was his reason for living at the end.”
Posted by Marcia Oddi on January 26, 2012 10:38 AM
Posted to Courts in general
Ind. Decisions - Court of Appeals issues 1 today (and 14 NFP)
For publication opinions today (1):
In Jeff Reeves v. Citizens Financial Services, a 14-page opinion, Judge Crone writes:
Jeff Reeves sustained a back injury while working for Citizens Financial Services (“Citizens Financial”). Over the course of several years, Citizens Financial paid for a variety of medical treatments, but Reeves still experienced pain in his back that radiated into his left leg. After an evidentiary hearing, a single hearing member of the Worker’s Compensation Board (“the Board”) determined that Reeves had reached maximum medical improvement (“MMI”), had a permanent partial impairment (“PPI”) of five percent, and was not entitled to ongoing palliative care. Reeves appealed to the Board, which adopted the decision of the single hearing member. Reeves now appeals the Board’s decision, arguing that the Board erroneously concluded that he was not entitled to additional palliative care. Because Reeves has failed to identify what type of care he should receive and because the undisputed evidence does not show that palliative care limits the extent of his impairment, we affirm.NFP civil opinions today (6):
Associated Estates Realty Corporation v. Angela Mason (NFP)
Diana Bible v. St. Vincent Hospital (NFP)
James Patrick Flinn v. Courtney Sue Flinn and James Erick Flinn (NFP)
Lawrence Peterson and Fredrick Edmond v. Bruce Lemmon, et al. (NFP)
NFP criminal opinions today (8):
Duane R. Tackett v. State of Indiana (NFP)
Richard H. Edwards v. State of Indiana (NFP)
Moustapha Barry v. State of Indiana (NFP)
Casey Jackson v. State of Indiana (NFP)
Dairius Redding v. State of Indiana (NFP)
Angelina M. Sanders v. State of Indiana (NFP)
Stacey Sills v. State of Indiana (NFP)
Jonathan Paugh v. State of Indiana (NFP)
Posted by Marcia Oddi on January 26, 2012 10:20 AM
Posted to Ind. App.Ct. Decisions
Ind. Law - More on: "Hairdressers may have killed bill that would eliminate licensing"
Updating this ILB entry from yesterday, here is more about the Regulated Occupations Evaluation Committee. As noted here yesterday, it is a statutory committee (IC 25-1-16), created in 2010 by PL 84 (SEA 356, authored by Sen. Delph). Sec. 10 provides:
The committee shall establish a schedule to review and evaluate each regulated occupation. Each regulated occupation must be reviewed and evaluated at least every seven (7) years.This is NOT a legislative study committee, but a statutory committee with NO legislative members. From the committee's webpage:
Indiana’s Regulated Occupations Evaluation Committee (ROEC) was established by the Indiana General Assembly to assess the efficiency and effectiveness of all professional licenses regulated by the Indiana Professional Licensing Agency (IPLA).Here is information on the seven committee members. According to IC 25-1-16-11, the committee also has a staff.
The committee continues to meet. Here is the agenda for its Jan. 25, 2012 meeting, which gives a good idea of the agencies that will be covered in the bill to be introduced in 2013. They include real estate, auctioneer, plumbing, to name a few.
Here is the committee's "Assessment framework for occupational regulation", which begins:
In order to guide its work, the ROEC has prepared a conceptual framework aimed at answering two questions: (1) Should the state of Indiana be involved in any form of regulation (e.g., licensing, certification or registration) of a particular occupation and, if so (2) What questions should be asked to determine whether a regulatory program is accomplishing its public purpose in a cost-effective manner or needs to be buttressed or reformed in some specific way.
Posted by Marcia Oddi on January 26, 2012 09:40 AM
Posted to Indiana Law
Ind. Law - Senate Committee backs RU-486 limit
Here is the AP story.
The story does not include the bill number.
Sadly, there appears to be no way to access yesterday's online committee calendars ...
Looking at the list of Senate bills on abortion, I've found a SB 72 and a SB 125 and a SB 282 and a SB 340 and a SB 341.
I'm guessing this story is about SB 282, abortion inducing drugs.
The story reports:
The Senate health committee voted 5-4 in support of the bill that requires that a doctor examine a woman in person before giving her RU-486, provide written information about the physical risks of abortion and to schedule a follow-up ultrasound for her two weeks later. Doctors who don’t follow those steps could face a misdemeanor criminal charge if the proposal becomes law.The story concludes:
Republican Sen. Vaneta Becker of Evansville, who joined the committee’s three Democrats in voting against the bill, said she believed the proposal wrongly intervened in the doctor-patient relationship and didn’t think the proposal improved patient safety.ILB: Last year, abortion clinics. This year, RU-486. Next year, birth control pills and devices?The abortion pill proposal follows the Republican-dominated Legislature’s passage last year of a law aimed at cutting off Medicaid funding to Planned Parenthood because it provides abortions and imposed tighter abortion restrictions. A federal appeals court is considering whether to lift a federal judge’s order that was issued in June that blocked the funding cutoff.
Posted by Marcia Oddi on January 26, 2012 09:13 AM
Posted to Indiana Law
Ind. Law - "Senate panel votes to let schools teach creationism"
Dan Carden has the brief story in the NWI Times. It begins:
INDIANAPOLIS | An Indiana Senate committee on Wednesday endorsed teaching creationism in public schools, despite pleas from scientists and religious leaders to keep religion out of science classrooms.The bill passed out of committee without change, 8-2. The tally sheet showing the committee members' votes is not yet available.Senate Bill 89 allows school corporations to authorize "the teaching of various theories concerning the origin of life" and specifically mentions "creation science" as one such theory.
State Sen. Scott Schneider, R-Indianapolis, who voted for the measure, said if there are many theories about life's origins, students should be taught all of them.
Posted by Marcia Oddi on January 26, 2012 09:02 AM
Posted to Indiana Law
Ind. Law - More on: "Hunting preserves: Legislative efforts in the past focused on grandfathering the existing preserves only, but this bill goes further to open the industry to new operators"
Following up on yesterday's ILB entry, Nick Schneider, Assistant Editor of the Greene County Daily World, has this long story today. A few quotes:
A bill that would legitimize four existing captive hunting sites in the state passed out of the Indiana House Natural Resources committee Tuesday.The bill, sponsored by District 62 State Rep. Matt Ubelhor (R-Bloomfield), cleared the committee by an 8-4 vote.
House Bill 1265 would reverse state regulations on high-fenced hunting and end a lawsuit that started in 2005. * * *
"I was very happy to get it out of the committee," Rep. Ubelhor said. "It's never made it out of committee before." * * *
Legislative efforts in the past focused on grandfathering the existing preserves only, but this bill goes further to open the industry to new operators, Rep. Ubelhor said.
Posted by Marcia Oddi on January 26, 2012 08:56 AM
Posted to Indiana Law
Wednesday, January 25, 2012
Ind. Decisions - "Court agrees with state’s position in key issues in IBM case"
That is the heading of this press release issued this evening by Neal Moore of the Ind. Family & Social Services Administration:
(INDIANAPOLIS Jan. 25, 2012) - The Marion Superior Court made summary judgment rulings today on a number of issues in the State's lawsuit against IBM based on IBM's failure to live up to its promises under the contract to modernize Indiana's welfare benefits system. In the most important decisions, the court made these rulings:The ILB has not seen a copy of the ruling itself.The rulings mean that a number of claims IBM has made since the beginning of the lawsuit have been eliminated from the case. “This clears the way for the state to pursue recovery at trial for the damages caused by IBM's substandard performance,” said Peter Rusthoven, an attorney representing the state.
- Rejected IBM's claim that it is entitled to over $43 million in "deferred fees" even if the state had cause to terminate the contract because of IBM's poor performance. The Court agreed with the state that if IBM's poor performance justified terminating the contract, then IBM is not entitled to any "deferred fees" under the contract.
- Rejected IBM's argument that its poor performance was excused because Indiana experienced an economic downturn and flooding after the contract was signed. The Court said these reasons were simply not valid under the contract, and that evidence about flooding or economic downturn was legally irrelevant.
- Rejected IBM's argument that it was entitled to return of computers and other equipment used during the contract, which IBM has claimed are worth some $9.3 million.
- The state may be able recover up to $125 million in damages, based on the contract provisions, and that subcontractor assignment fees may be owed to IBM pending determination of whether IBM was terminated for cause and determination of the State's damages at trial.
This is the latest in a long list of ILB entries on the suit between the State of Indiana and IBM relating to the FSSA welfare outsourcing contract. Earlier today, the ILB posted the Supreme Court's announcement that it had scheduled oral argument on the interlocutory appeal relating to Gov. Daniels' testimony.
Posted by Marcia Oddi on January 25, 2012 09:31 PM
Posted to Ind. Trial Ct. Decisions
Ind. Courts - "Indiana Judge Punishes Jury Dodger With Shame"
See the story about Lake Criminal Court Judge Thomas Stefaniak Jr. in the Chicago blog, Chicagoist.
Posted by Marcia Oddi on January 25, 2012 06:51 PM
Posted to Indiana Courts
Ind. Law - Still more on "Chilling CAFO lawsuits"
Updating this ILB entry from Jan. 23, HB 1091 has been moved back to Second Reading for amendment, by a floor motion just adopted. It will now not appear on the 2nd Reading calendar until Friday.
According to Speaker Bosma's announcement, it has to do with constitutional questions raised on 2nd reading by Rep. DeLaney.
Posted by Marcia Oddi on January 25, 2012 04:47 PM
Posted to Indiana Law
Courts - "Illinois trials may soon be televised: State Supreme Court to scrap camera ban, allow pilot program"
That is the headline to this story today by By Ryan Haggerty of the Chicago Tribune. The long story begins:
The Illinois Supreme Court will announce Tuesday that it will allow media cameras to record proceedings in the state's circuit courts for the first time, a court spokesman said Monday.The pilot program allowing the media to use both still and video cameras to record civil and criminal proceedings will be enacted "on an experimental and limited basis," said Joseph Tybor, spokesman for the state Supreme Court.
The media has been allowed to record proceedings in the state Supreme Court and the Illinois Appellate Court since 1983, but until now has not been allowed to record proceedings in the state's 23 circuit courts.
Posted by Marcia Oddi on January 25, 2012 02:42 PM
Posted to Courts in general
Courts - More on Jones v. State
Tom Goldstein, founder of SCOTUSblog, has a long entry today on the SCOTUS decision this week in Jones v. State, and "bad" press coverage. A sample:
In general, I think that the coverage of Jones is bad and leaves a very misleading impression of the decision. None of the pieces correctly characterizes the ruling and its limits.The USA Today, Los Angeles Times, Associated Press, and Reuters all incorrectly say (including in their headlines) that Jones requires a warrant. The New York Times and Wall Street Journal do not say that in terms (seemingly ducking the issue on purpose, which is not helpful given its importance), but they nonetheless leave the reader with the impression that a warrant is required: the Times indicates that “the authorities remain free to seek warrants,” while the WSJ reports that the government acted unconstitutionally in this case when it acted “without a valid search warrant.” The body of the Washington Post story says that “Scalia did not hold that a warrant was always necessary,” which is closer to correct but leaves the misimpression that he held that it is sometimes necessary; moreover, the editor created a headline wrongly saying a warrant is required.
With respect to the long-term versus short-term distinction, none of the pieces draws it clearly. The Reuters piece does correctly state that to the extent that Jones addresses monitoring, it considers “an extended period of time.” By contrast, the USA Today incorrectly says categorically that “police cannot use” GPS devices without warrants.
The upshot of the coverage of Jones is that the American public now seriously misunderstands the law on a significant issue. The inevitable impression left by at least most of these pieces is that the police always have to get a warrant from a judge to use GPS tracking. That is simply not true. That question is at best unresolved, and at worst it may prove to be completely incorrect when the courts later addressing monitoring over the course of a short time.
Posted by Marcia Oddi on January 25, 2012 02:31 PM
Posted to Courts in general
Stage Collapse - "Bill would double fair victim's aid"
House Ways and Means Chairman Jeff Espich said the Ways and Means Committee will debate the proposal (House Bill 1376, currently a "vehicle" bill) on Wednesday and vote on it on Thursday or Friday, according to this story in today's Indianapolis Star by Mary Beth Schneider. More:
Daniels has asked the legislature to give more help to the families of the seven people killed in the stage collapse and the 58 people injured, some permanently impaired. State liability was capped at $5 million, and this bill would double that.“No amount of money makes (what happened) correct,” Espich said. “You just can’t make it right. I think what we can do is to make sure that all of these individuals receive a maximum amount of money allowable under law in terms of the individual cap.”
This bill would allow for the families of those who died to receive an additional $400,000, up from the $300,000 they have received from the state so far.
“You need $2.8 million to make those people whole, and whole is not fixed. It’s just the best you can do under current law,” Espich said.
Those injured, he said, filed $2.8 million in claims, and received $1.8 million for their hospital and other bills. This would add more than a million dollars for their reimbursement. In all, those injured and the estates of those killed would get about $4 million, with an additional million set aside for other state fair claims the state may face.
Posted by Marcia Oddi on January 25, 2012 02:07 PM
Posted to Stage Collapse
Ind. Courts - Long-time judge Charles C. Daugherty dies at 89
Here is the obituary from today's Indianapolis Star.
Posted by Marcia Oddi on January 25, 2012 02:01 PM
Posted to Indiana Courts
Courts - "WICHITA, Kan. -- U.S. Senior District Judge Wesley Brown has died at age 104"
Ron Sylvester of McClatchy Newspapers has the story in the Kansas City Star. The long, interesting story includes:
"I hope to be remembered as a good judge, and not just an old judge," Brown told The Eagle newspaper last year, sitting in his office.Federal judgeships are life-time appointments.Brown used to shake his head when he heard people talk about "activist judges" or push for the election of judges.
Brown said he took his lifetime appointment seriously, because of its important role in the separation of powers outlined in the U.S. Constitution.
"And I hope the courts can keep their independence and not be subservient to the pressures of other branches of government, or other special interests. It is this separation of powers that is vital to our democracy," Brown said on his 100th birthday. "It's what makes America what it is."
In Indiana Supreme Court and Court of Appeals judges by statute must retire upon reaching the age of 75. In 2011 the General Assembly passed SEA 463, which eliminated any mandatory retirement age for trial court judges.
For background, see this Feb. 9, 2011 ILB entry.
Posted by Marcia Oddi on January 25, 2012 01:50 PM
Posted to Courts in general
Ind. Decisions - Court of Appeals issues 2 today (and 13 NFP)
For publication opinions today (2):
In Natalie E. Murrell v. State of Indiana , a 9-page opinion, Sr. Judge Barteau writes:
Murrell raises three issues, which we restate as: I. Whether the finder of fact erred by rejecting Murrell’s defense of duress. II. Whether the penalty for Murrell’s Class C felony conviction violates Article I, Section 16 of the Indiana Constitution (“the proportionality clause”). III. Whether the case should be remanded to clarify Murrell’s sentence. * * *In Timothy Long v. State of Indiana, a 7-page opinion, Sr. Judge Sharpnack writes:At trial, Murrell conceded that she brought the contraband to the prison to give to Davis. She asserted a defense of duress, claiming that persons unknown to her had called her and threatened her with harm if she did not deliver the contraband to Davis. The trial court determined that Murrell was guilty and subsequently sentenced her to three years on the Class C felony conviction and one year on the Class A misdemeanor conviction, with all but one hundred and eighty days suspended to probation. This appeal followed. * * *
In this case, neither the trial court’s oral sentencing statement nor the written sentencing order identifies any grounds that would support the imposition of consecutive sentences. In the absence of such grounds, the trial court’s oral statement ordering Murrell to serve concurrent sentences is more appropriate. Consequently, we remand with instructions for the trial court to correct its written sentencing order to impose concurrent sentences upon Murrell’s convictions.
Timothy Long appeals his sentence for Class A misdemeanor operating a vehicle while intoxicated, Ind. Code § 9-30-5-2(b) (2001), and being a habitual substance offender, Ind. Code § 35-50-2-10 (2006). We affirm.NFP civil opinions today (7):Long raises one issue, which we restate as: whether the trial judge erred by rejecting the sentence imposed by the master commissioner who presided at the guilty plea hearing. * * *
On the facts before us, Master Commissioner Hall presided at Long’s guilty plea hearing. Because she did not preside at a criminal trial, she did not have the authority to enter a final judgment on Long’s sentence. Judge Brown therefore did not err by rejecting Master Commissioner Hall’s sentence and imposing her own sentence.
Kevin Walsh v. Chris Sweeney Construction, Inc. (NFP)
Michael D. Perkinson, Jr. v. Kay Char Perkinson (NFP)
Jennifer Hutchens v. Gregory Sausaman (NFP)
Kenneth W. Gibbs v. Indiana Parole Board (NFP)
Ellettsville Holdings, LLC v. Garnett D. Kinser (NFP)
NFP criminal opinions today (6):
Anthony Earl Coakley v. State of Indiana (NFP)
Jeremiah L. Hancock v. State of Indiana (NFP)
Ryan N. Myers v. State of Indiana (NFP)
Jameson Curry v. State of Indiana (NFP)
James Roby v. State of Indiana (NFP)
Anthony P. Wamue v. State of Indiana (NFP)
Posted by Marcia Oddi on January 25, 2012 01:28 PM
Posted to Ind. App.Ct. Decisions
Ind. Decisions - "Plaintiff’s counsel needlessly complicated the Court’s task of summarizing the relevant facts."
That is a quote from the beginning of a footnote on p. 2 of an 11/17/11 opinion by federal Judge Tanya Walton Pratt. The entire footnote:
Plaintiff’s counsel needlessly complicated the Court’s task of summarizing the relevant facts. Local Rule 56.1(b) requires non-movants to include a “Statement of Material Facts in Dispute” that responds to the movant’s asserted material facts “by identifying the potentially determinative facts and factual disputes which the nonmoving party contends demonstrate that there is a dispute of fact precluding summary judgment.” L.R. 56.1(b). Rather than identifying potential factual disputes in a concise fashion, Plaintiff’s counsel unfurled an 18-page narrative that is replete with argument and a 15-page surreply that is no better as it contains a great deal of immaterial information. (Dkt. 73 at 13) (“Perhaps Defendants would prefer the Court to require Plaintiff to use the unduly prolix and passive voice that most grammarians find to be an anathema to the Plain English movement that started in the Michigan Bar some 25 years ago.”); (Dkt. 73 at 7) (“There is no need to root around like a pig searching for a mushroom, only to use a mouse to click on the relevant portion of a deposition transcript.”). And, for reasons that remain unclear, the brief devotes a paragraph to explaining the 15th century origin of the phrase “cat’s paw,” a legal doctrine that is inapplicable to the present matter. (Dkt. 73 at 2-3). Accordingly, the Court had unnecessary difficulty excising the arguments from the facts when piecing together the background section.The opinion was highlighted in the Legal Writing Prof Blog on Jan. 23. The ABA Journal today picks it up and adds context.
Posted by Marcia Oddi on January 25, 2012 11:01 AM
Posted to Ind Fed D.Ct. Decisions
Ind. Courts - State of Indiana v. International Business Machines Corp. is now scheduled for oral argument for Monday, February 13 at 9:00 a.m.
Here is the Supreme Court's order, filed Jan. 9, 2012, granting the emergency petition to accept jurisdiction of the interlocutory appeal pursuant to Rule 56(A). From the Court:
Summary: In 2010, the State of Indiana sued International Business Machines Corp (IBM) for millions of dollars it had paid to the company before their contract was cancelled in 2009. IBM responded by filing a counter-suit of breach of contract, totaling $100 million. The trial court ruled that Governor Mitch Daniels cannot be excused from testifying about his knowledge of the contract with IBM. The case bypassed the Appellate Court and was granted transfer to the Indiana Supreme Court in January 2012.
Posted by Marcia Oddi on January 25, 2012 10:51 AM
Posted to Indiana Courts
Ind. Law - "Hunting preserves: Legislative efforts in the past focused on grandfathering the existing preserves only, but this bill goes further to open the industry to new operators"
Back again. The ILB has a very lengthy list of earlier entries on issues involving hunting preserves and canned hunting in Indiana.
Niki Kelly covers that history well in her long, comprehensive story today in the Fort Wayne Journal Gazette, headed "Captive hunting bill passes committee." A few quotes:
INDIANAPOLIS – Hunting preserves in which people pay thousands to shoot deer behind high fences would be legal under a bill that passed 8-4 Tuesday out of the House Natural Resources Committee.House Bill 1265 would legitimize four existing captive hunting sites in the state – including one in Kosciusko County – as well as open up the practice for new operators following specific guidelines. * * *
The bill would reverse state regulations on high-fenced hunting and end a languishing lawsuit that started in 2005 and is just part of the issue’s complicated past.
The controversy began to fester in the late 1990s when a few facilities sprang up under a game breeder’s license. The owners charged thousands of dollars for hunters to come in and shoot prized deer bred specifically for large antlers.
Many outdoors groups opposed the operations from the beginning, saying no Indiana law specifically authorized the activity.
But preserve owners argued nothing explicitly prohibited it either.
And Bruce received documentation from former Department of Natural Resources’ officials that the operations were legal. * * *
In August 2005, then-DNR Director Kyle Hupfer announced after extensive study and hearings that the existing shooting preserves were not allowed under current law. To remove confusion, he sought and passed administrative rules outlawing the preserves, and Gov. Mitch Daniels signed them.
Preserve owners sought an injunction to keep operating. At the time, there were about a dozen facilities but that has dropped to four partly because the owners are unable to plan long term and invest money in the operations, said Rep. Matt Ubelhor, R-Linton.
Dozens of supporters were at the Statehouse on Tuesday. The supporters largely consisted of those who run hundreds of deer and elk farms in the state who specifically grow deer to sell to shooting preserves.
They argued the farms and preserves are an economic development tool, bringing money from out-of-state hunters. * * *
Those against high-fenced hunting said Tuesday that simply having a fence violates the standards of fair chase because the animal can’t get away.
“It’s just plain unethical to shoot tame deer in a pen and call it sportsmanship,” said Chuck Bauer, a member of the Izaak Walton League of America.
Doug Allman, of the Indiana Deer Hunters Association, also testified against the bill, saying there are plenty of hunting opportunities available in the state without shooting hand-raised animals behind a fence.
Legislative efforts in the past focused on grandfathering the existing preserves only, but this bill goes further to open the industry to new operators. * * *
DNR officials kept silent on the bill Tuesday, though it is a 180-degree turn from prior leadership that fought to end the practice.
Posted by Marcia Oddi on January 25, 2012 10:08 AM
Posted to Indiana Law
Ind. Law - Status of massive bill to eliminate commissions, boards, and committees, including environmental boards
HB 1002, about which the ILB had a lengthy entry on Jan. 21, 2012, has now been reprinted so that one can read the committee changes in context. Here is the Jan. 23 printing. The bill is not yet, however, on the House 2nd reading calendar.
Meanwhile, SB 130, which would abolish the separate APCB, WPCB, and SWMB, and create a new "rules" board, passed the Senate on Jan. 23, by a vote of 50-0. See this Jan. 21st ILB entry for background.
Posted by Marcia Oddi on January 25, 2012 09:51 AM
Posted to Environment | Indiana Law
Ind. Law - "Hairdressers may have killed bill that would eliminate licensing"
Maureen Hayden, CNHI Statehouse Bureau, reports today on the status of HB 1006. Here is the bill digest:
Regulated occupations. Provides that optometrists may prescribe, dispense, and administer controlled substances. Repeals the law governing the following professions, including their professional licensing boards and licenses: (1) Beauty culture (cosmetologists and barbers). (2) Commission on dietetic registration and licensure of dietitians. (3) Hearing aid dealers. (4) Private investigator firms. (5) Security guards. Makes conforming and technical changes.From the long story:
INDIANAPOLIS — A throng of union protesters haven’t been able to stop a controversial labor bill in the Indiana Statehouse, but a force of hairdressers may have killed a piece of legislation they loathe.ILB: The Regulated Occupations Evaluation Committee is a statutory committee (IC 25-1-16), created in 2010 by PL 84 (SEA 356, authored by Sen. Delph). Sec. 10 provides:On Tuesday, a hearing on a bill to eliminate licensing requirements for cosmetologists, barbers and a handful of other occupations was abruptly canceled after an outpouring of protest. The bill is expected to be pulled from the session or significantly amended.INDIANAPOLIS — A throng of union protesters haven’t been able to stop a controversial labor bill in the Indiana Statehouse, but a force of hairdressers may have killed a piece of legislation they loathe.
On Tuesday, a hearing on a bill to eliminate licensing requirements for cosmetologists, barbers and a handful of other occupations was abruptly canceled after an outpouring of protest. The bill is expected to be pulled from the session or significantly amended. * * *
[T]he bill would have made Indiana the only state in the nation without licensing requirements for hairdressers and barbers.
The bill came out of a legislative study committee that recommended the elimination of the licensing boards as a way to reduce unnecessary government regulation. * * *
The bill [Rep. David Wolkins] carried was recommended by the Regulated Occupations Evaluation Committee, a legislative study committee created to look at regulations that cover the state’s licensed professions and occupations. The committee is chaired by John Graham, dean of the Indiana University School of Public and Environmental Affairs.
The committee found that licensing requirements for some occupations were excessive and weren’t needed to protect the public.
Haire said legislators didn’t understand the bill’s implications. “I’d like see what they’d say if one of them showed up with scabies or lice after going to an unlicensed hairdresser,” Haire said. “There are things they could do to improve licensing, but this isn’t it.”
The committee shall establish a schedule to review and evaluate each regulated occupation. Each regulated occupation must be reviewed and evaluated at least every seven (7) years.In short, we can expect to see more of these bills.
The committee chair, John D. Graham, SPEA Dean, is an academic knowledgeable in risk analysis.
Posted by Marcia Oddi on January 25, 2012 09:16 AM
Posted to Indiana Law
Tuesday, January 24, 2012
Courts - "Why the GPS-Tracking Case is Just the Beginning for the Supreme Court"
See Nicholas J. Wagoner's Circuit Splits Blog post today under that heading. A sample:
It's worth noting that when the Court first surveyed the privacy landscape some forty years ago in Katz v. U.S., telephones were connected by wires and global positioning required a map and compass. Today, however, modern technology allows us to connect by "texting," "tweeting," or "facebooking." And finding our precise latitude and longitude on the globe is a matter of simply turning on our cell phones.
Posted by Marcia Oddi on January 24, 2012 07:48 PM
Posted to Courts in general
Ind. Courts - Still more on: Indianapolis attorney allegedly stole about $600,000
"Lawyer Charged With Cheating Alzheimer's Patient" is the headline to a WRTV 6 story today.
Posted by Marcia Oddi on January 24, 2012 01:47 PM
Posted to Indiana Courts
Ind. Gov't. - Interesting Twitter exchange between reporters just now
Mary Beth Schneider Just blocked by state trooper from going down hallway to my office. Had to run up a floor, take elevator up then back down. Really!
Guess is that #INGov Daniels was coming down hall too. But geesh! I remember when he and I could cordially share a hallway.
Niki Kelly @marybschneider Nowadays they make sure he can't possibly interact with Hoosiers in this building.
Posted by Marcia Oddi on January 24, 2012 01:40 PM
Posted to Indiana Government
Law - Prison as a fact of life
For most privileged, professional people, the experience of confinement is a mere brush, encountered after a kid’s arrest, say. For a great many poor people in America, particularly poor black men, prison is a destination that braids through an ordinary life, much as high school and college do for rich white ones.That is a quote from a new article by Adam Gopnik in The New Yorker, highlighted in this post today in the Sentencing Law blog.
Posted by Marcia Oddi on January 24, 2012 01:35 PM
Posted to General Law Related
Ind. Gov't. - More on: First hand bad experience with new parking meters!
Updating this ILB entry from yesterday, here is attorney Paul Ogden's new post.
Posted by Marcia Oddi on January 24, 2012 01:13 PM
Posted to Indiana Government
Environment - "Still no new rules on odor, scum in lakes: IDEM is moving slowly, and the Legislature may not move at all"
A lengthy story today in the Muncie Star-Press by Seth Slabaugh. Some quotes:
MUNCIE -- The Indiana Department of Environmental Management is finally taking steps to address phosphorus pollution that has caused taste and odor compounds in drinking water as well as human health risks in Indiana's lakes and reservoirs.ILB: Those anti-degradation rules have been scheduled for a Water Pollution Control Board that has been canceled several times now - i.e. Jan. 11, 2012 and Feb. 8, 2012. And the Board packet containing the draft rule has now been removed from the WPCB meetings site. Here is the long history.However, it appears the state Legislature will again turn its back on the phosphorus problem, the primary cause of lake eutrophication and resulting algal blooms.
"It is not likely that House Bill 1032 will get a hearing," Casey Arqawi, press secretary for state Rep. Dick Dodge, R-Pleasant Lake, said on Monday. * * *
The bill, which would place restrictions on the application of lawn fertilizer containing phosphorous, was originally placed in the House Committee on Natural Resources, but then it got transferred to the Committee on Environmental Affairs.
In late August 2011, state officials found high levels of blue-green algae, also known as cyanobacteria, at eight of 13 public swimming beaches sampled, including Potato Creek State Park, Chain O'Lakes State Park and Raccoon State Recreation Area. In addition, sampling by Indiana University-Purdue University at Indianapolis found high levels of cyanobacteria in Geist, Morse, Eagle Creek and Patoka reservoirs.
Central Indiana residents may recall a blue-green algal bloom in Prairie Creek Reservoir during the spring of 2010. The event produced remarkably large concentrations of taste and odor compounds called MIB and geosmin that affected 700,000 drinking water customers in Muncie, Indianapolis and other communities. * * *
Bruno Pigott, an assistant commissioner at the Indiana Department of Natural Resources (IDEM), said the agency was making rules to establish numeric standards for phosphorus in lakes. He said the rule-making process would take 18 months.
That was 18 months ago. What is the status of the rule-making today?
"We are in the midst of adopting new eutrophication criteria for natural lakes and reservoirs, including total phosphorus and chlorophyll a," Shivi Selvaratnam, a technical water quality specialist at IDEM, said in a recent interview. "There are only a handful of technical folks working on rule making at the agency. I was working on different rule-making that had a higher priority for the agency. Now that that rule-making is nearing completion, I can focus on nutrient rule making."
The higher priority for the agency was establishing "anti-degradation" standards to preserve the quality of water that is cleaner than minimum standards, she said.
Here is a long list of earlier ILB entries on phosphorus.
Posted by Marcia Oddi on January 24, 2012 11:54 AM
Posted to Environment
Ind. Decisions - Court of Appeals issues 3 today (and 4 NFP)
For publication opinions today (3):
Violet M. Lockett v. Peggy Hoskins a/k/a Peggy J. Smith - "In the absence of valid legal conclusions justifying an award of attorney’s fees, the trial court’s grant of fees to Hoskins was an abuse of discretion and must be reversed. Furthermore, because this appeal is resolved in favor of Lockett, Hoskins’ request for appellate attorney’s fees is without merit and must be denied."
In Jessica Bowling v. State of Indiana , a 12-page opinion, Judge Crone writes:
In 2006, Jessica Bowling agreed to plead guilty to class A felony neglect of a dependent, and the State agreed to a cap of forty years on the executed portion of her sentence. Along with the plea agreement, Bowling signed a written advisement and waiver of rights that contained the following provision: “By pleading guilty you have agreed to waive your right to appeal your sentence so long as the Judge sentences you within the terms of your plea agreement.” The trial court sentenced Bowling to forty years, executed.In James R. Johnson v. State of Indiana, a 10-page opinion, Judge Vaidik writes:In 2011, Bowling filed a petition for permission to file a belated notice of appeal pursuant to Indiana Post-Conviction Rule 2. The State argued that Bowling waived her right to appeal her sentence pursuant to the aforementioned provision. The trial court agreed with the State and denied Bowling's petition. Bowling appeals, arguing that the waiver should not be enforced because it is a misstatement of law. We conclude that the waiver is valid and therefore affirm the trial court.
James R. Johnson appeals the post-conviction court’s denial of his petition for post-conviction relief. Because the record shows that Johnson pled guilty to Class A felony child molesting at the same time he maintained his innocence, the trial court erred in accepting Johnson’s guilty plea to the Class A felony. Accordingly, the post-conviction court erred in denying Johnson’s petition for post-conviction relief. We therefore reverse and remand for further proceedings.
NFP civil opinions today (1):
NFP criminal opinions today (3):
Jeremiah Brown v. State of Indiana (NFP)
Cordell G. Gage v. State of Indiana (NFP)
Terry York v. State of Indiana (NFP)
Posted by Marcia Oddi on January 24, 2012 11:11 AM
Posted to Ind. App.Ct. Decisions
Ind. Decisions - One today from the Supreme Court
In Antoine Hill v. State of Indiana, a 17-page, 4-1 opinion, Justice David writes:
The present case involves several petitions under Indiana’s Post-Conviction Rules. Indiana Post-Conviction Rule 1 permits, among other things, a defendant to file a petition challenging the performance of his trial, appellate, or post-conviction counsel. Indiana Post-Conviction Rule 2 permits, among other things, a defendant to petition the trial court for permission to pursue a belated direct appeal.Here, the defendant’s counsel filed a Post-Conviction Rule 2 petition, seeking permission to file a belated notice of appeal. The trial court denied permission, and counsel did not timely appeal this denial. Subsequently, defendant, through different counsel, filed a Post-Conviction Rule 1 petition, alleging that his Post-Conviction Rule 2 counsel was ineffective for failing to timely appeal the trial court’s denial of permission to file a belated notice of appeal.
We hold that the appropriate standard for judging the performance of Post-Conviction Rule 2 counsel is the standard set forth in Baum v. State, 533 N.E.2d 1200 (Ind. 1989). We further hold that Post-Conviction Rule 2 counsel in this case did not violate Baum because she represented the defendant in a procedurally fair setting which resulted in a judgment of the court. * * *
Conclusion. We conclude that the Baum standard, and not the Strickland standard, is appropriate for evaluating the performance of P-C.R. 2 counsel. Because P-C.R. 2 counsel Reed did not deprive Hill of a procedurally fair setting, Reed did not violate Baum. On that basis, we affirm the decision of the trial court denying Hill’s P-C.R. 1 petition.
Shepard, C.J., and Dickson, J., concur.
Sullivan, J., concurs in result with separate opinion.
Rucker, J., dissents with separate opinion.
[Justice Sullivan's concurring opinion begins, at p. 4] I write separately because I believe that Strickland v. Washington, 466 U.S. 668 (1984), articulates the correct standard for measuring whether counsel rendered ineffective assistance as a matter of constitutional law when counsel failed to appeal the denial of Hill’s request to file a belated direct appeal.
[Justice Rucker's one-paragraph dissent on p. 17 concludes] But at the end of the day all Hill seeks is appellate review of his fifty-two year sentence, something he has thus far been denied. Our rules should not be applied so rigorously or our case law dissected so finely as to deny a defendant in Hill’s position the opportunity to make his best effort in challenging the sentence imposed. As this Court has observed, “‘[a]lthough our procedural rules are extremely important, it must be kept in mind that they are merely a means for achieving the ultimate end of orderly and speedy justice. We must examine our technical rules closely when it appears that invoking them would defeat justice; otherwise we become slaves to the technicalities themselves and they acquire the position of being the ends instead of the means.’” Meredith v. State, 679 N.E.2d 1309, 1311 (Ind. 1997) (quoting Am. States Ins. Co. v. State, 283 N.E.2d 529, 531 (Ind. 1972)). Applying this principle to the case before us, I join my colleagues on the Court of Appeals and conclude that Hill should be allowed to appeal the denial of his petition to file a belated direct appeal. Therefore I respectfully dissent.
Posted by Marcia Oddi on January 24, 2012 10:49 AM
Posted to Ind. Sup.Ct. Decisions
Ind. Law - Ind. Tech's new law school building location announced
Recall that Indiana Tech is starting a new law school in Indiana. Today, an announcement that begins:
Fort Wayne, Ind. – Indiana Tech officials announced on Tuesday that the university will build a 70,000-square-foot facility on its main campus to house its law school.The university’s plan to open a law school in 2013 was announced in May 2011. Since then, officials have been weighing the pros and cons of an on-campus location vs. a downtown Fort Wayne location.
“We seriously considered several possibilities but ultimately decided that constructing a new facility on our campus is the best way to serve our future law students,” said Indiana Tech President Arthur E. Snyder.
Posted by Marcia Oddi on January 24, 2012 10:41 AM
Posted to Indiana Law
Courts - Retroactivity of SORNA
The ILB has had a number of entries, including this one from June 1, 2010, on the question of the retroactivity of SORNA, the federal Sex Offender Registration and Notification Act. Yesterday, in Reynolds (ILB entry here), the SCOTUS decided, according to this brief AP story:
The Supreme Court says rules requiring sex offenders to update their registration when crossing state lines don’t automatically apply to those who committed their crimes before the law was passed.This post by Prof. Doug Berman at Sentencing Law Blog explains:The high court ruled 7-2 that Billy Joe Reynolds can challenge his arrest for violating the Sex Offender Registration and Notification Act.
[V]ia a 7-2 ruling in Reynolds v. US, the Justices provide an explanation about when and to whom SORNA applies to folks who committed sex offense prior to the act.
Posted by Marcia Oddi on January 24, 2012 10:30 AM
Posted to Courts in general
