Sunday, May 11, 2008
Law - "U.S. Legal Work Booms in India: New Outsourcing Industry Is Growing 60 Percent Annually" triggered by E-discovery rules
Rama Lakshmi of the Washington Post Foreign Service reports today:
GURGAON, India -- When Aashish Sharma graduated from law school two years ago, his father had visions of seeing him argue in an Indian court and eventually become an honorable judge.Instead, Sharma, 25, now sits all day in front of a computer in a plush, air-conditioned suburban office doing litigation research and drafting legal contracts for U.S. companies and law firms. He is part of a booming new outsourcing industry in India that employs thousands of English-speaking lawyers such as him to do legal work at a small fraction of the cost of hiring American lawyers. * * *
Legal process outsourcing is being called the next big thing in Indian business. It marks India's climb up the chain of outsourcing jobs -- from low-end, back-office service functions in call centers to high-value, skilled legal work.
In the past three years, the legal outsourcing industry here has grown about 60 percent annually. According to a report by research firm ValueNotes, the industry will employ about 24,000 people and earn revenue of $640 million by 2010.
Indian workers who once helped with legal transcription now offer services that include research, litigation support, document discovery and review, drafting of contracts and patent writing. The industry offers an attractive career path for many of the 300,000 Indians who enroll in law schools every year. India and the United States share a common-law legal system rooted in Britain's, and both conduct proceedings in English.
The explosion of opportunity here was triggered by what are known as "e-discovery laws," a set of U.S. regulations established in 2006 to govern the storage and management of electronic data for federal court actions. Overnight, the volume of information to be stored, archived, filtered and reviewed for litigation swelled. But there were not enough affordable lawyers or paralegals to do the work in the United States.
"The new e-discovery rules sent American companies scurrying all over the place. Neither the corporates nor the law firms in America are geared to do this kind of work at short notice. And that is where the Indian players come in. We can bring together a large number of skilled lawyers in no time at all and at one-fifth the cost," said Srinivas Pingali, executive vice president at Quatrro, which also offers technical support, credit card fraud management, consumer research and architectural services for American clients, among other work. * * *
"Ninety percent of a lawyer's work is legal research and drafting, and all this can now be offshored to India," said Russell Smith, who worked in a Manhattan law firm called SmithDehn before moving to India to set up an outsourcing company in 2006. "A large portion of our fees in the U.S. is because of office rent. It is often a big decision to hire one attorney in the U.S. In India, we can hire 10 at a time and train them all at once." * * *
"My people in India can do everything from here, except sign the opinion letter and appear in an American court," he said.
Smith's Indian office recently researched and drafted the motion papers for the dismissal of a libel case against the producers of HBO's "Da Ali G Show." Smith said that if it had not been for the cheaper option of outsourcing, the producers would have settled.
Posted by Marcia Oddi on May 11, 2008 04:33 PM
Posted to General Law Related
Ind. Courts - Update on Supreme Court's case management system plans
"Current Activities and Next Steps" is the heading to this JTAC report posted recently on the Court website. It outlines the counties where the JTAC case management system is planned to be deployed during the next two years: "JTAC will work to make Odyssey available to all courts in the following counties: DeKalb, Allen, Huntington, Hamilton, Madison, Clark, Harrison, Floyd."
Statistics. The report notes:
Thousands Taking Advantage of Free Public Access. Public information on cases logged into Odyssey is available at no charge via the Supreme Court’s website (www.courts.in.gov).Perhaps. It is hard to know how to interpret these stats because each counter system is different. Because of that, most blogs (including the ILB) use Sitemeter so that stats are more readily compared.During March 2008, more than 5,500 unique visitors used the website, viewing more than 216,000 pages. The convenience of the web-based access is evident by the number of users viewing documents 24 hours a day. While there were an average of 24,000 page hits between 3-4 p.m., there were also 860 hits between 3-4 a.m.
During March, when the Court reported 5,500 unique visitors, for instance, the ILB had 33,841. On the other hand, during March, when the Court reports 216,000 "page views", the ILB had 54,679. (Here is a link to the ILB's counter. There does not appear to be a link to the Court's counter.)
Page view figures are difficult to interpret. What is a "page"? Some counters count "hits" as pages, so that each file sent to a browser by a web server is an individual hit. On the other hand, according to one tracking site:
a page view is each time a visitor views a webpage on your site, irrespective of how many hits are generated. Pages are comprised of files. Every image in a page is a separate file. When a visitor looks at a page (i.e. a page view), they may see numerous images, graphics, pictures etc. and generate multiple hits.The ILB's meter counts pages, not hits. It appears possible that the court meter is counting "hits," so that when one does a search and gets a list of filings, rather than counting this as one page, each item on the list is counted individually.
Counties to be Covered. Currently the Court CMS project is covering Monroe County and Washington Twp. in Marion County. DeKalb, Allen, Huntington, Hamilton, Madison, Clark, Harrison, Floyd are listed as to be added in the next two years.
As discussed in this ILB entry from March 30th, JTAC has been unwilling to allow private companies to tap into the new Monroe County CMS. One of these companies, Doxpop, which has a network of 136 courts in 45 Indiana counties, had previously included Monroe County in its network. Since the JTAC CMS system was installed, however, Doxpop has been denied access, as detailed in the March 30th entry. The situation continues to remain unresolved.*
Will this continue to be a problem with the new list of counties? Are there overlaps? I've compared the JTAC list against the list of counties Doxpop currently serves. The counties in boldface in the JTAC list are currently part of Doxpop's network: DeKalb, Allen, Huntington, Hamilton, Madison, Clark, Harrison, Floyd. Interestingly, Allen County (civil cases only) was just announced by Doxpop last week.
____________
*Instead it is becoming much more onerous for counties to receive approval per Trial Rule 77(k) for public posting of Court Records on-line. The ILB has been told that the paperwork burden the counties and the provider have to submit to the Division of State Court Administration annually has increased substantially. I'm also told that the county courts are being told that "if the courts in your county elect to use the (JTAC) Odyssey case management system, you will not need to go through the renewal process set forth below ...".
Posted by Marcia Oddi on May 11, 2008 12:23 PM
Posted to Indiana Courts
Ind. Courts - Unsolved Tippecanoe County Courthouse bombing nearly ten years old
"Time is ticking on courthouse cold case" is the headline to this Sophia Voravong report today in the Lafayette Journal & Courier. Some quotes:
Just after 10:09 p.m. on Aug. 2, 1998, sheriff's Deputy Tom Lehman was dispatched to investigate reports of a fire at the Fourth Street entrance of the Tippecanoe County Courthouse.From a side-bar:
AdvertisementHe didn't know what to make of learning that a pickup truck had driven into the building. More confusion set in when firefighters found an explosive device in the truck's bed.
"We were trying to figure out why someone would do that," Lehman recalled recently. "What in the world could they have been thinking?"
For the past year, Lehman, now a sheriff's detective, has been working with the FBI and the Bureau of Alcohol, Tobacco, Firearms and Explosives to find the person or people responsible for the attempted bombing.
Investigators have just three months before a 10-year federal statute of limitations for arson and related crimes runs out, said David Capp, interim U.S. Attorney for the Northern District of Indiana.
"Our time is clicking," he said.
No suspects were ever publicly named. No one has been charged.
But Lehman said investigators looked at "a lot of people" considered persons of interest.
Authorities since last spring have been going over all documents related to the initial investigation, making sure that each lead has been followed up.
"There was so much confusion around that time, to be honest," Lehman said. "We're trying to make sure that nothing has been overlooked."
Capp, who was with the U.S. Attorney's Office when the attempted bombing occurred, said the idea was that fresh sets of eyes would perhaps find details that had been missed.
He said investigators have been working regularly on the case. More information could be released soon.
"What we really need is for any member of the public who thinks they might know something to contact us -- even if in their minds, that information is insignificant," Capp said. "We want to talk to them and can keep things confidential, so they don't have to be concerned about that."
Lehman said authorities are working to put together a hot line to report tips anonymously. They also are trying to figure out the exact amount of reward money available for anyone who may have information that could lead to a conviction.
The next year, metal detectors were installed in the courthouse, placed at the front of County Court 2 -- now Superior Court 5 -- and Superior Courts 1 and 3.Additional security updates were made after a series of bomb threats following the Sept. 11, 2001, terrorist attacks. In 2003, all but two entrances were closed, with the public entering on Fourth Street.
The public entrance was switched to Columbia Street in August 2006.
People entering the courthouse are required to empty their pockets, go through a metal detector and send their personal belongings through an X-ray machine to be examined for potential weapons.
Posted by Marcia Oddi on May 11, 2008 12:15 PM
Posted to Indiana Courts
Ind. Gov't. - "Same-sex benefits decision tabled" at Univ. Southern Indiana
Kate Braser's report today in the Evansville Courier & Press includes these quotes:
The University of Southern Indiana board of trustees opted not to vote on a resolution Saturday that would have extended employment benefits to same-sex domestic partners.University President H. Ray Hoops earlier had submitted the resolution to the board agenda. He said USI is the only four-year public university in the state that does not provide the benefit.
The vote originally was slated for the end of Saturday's meeting, but trustee Ted C. Ziemer Jr. addressed the board at the beginning, asking that the item be removed from consideration.
"I would object to voting on this resolution at this time so that all relevant information can be gathered," Ziemer said. "I have some concern this resolution would be unconstitutional and illegal under state law, and I think we need time for our administrators to get legal opinions." * * *
Opposition had surfaced quickly after word spread of the proposal.
Keller Schroeder & Associates, a local technology consulting company, sent a letter to the university asking it to reject the resolution.
Also, Glen Kissel, assistant professor of engineering, said as of midday Friday, more than 2,500 e-mails opposing same-sex domestic partner benefits had been sent to Hoops and the board of trustees, as well as to Gov. Mitch Daniels. He said the e-mails came from supporters of the American Family Association of Indiana.
Kissel was among several at the meeting who said they were pleased the trustees opted not to address the resolution.
"I think it was wise to delay the decision until more consideration can be given," said Mike Lockard, a USI alumnus.
Lockard said he agreed officials needed to study Indiana law further. He also said extending benefits to same-sex domestic partners "creates a separate class."
"What about heterosexual partnerships?" he asked.
Lockard said while other state schools may offer the benefit, many private colleges in the state do not, and he disagreed with the assertion it would attract better candidates to faculty positions.
"What is wrong with the faculty here now?" he asked. "I went to school here, and my daughter does now, and this is a fine school. It's not been a detraction up until now."
Kissel previously said he wanted the university to consider a more inclusive plan that would extend domestic partner benefits beyond same-sex relationships. After Saturday's removal of the item from the agenda, Kissel said he was pleased.
"I am very happy the discriminatory homosexual-only domestic partner benefit has been set aside," he said.
Chad Tew, associate professor of online journalism, said he has been active in trying to get the resolution in front of the trustees.
"I am very disappointed they tabled it," he said. "It doesn't mean it was defeated, so in that sense I am hopeful. I can tell you the majority of faculty are behind this, and we will work with the administration in any way to give the board the information they need.
"I don't buy that objection with relation to it being a legal issue. The states that have had problems have been those states with a constitutional amendment defining marriage as between man and woman, and that was defeated soundly in Indiana."
Posted by Marcia Oddi on May 11, 2008 12:06 PM
Posted to Indiana Government | Indiana Law
Ind. Decisions - Yet more on: Lethal injection case heard before SCOTUS
Following on earlier ILB entries on lethal injection, from Yahoo News today:
CHATTANOOGA, Tenn. - Supreme Court Justice John Paul Stevens says the euthanized Kentucky Derby horse Eight Belles probably died more humanely than death row prisoners do.Stevens's comments Friday night came a month after he voted with a majority of the Supreme Court to approve the most widely used method of lethal injection, while saying for the first time that he now believes the death penalty is unconstitutional.
According to the Chattanooga Times Free Press, Stevens told an audience of judges and lawyers that he checked into the procedure used to kill Eight Belles and was surprised to learn it is against the law in Kentucky to kill animals using one of the drugs in a three-drug lethal injection cocktail that many states, including Kentucky, use to execute prisoners. * * *
In its 7-2 ruling last month, the Supreme Court turned back a challenge to the execution procedures in place in Kentucky, which employ three drugs to sedate, paralyze and kill inmates. Similar methods are used by roughly three dozen states.
The argument against the three-drug protocol is that if the initial anesthetic does not take hold, the other two drugs can cause excruciating pain. One of those drugs, a paralytic, would render the prisoner unable to express his discomfort.
In his opinion, Stevens suggested that states could spare themselves legal costs and delays in executions by eliminating the use of the paralytic.
Posted by Marcia Oddi on May 11, 2008 12:00 PM
Posted to Indiana Decisions
Saturday, May 10, 2008
Ind. Decisions - "Appeals court rules laser hair removal is not health care"
The May 8th Court of Appeals opinion in the case of OB-GYN Associates of Northern Indiana, P.C. v. Tammy Ransbottom (see ILB summary here - 5th case) is the subject of a story today by Jeff Parrott of the South Bend Tribune that begins:
The Indiana Court of Appeals has ruled that cosmetic laser hair removal, a growing trend nationally, is not "health care," clearing the way for two women's negligence lawsuits to proceed.Tammy Ransbottom of North Liberty and Mary Maxie of Mishawaka last year sued OB-GYN Associates of Northern Indiana, of South Bend, over burns and permanent disfigurement they say they suffered during cosmetic laser hair removal. Specifically, they claim a nurse who performed the procedures, without a doctor present, had set the laser device too high.
OB-GYN Associates, a medical practice, asked St. Joseph County Circuit Court Judge Michael Gotsch to dismiss Ransbottom's suit, arguing the procedures were medical in nature and therefore were subject to Indiana's Medical Malpractice Act.
Such a finding would have required the plaintiffs to initially file their complaints with a three-physician "medical review" panel, under the auspices of the Indiana Department of Insurance. If the panel had found their claims were not frivolous, Ransbottom and Maxie could have filed suit in court, the process all claims of medical malpractice follow in Indiana. * * *
Attorney Vincent Campiti, representing Maxie and Ransbottom, said they are glad not to have to undergo the medical review panel process, which can take a year or two itself before a court case even begins. "This will mean a lot less expense; it's less time-consuming and it gives us immediate access to the courts," Campiti said.
Being allowed to pursue the cases as simple negligence lawsuits also exempts them from the $1.2 million damages cap to which medical malpractice cases are subject, Campiti said, while noting he has no idea whether his clients' damages will be that high.
Posted by Marcia Oddi on May 10, 2008 11:32 AM
Posted to Ind. App.Ct. Decisions
Ind. Courts - Lake Superior Court judge's signature allegedly forged on order
Marisa Kwiatkowski of the NWI Times reports:
CROWN POINT | A former probation department secretary forged a Lake Superior Court judge's signature to stop the garnishment of her wages, according to a Lake County police report.The garnishment was ordered out of the woman's county paycheck last September to pay off a more than $21,000 debt she owed to Fairlane Credit LLC, court records show.
No charges had been filed against the woman as of Friday. Lake County Prosecutor Bernard Carter said there is insufficient evidence to prove it was the woman who forged the order.
The doctored order was discovered late last year when an attorney for Fairlane Credit LLC, the plaintiff in the credit case against the woman, complained it was not receiving its money.
Lake Superior Court Judge Elizabeth Tavitas had granted an order Sept. 6 to garnish the woman's wages to pay off the debt, court records show.
Thirteen days later, an order reversing the garnishment was filed in the clerk's office with what appeared to be Tavitas' signature, according to a document file stamped Sept. 19.
Tavitas and her magistrate were out of town at an Indiana judicial conference Sept. 19, according to Tavitas' secretary.
The woman used her position with the Lake County Criminal Court Probation Department to sign Tavitas' name and file stamp the order, a Lake County police report alleges.
Posted by Marcia Oddi on May 10, 2008 11:26 AM
Posted to Indiana Courts
Ind. Courts - "Chris Teagle to succeed Lennington on bench"
Rick Yencer reports today in the Muncie Star-Press:
MUNCIE -- Republican attorney Chris M. Teagle next week will succeed Democrat Wayne Lennington as judge of Delaware Circuit Court 5.Gov. Mitch Daniels announced the appointment Friday afternoon, hours before a local roast of Lennington, who has resigned effective May 15 in the wake of a probe by a state commission that oversees judicial conduct, and a criminal investigation by local and state authorities.
Teagle, 48, was the only person who applied for the job, according to Brad Rateike, spokesman for the governor.
"(Teagle) was chosen because he possesses the qualities Gov. Daniels looks for in a good judge," Rateike said. "He is extremely intelligent, experienced, fair, and above all else, a man of integrity." * * *
Teagle also is the Republican nominee for the Circuit Court 5 bench and will face veteran lawyer Tom Cannon Jr., who won the Democratic nomination on Tuesday, in the Nov. 4 general election. * * *
Circuit Court 1 Judge Marianne Vorhees, the county's presiding judge, was glad the appointment came quickly. Other judges have handled a portion of Lennington's caseload since he agreed to give up jurisdiction of criminal cases after reports of investigations into his business dealings and judicial conduct.
"Hopefully, we can get back to some normalcy," Vorhees said.
Teagle's appointment is effective May 16, the day after Lennington's resignation takes effect.
Posted by Marcia Oddi on May 10, 2008 11:20 AM
Posted to Indiana Courts
Ind. Courts - "Colleagues put retiring judge Wayne Lennington on hot seat"
For background, see this ILB entry from May 3rd, headed "Lennington scandal could play role in race for Delaware Circuit Court 5."
Today Rick Yencer of the Muncie Star-Press reports:
Three generations of Lenningtons have practiced law or served as Delaware County judges over the past century.On Friday, members of the Muncie Bar Association and county court system paid their respects to Delaware Circuit Judge 5 Wayne J. Lennington, who is retiring next week, with a good-hearted roast at Springwater Park.
More than 100 people, including friends and family of Lennington, heard plenty of courtroom tales about Lennington's life as a lawyer and judge.
Lennington, 77 -- who resigned this spring amid a judicial conduct review and criminal investigation into his business dealings -- said he was looking for a job, but is likely to continue practicing law. * * *
Attorney Charles "Chic" Clark, Lennington's legal counsel in dealings with the state disciplinary commission, recalled telling his client to let his attorney do the talking when news of the disciplinary settlement came.
"Less than 24 hours after that conversation, I was reading my newspaper and that dumb ---- made a quotation in the newspaper," Clark said.
Clark's next conversation was with Meg Babcock, counsel for the Indiana Judicial Qualifications Commission, who was upset with Clark over Lennington's remarks.
"Don't raise hell with me," Clark recalled telling Babcock. "He did it." * * *
One of the biggest laughs came just before Lennington's longtime friend, attorney Don Dunnuck, spoke.
Ralph and Vicki Craig, a member of Lennington's court staff, led in a donkey wearing a judicial robe and Lennington's trademark bow tie.
Posted by Marcia Oddi on May 10, 2008 11:13 AM
Posted to Indiana Courts
Ind. Gov't. - "GOP's Zoeller declares for attorney general race"
The Louisville Courier Journal reports:
New Albany native Greg Zoeller said yesterday that he has filed his formal "declaration of candidacy" for state attorney general with the Indiana Republican State Committee.
AdvertisementZoeller is chief deputy to Indiana Attorney General Steve Carter, who has announced that he will not seek re-election. * * *
Each party selects a nominee for attorney general at its state convention. The Republican convention is June 2.
In addition to Zoeller, Valparaiso Mayor Jon Costas has said he intends to seek the Republican nomination for the office.
Posted by Marcia Oddi on May 10, 2008 09:11 AM
Posted to Indiana Government
Ind. Decisions - More on: Federal court grants preliminary injunction re judicial speech rights
Updating this ILB entry from May 6th, the Fort Wayne Journal Gazette has an editorial today headed "Free speech for judges":
The Indiana Supreme Court should accept the message in a ruling by a Fort Wayne federal judge in a case involving a candidate for Kosciusko Superior Court and restore the First Amendment rights of judicial candidates.In understanding the Indiana Supreme Court's position, it may be useful to review the detailed Indiana Right to Life Questionnaire.U.S. District Court Judge Theresa Springmann ruled this week that the state’s highest court temporarily cannot enforce its rules that effectively prohibit judicial candidates from responding to questionnaires about their positions on issues. State judicial canons of ethics prohibit attorneys seeking judgeships from making “pledges or promises of conduct in office other than the faithful and impartial performance of the duties of the office.”
The ruling came about 18 months after another federal judge struck down the Indiana rule. A federal appeals court overturned that decision, however, ruling that the group that brought the case, Indiana Right to Life, was not directly affected and lacked proper standing.
Springmann’s decision came, appropriately, on Tuesday, the same day that one of the candidates involved in the case, Torrey Bauer, was narrowly defeated in the Kosciusko County Republican primary for a Superior Court nomination. Bauer, unaware that the earlier ruling had been reversed, had filled out a questionnaire from Indiana Right to Life and feared he would face disciplinary action. Because he and a sitting judge filed the case along with Indiana Right to Life, the issue of proper standing should not block this case from succeeding.
The current rules exist for good reason. A judge must weigh each case on its own facts and applicable law, and improper statements made during a campaign can portray a judge as deciding how he or she will handle a case before hearing it.
But voters have a right to hear candidates’ opinions on issues, and in 2002, the U.S. Supreme Court threw out similar rules in Minnesota.
Attorney James Bopp Jr. successfully argued this week’s case. Bopp said Indiana’s rule goes too far, infringing on the First Amendment rights of judicial candidates. Indiana can still have a rule barring candidates from saying how they would rule on specific cases, he said, without prohibiting them from commenting on broader issues.
And if a candidate says too much about specifics, voters will react accordingly. “Voters want impartial judges,” Bopp said. “If a judicial candidate goes too far, he’s going to actually lose votes.”
Indeed, how much discretion a candidate uses in campaigning could well give voters insight into how the candidate would serve on the bench.
By issuing a preliminary injunction, Springmann ruled that the plaintiffs are likely to prevail in a trial, though the court has yet to rule on the merits of the lawsuit. Still, this week’s injunction combined with the 2006 ruling and the U.S. Supreme Court ruling in the Minnesota case should cause the state Supreme Court to revise its rules and restore proper First Amendment rights to judicial candidates.
Posted by Marcia Oddi on May 10, 2008 08:58 AM
Posted to Ind Fed D.Ct. Decisions
Friday, May 09, 2008
Ind. Decisions - Transfer list for week ending May 9, 2008
Here is the Indiana Supreme Court's transfer list for the week ending May 9, 2008.
There were two transfers granted this week. They are summarized in this ILB entry from May 8th.
Over four years of Transfer Lists: For other weekly transfer lists (going back to Feb. 2, 2004), check "Indiana Transfer Lists" under "Categories" below, or in the right column.
Posted by Marcia Oddi on May 9, 2008 03:24 PM
Posted to Indiana Transfer Lists
Ind. Decisions - More on: State loses auto-dialer case in trial court
Updating this ILB entry from Feb. 15, 2008, the ILB has received a press release from attiorney James Bopp, Jr. that begins:
Today, the Indiana Democratic Party and the Indiana Republican Party asked the Indiana Supreme Court to allow them to file a joint friend-of-the-court brief in a case involving computer-generated political calls. The case, State of Indiana v. American Family Voices, Inc., was initiated by the State of Indiana against American Family Voices and others for using automatic dialing machines to make political calls during the 2006 election cycle. The case was dismissed by the trial court, based on the Defendant’s argument that the statute only prohibited commercial calls. The Attorney General appealed and the case was taken up directly by the Indiana Supreme Court, bypassing the Court of Appeals. Appellees are represented by DeLaney & DeLaney, LLC.Oral argument in the case is scheduled for June 16, 2008.
Both political parties have a direct interest in the case as they, along with their candidates, would use robocall technology to make political calls, if it were legal. Both political parties believe that the First Amendment protects their right to make computer-generated political calls. The political parties will argue in their friend-of-the-court brief that the Indiana robocall law should be construed to only reach commercial calls, in order to avoid a finding that the statute is unconstitutional because it also prohibits political calls.
Posted by Marcia Oddi on May 9, 2008 02:34 PM
Posted to Ind. Trial Ct. Decisions
Law - "Empty Homes Spur Cities' Suits: Banks, lenders sued to recover costs"
Julie Kay of The National Law Journal has an interesting article today that begins:
Homeowners aren't the only ones claiming they were victimized by the subprime foreclosure debacle sweeping the nation.Cities now dealing with scores of abandoned, foreclosed homes have started suing banks and mortgage companies to recoup their costs, while other cities are hauling lenders before code enforcement boards and county courts to force them to maintain abandoned properties.
The innovative legal tactics are designed to recoup the city's lost property taxes as well as the cost of fire departments, police, code enforcement or even demolition -- any city services needed to clean up or deal with the foreclosed properties.
Cleveland; Baltimore; Buffalo, N.Y.; and Minneapolis, Minn., have all filed lawsuits against lenders or developers based on the devastating effects foreclosures have wreaked on their communities. The lawsuits were filed in recent months under different theories, in state and federal court.
Cleveland and Buffalo filed suits under public nuisance laws. Minneapolis' suit was brought on consumer fraud grounds, while Baltimore took the unusual approach of filing suit in federal court under alleged Fair Housing Act violations.
In addition to filing a lawsuit in February, Buffalo city prosecutors routinely haul banking officials before the local housing court to force them to fix up foreclosed and abandoned properties.
Posted by Marcia Oddi on May 9, 2008 02:27 PM
Posted to Indiana Law
Environment - More on: Dangers in commencing construction before permit is final
Updating this ILB entry from May 8th, Gitte Laasby of the Gary Post-Tribune has more today on the BP sir permit.
Christine Kraly of the NWI Times also has a story, titled "Appeal to BP permit in the works?," and including this quote:
The Office of Environmental Adjudication's two environmental law judges review IDEM decisions.Judge Mary Davidsen said her office has not yet received any appeals to BP's construction permit and that appeals are considered filed on the date they are mailed.
Although no one has stepped forward yet, some groups may be preparing to do so.
"We are carefully considering an appeal," said Howard Learner, president and executive director of the Environmental Law and Policy Center. "We, and our colleagues, are deciding whether and in what form to submit."
On the day the permit was approved, Ann Alexander, senior attorney for the Natural Resources Defense Council, said her group was "considering our options" in appealing.
The refinery may have to stop construction if a filed petition requests it be halted, Davidsen said. A hearing would likely be scheduled quickly to determine shuttering construction if such a request were made, she said.
If a permit appeal is successful, BP could be ordered to rip down what it has built, depending on its various environmental impacts, Davidsen added.
But Davidsen said breakdowns are rare, and facilities instead are ordered not to operate the equipment.
Posted by Marcia Oddi on May 9, 2008 02:18 PM
Posted to Environment
Ind. Decisions - Court of Appeals issues 5 today (and 19 NFP)
Yesterday the Court of Appeals posted 29 opinions, today there are 24 more. Get out your reading glasses!
For publication opinions today (5):
In Belden, Inc., and Belden Wire & Cable v. American Electronic Components, Inc., a 22-page opinion, Judge Barnes writes:
Belden, Inc., and Belden Wire & Cable Company (collectively “Belden”) appeal the trial court’s granting of partial summary judgment in favor of American Electronic Components, Inc. (“AEC”). We affirm.Paul Quiroz v. State of Indiana - Interesting arguments, including "Quiroz argues that because, at the time he pled guilty, the issue of whether enhanced consecutive sentences could be imposed was uncertain, the rule of lenity should be applied to his sentence," and "In his brief, Quiroz states that he “simply argues that given the instability in the law concerning sentencing, both on the federal and state level, that begun with Apprendi in 2000 and continues today, he should have the benefit of the Court of Appeals holding in Robertson.” However, sentencing affirmed.Belden raises four issues, which we consolidate and restate as: I. whether the limitation on damages on the back of Belden’s order acknowledgment applies to the parties’ contract; and II. whether Belden created an express warranty based on its prior assertions to AEC. * * *
[Re "I. Battle of the Forms"] In sum, we agree with the trial court’s conclusion that Section 2-207(3) applies to this case and that Section 2-207(3), not Section 2-207(2), controls the terms of the parties’ agreement. We also conclude that Section 1-205 does not establish a course of dealing in which AEC agreed to the limitation on damages. The trial court properly granted summary judgment in favor of AEC as to the issue of the applicability of Belden’s limitation on damages. * * *
[Re "II. Express Warranty"] Irrespective of whether the course of dealing established that AEC assented to Belden’s proposed limitation on damages, the parties’ course of dealing established that Belden made an express warranty regarding its compliance with the quality control standards. The limitation on damages and the express warranty are unrelated issues—there is no correlation between the two. * * *
[Conclusion] Belden’s limitation on damages is not a term of the parties’ contract and, by complying with AEC’s quality control program, Belden expressly warranted its compliance with AEC’s quality control program, which included the use of Quantum insulation. The trial court properly granted AEC’s partial motion for summary judgment and denied Belden’s partial motion for summary judgment. We affirm.
In State of Indiana v. Larry Ray , a 9-page opinion, Judge Darden writes:
Issue. Whether the trial court erred in finding that pursuant to Indiana’s Implied Consent Law, in order to effect the suspension of driving privileges for a refusal to consent to a chemical test for intoxication, the person must have been warned of that consequence after he has refused to submit to such a test. * * *In Steven Kendall v. State of Indiana , a 23-page, 2-1 opinion (a 13-page opinion and a 10-page dissent), Judge Kirsch writes:As indicated above, Deputy Campbell advised Ray three separate times that his “refusal to submit to a chemical test will result in a suspension of your driving privileges for one year.” In fact, Ray testified that Campbell had read the warning to him “multiple times.” There was no evidence that Ray did not understand the advisement and the consequence of his refusing a chemical test. We find that it would be a statutory interpretation producing an “absurd result[]” to require that despite the multiple warnings that expressly advised Ray that if he refused to consent to the chemical test, his license would be suspended, the statute nevertheless requires that he be so advised again after he refused the chemical test.
Deputy Campbell’s advisements to Ray complied with the statute, and the evidence established that Ray refused to consent to the chemical test offered. Therefore, the trial court erred as a matter of law when it held that these facts failed to satisfy the statutory requirements for suspension of Ray’s license. Reversed.
Steven Kendall appeals the post-conviction court’s denial of his Petition for Post-Conviction Relief. Kendall raises one issue on appeal, which we restate as follows: whether Kendall received ineffective assistance of appellate counsel. We affirm. * * *[Note: the opinion includes a number of interesting footnotes.]When the Supreme Court decided Blakely on June 24, 2004, Kendall’s case was fully briefed in this court. Our opinion was handed down on August 3, 2004. Typical procedure for this court would have been to circulate the draft opinion for votes and comments on July 13, 2004—at least three weeks prior to the hand down date. Thus, appellate counsel would have had a maximum of twelve working days to read and analyze Blakely and seek to file an amended brief or twenty-seven working days to seek rehearing. * * *
Given the legal environment of the time, an environment marked by unpredictability and uncertainty on this court and elsewhere regarding the application of Blakely, we do not find that counsel was ineffective for failing to seek leave to file an amended brief or to raise the issue on rehearing or petition to transfer. We commend the post-conviction court for its clear and thoughtful entry. Affirmed.
MAY, J., concurs.
RILEY, J., dissents with separate opinion. [which begins] I respectfully dissent. First, our supreme court has established a liberal approach permitting defendants with Blakely claims, whose counsels otherwise would have waived those claims under prior Indiana legal precedent, opportunity to litigate their claims; and secondly, when Kendall’s counsel’s performance is compared to the diligent work of other attorneys representing clients similarly situated with arguable Blakely claims, it is apparent that Kendall’s counsel’s performance fell below prevailing professional norms. I would conclude that fairness requires we find Kendall’s appellate counsel ineffective in this situation.
Datwone B. Fry v. State of Indiana - Affirmed. Interesting comprehensive discussion of admission of cell phone records, including whether they are self-authenticating.
NFP civil opinions today (5):
Janet Parfenoff v. Dawn Parfenoff (NFP) - "Parfenoff has failed to demonstrate prima facie error in the issuance of a protective order against her under the Indiana Civil Protection Order Act. Judgment affirmed."
In the Matter of the Paternity of G.K. (NFP) - "Shannon Gibson (“Mother”) appeals the trial court’s grant of a petition for visitation filed by Kevin Slicker. Mother raises two issues, which we revise and restate as: I. Whether the trial court erred by denying Mother’s motion to consolidate the paternity action with the adoption proceeding; and II. Whether the trial court abused its discretion by awarding stepparent visitation. We reverse and remand."
Jessica (Reishus) Anderson v. Devin A. Reishus (NFP) - "Jessica (Reishus) Anderson (Mother) appeals from the final dissolution decree that awarded sole custody of her minor child, D.R., to Devin Reishus (Father). On appeal, Mother presents the following issues for review: 1. Did the trial court err in failing to provide that Mother should have the right of first refusal to care for D.R. when Father was unavailable but D.R.’s paternal grandmother was available? 2. Did the trial court abuse its discretion in awarding Father sole custody of D.R.? We affirm."
Term. of Parental Rights of A.S., S.W., T.R., and Z.S., Angela Christian Shouse v. St. Joseph County Dept. of Child Services (NFP) - "Based on the record before us, sufficient evidence existed to support the trial court’s finding that there was a reasonable probability that the conditions that resulted in the Children’s removal would not be remedied. We reverse a termination of parental rights “only upon a showing of ‘clear error’ — that which leaves us with a definite and firm conviction that a mistake has been made.” Egly v. Blackford County Dep’t of Pub. Welfare, 592 N.E.2d 1232, 1235 (Ind. 1992). We find no such error here and, therefore, affirm the trial court. Affirmed.
Rodney Scott Monce v. Midwest Warehouse Corp. (NFP) - "Midwest did not discriminate against Monce because he was a person with a disability. Instead, Monce was terminated from the job of outside sale representative because he could not perform the essential duties of that position.
Like the trial court, we find no genuine issue of material fact to preclude entry of summary judgment in favor of Midwest on Monce’s claims that he was fired in violation of the ADA or in retaliation for filing a worker’s compensation claim. Affirmed."
NFP criminal opinions today (14):
State of Indiana v. Clint A. Jervis (NFP) - "Clint A. Jervis was charged with four counts, which, listed in order, were possession
of chemical reagents or precursors with intent to manufacture methamphetamine as a Class C felony, dealing in methamphetamine as a Class B felony, dealing in a sawed-off shotgun as a Class D felony, and dealing in methamphetamine as a Class A felony. He was convicted of Counts I and III after the trial court granted his motion for directed verdict on Counts II and IV. The State appeals, raising the following issue: whether the trial court erroneously granted Jervis’s motion for directed verdict on Counts II and IV. * * *
"Although we reverse the erroneous judgment on the evidence in favor of Jervis, he cannot be retried because an erroneous entry of acquittal by the trial court acts as an acquittal for double jeopardy purposes."
State of Indiana v. Renda Hall (NFP) - "The State petitions for rehearing following our decision in State v. Hall, No. 90A04-0709-CR-545 (Ind. Ct. App. Feb. 26, 2008), in which we affirmed the trial court’s granting of Hall’s motion to suppress. Although we grant the State’s petition for rehearing, we affirm our decision in all regards. We issue this opinion on rehearing simply to clarify our earlier decision. * * *
"Any evidence recovered from the car, including the paraphernalia and drugs, was found as a result of Hall’s illegal detention. Regardless of whether the evidence was discovered pursuant to a dog sniff or a search conducted by a police officer, it is fruit of the poisonous tree."
Harold E. Mummey v. State of Indiana (NFP)
Shannon Carlson v. State of Indiana (NFP)
David Ohm v.State of Indiana (NFP)
Todd E. Barlow v. State of Indiana (NFP)
Roger Davis v. State of Indiana (NFP)
Tyrone Rayford v. State of Indiana (NFP)
David R. Eggert v. State of Indiana (NFP)
Johnny White v. State of Indiana (NFP)
Aaron Giroud v. State of Indiana (NFP)
Dennis Eugene Scott v. State of Indiana (NFP)
Susie Fisher v. State of Indiana (NFP)
Barry Fitzgerald v. State of Indiana (NFP)
Posted by Marcia Oddi on May 9, 2008 11:33 AM
Posted to Ind. App.Ct. Decisions
Ind. Courts - Results of the Feb. 2008 Indiana bar exam available online
Posted by Marcia Oddi on May 9, 2008 11:30 AM
Posted to Indiana Courts
Thursday, May 08, 2008
Ind. Courts - Still more on: "Howard County Judge accuses deputy prosecutor of drug use"
Updating this ILB entry from May 3rd, the Kokomo Perspective has an editorial today that begins:
Judge Stephen Jessup has made a career out of inconsistency on and off the bench, and his latest act -- admitting in open court to accusing deputy prosecutor David Steele of drug use -- goes well beyond the realm of eccentricity or indifference to what is expected from a person in his position.
Posted by Marcia Oddi on May 8, 2008 06:52 PM
Posted to Indiana Courts
Ind. Law - Still more on: "Booksellers incensed over sexual content law"
Not only booksellers, but the Indianapolis Museum of Art, according to this longish story by Tim Evans of the Indianapolis Star, updating his earlier story from yesterday. Today's story begins:
The Indianapolis Museum of Art, which sells art books containing images of nudes painted by the Old Masters, joined a civil rights group Wednesday in suing over a law that would require a business selling pornography to register with the state.Maxwell L. Anderson, Melvin & Bren Simon director and chief executive of the IMA, said he is concerned about the law's effect on the museum and the broader message it sends.
Advertisement"Our role in this community is to foster tolerance for creativity, and this law is completely in opposition to that mission," Anderson said.
He added that the law "is not a signal of a progressive place."
Posted by Marcia Oddi on May 8, 2008 04:03 PM
Posted to Indiana Law
Ind. Decisions - Court of Appeals issues 5 today (and 24 NFP)
More details to follow
For publication opinions today (5):
In Town of Georgetown v. Edwards Community, Inc. et al , an 11-page opinion, Judge Mathias writes:
The Town of Georgetown (“the Town”) appeals the order of the Floyd Circuit Court imposing a moratorium on future attempts by the Town to annex certain territories and awarding attorney fees to Edwardsville Community, Inc. (“Edwardsville”). We reverse. * * *Gary Gerlach v. Larry Gene Woodke - "Although we agree with Gerlach that the record is not clear about what Woodke was doing at the time of the injury and thus may not have been injured while performing maintenance and repair work, this oversight on our part does not change our conclusion that Woodke was not a farm or agricultural employee at the time of his injury. Accordingly, we grant Gerlach’s petition for purposes of correcting our oversight and addressing the other issues raised in the petition, but otherwise affirm our original opinion in its entirety."The trial court erred in imposing a forty-two month moratorium on future annexation attempts by the Town because Edwardsville’s remonstrance was facially insufficient under Section 11 [IC 36-4-3-11]. Because of this, the trial court could not properly set a hearing pursuant to Section 11(c), and without a hearing set under Section 11(c), there was no trigger for the moratorium once the Town repealed the annexation ordinances. The trial court also erred in ordering the Town to pay Edwardsville costs because there was no judgment on the merits of the remonstrance.
Dennis Peterson v. Charles Lambert, John Doe, et al - "Peterson’s claims rest on the allegation that in confiscating his baby powder and addressing or failing to address his grievances thereafter, the defendants were acting willfully and wantonly and clearly outside the scope of their employment. Baby powder is on the list of personal property that is prohibited at MCF. Prison administrators are accorded “wide-ranging deference in the adoption and execution of policies and practices that in their judgment are needed to preserve internal order and discipline and to maintain institutional security.” Bell v. Wolfish, 441 U.S. 520, 547 (1979). Peterson has alleged no facts that would support his contention that the defendants were acting willfully, wantonly, or outside the scope of their employment in confiscating a prohibited item, and he has not made a claim challenging MCF’s policies prohibiting certain items.1 Peterson’s complaint lacks an arguable basis in law or fact and the trial court properly dismissed both of his claims."
In Allstate Insurance Co. v. Ted and Rosella Fields, an 11-page opinion, Judge Mathias writes:
A default judgment was entered against Allstate Insurance Company (“Allstate”) in Lake Superior Court on a claim of bad faith filed by policyholders Ted and Rosella Fields (“the Fieldses”). Thereafter, a jury trial was held to determine the amount of damages. The jury awarded compensatory damages in the amount of two million dollars and punitive damages in the amount of eighteen million dollars. The trial court reduced the punitive damage award to six million dollars pursuant to Indiana Code section 34-41-3-4. Allstate appeals and raises the following dispositive issue: whether the trial court erred when it denied Allstate’s motion for partial summary judgment on the bad faith claim. We reverse and remand for proceedings consistent with this opinion. * * *In OB-GYN Associates of Northern Indiana, P.C. v. Tammy Ransbottom, a 12-page opinion, Judge Friedlander writes:As in Fields I, we conclude that the trial court erred when it denied Allstate’s motion for partial summary judgment. For this reason, Allstate should not have had a default judgment entered against it on the bad faith claim. Accordingly, we reverse and remand to the trial court with instructions to vacate the jury’s verdict and to enter summary judgment in favor of Allstate on the Fieldses’ bad faith claim.
Upon interlocutory appeal, Ob-Gyn Associates of Northern Indiana, P.C. (Ob-Gyn) appeals the denial of its motion to dismiss a negligence action against it filed by Tammy Ransbottom. The propriety of that ruling hinges upon the answer to the following question: Is cosmetic laser hair removal “health care” within the meaning of Indiana‟s Medical Malpractice Act? We affirm. * * *NFP civil opinions today (10):In summary, we conclude that the laser hair removal treatment administered by Roschek did not constitute health care with the meaning of the Medical Malpractice Act, and the trial court did not err in denying Ob-Gyn‟s motion to dismiss.
Mary Ann Smith-Dobben v. Richard Lee Dobben (NFP) - "The findings amply support the trial court’s conclusion that there had been substantial changes in circumstances, and that it was in the best interest of E. and D. for Father to be granted physical and legal custody of them, and in the best interest of J. that Mother be granted physical and legal custody of him. Affirmed."
Michael and Mamie Williams v. Gregory Hilycord (NFP) is a 2-1 opinion, with the majority writing: "A default judgment was entered in Bartholomew Superior Court against Michael and Mamie Williams (“the Williamses”) voiding a land sales contract they had entered into with Gregory Hilycord (“Hilycord”) for the purchase of a large tract of land in Bartholomew County. The Williamses filed a motion to set aside default judgment, which was denied. They appeal and argue that the trial court erred when it granted default judgment in favor of Hilycord because the remedy of forfeiture was not warranted by the allegations in the complaint. We reverse and remand for proceedings consistent with this opinion."
C.L. v. R. F. (NFP) - "Having concluded that the trial court erred by failing to conduct a hearing on Father’s motion to dismiss, we need not consider Mother’s remaining claims. The judgment of the juvenile court is reversed and remanded for further proceedings."
Amsted Industries Inc. d/b/a American Steel Foundries v. Jess A. Kaufman and Crane America Services (NFP) - "In that the language of the indemnification provision before us essentially mirrors that in Moore, the result is the same. When the dependent clauses are read together, the provision as a whole, in clear and unequivocal terms, expressly addresses the subject of Crane America’s indemnification of Amsted for Amsted’s own negligence. Thus, Crane America knowingly and willingly accepted its obligation to indemnify Amsted unless the injury was solely caused by the negligence of Amsted. We therefore conclude that the trial court erred in granting Crane America’s motion for summary judgment and accordingly reverse. Furthermore, as we conclude that the indemnification provision is valid and enforceable, we also conclude the trial court erred in denying Amsted’s motion for partial summary judgment. Reversed and remanded for further proceedings."
Commissioner, Indiana Department of Environmental Management v. Bulk Petroleum Corp. (NFP) - "We do not believe these circumstances are those of clear, uncontested unlawful conduct necessitating the application of the per se rule, but rather the breach of an agreement as expressed in the Further Investigation Report and Corrective Action Plan. The per se rule has no application in this case. Therefore, IDEM was required to demonstrate irreparable harm in order to obtain the requested preliminary injunction. The trial court did not err in denying the petition."
Francis "Swede" Colen v. Ohio County, Indiana, et al (NFP)
In the Matter of R.W. and M.W. (NFP)
Keith Allen Matthew v. Patricia Jean Matthew, Robert L. Arthur (NFP)
Marriage of Gail (Marquart) Zermano v. David M. Marquart (NFP)
NFP criminal opinions today (14):
James E. Metz v. State of Indiana (NFP)
Victor Crews v. State of Indiana (NFP)
Dwayne Ellington, Jr. v. State of Indiana (NFP)
Marlon J. Davis v. State of Indiana (NFP)
James G. Wilson v. State of Indiana (NFP)
Michael A. Dersch v. State of Indiana (NFP)
Nicholas Gaetz v. State of Indiana (NFP)
Henry Luke Kellems, Jr. v. State of Indiana (NFP)
Ralph E. Luster v. State of Indiana (NFP)
Jernard A. Freeman v. State of Indiana (NFP)
Kwasi Barnes v. State of Indiana (NFP)
Allison Hyatt v. State of Indiana (NFP)
Danyelle Montgomery v. State of Indiana (NFP)
Jason C. Amonett v. State of Indiana (NFP)
Posted by Marcia Oddi on May 8, 2008 02:01 PM
Posted to Ind. App.Ct. Decisions
Ind. Courts - Carmel City Judge defeats longtime Hamilton County prosecutor
Chris Sikich reports in the Indianapolis Star:A Carmel city judge in his second year in office defeated the longtime county prosecutor in the Republican primary for Hamilton County Circuit Court judge. In a race closely watched by county Republicans, Paul Felix, 38, won the GOP nomination for the general election against Sonia Leerkamp, 60, with about 56 percent of the vote. * * * Leerkamp, who will not seek re-election after her prosecutor term ends in 2010, said she's disappointed Republican party leaders backed Felix.
Posted by Marcia Oddi on May 8, 2008 01:26 PM
Posted to Indiana Courts
Ind. Decisions - One Indiana decision from 7th Circuit today
In U.S.A. v. Teresa and Michael Osburn (ND Ind., Judge Lozano), a 7-page opinion, Chief Judge Easterbrook writes:
In 1998 Michael Orsburn was elected Trustee of Keener Township in Jasper County, Indiana. The Trustee administers funds for emergency services and relief of the poor. Michael appointed his wife, Teresa Orsburn, to keep records and write checks. The Orsburns were poor custodians of the public’s funds. Between 2000 and 2004 they embezzled about $310,000, roughly 15% of the money that passed through their hands. Teresa wrote checks to Michael using erasable ink; after they had been deposited in Michael’s personal checking account and the cancelled checks mailed back to the Trustee’s office, Teresa replaced Michael’s name with that of a more plausible recipient. * * *The best way to treat similar situations alike—and thus to avoid unwarranted disparities in sentencing, see 18 U.S.C. §3553(a)(6); United States v. Boscarino, 437 F.3d 634 (7th Cir. 2006)—is to start with the right Guideline and then make adjustments at the margin. Starting with the right Guideline is essential, see Gall v. United States, 128 S. Ct. 586, 596–97 (2007), independent of any concern about disparities. Giving the Orsburns sentences apt for bribe-payers or bribe-takers would produce an unwarranted disparity. They should be classed with other embezzlers, with a potential for a higher sentence on account of their public positions if the district judge deems the adjustment under §3B1.3 inadequate.
The convictions are affirmed, but the sentences are vacated, and the cases are remanded for resentencing consistent with this opinion.
Posted by Marcia Oddi on May 8, 2008 01:26 PM
Posted to Ind. (7th Cir.) Decisions
Ind. Decisions - Two recent transfer grants
The ILB has received notice that on May 7th the Supreme Court granted transfer in the case of Dreaded Inc. v. St. Paul Guardian Ins. Co., where the issue involved whether St. Paul was liable for environmental cleanup defense costs incurred prior to receiving notice of potential liability. See the ILB summary of the Dec. 28, 2007 COA opinion here - 4th case.
On May 2nd, the Court granted transfer in the case of Roderick Lee v. State of Indiana. Here is the Feb. 26, 2008 ILB summary of the Court of Appeals decision - 3rd case - that concluded "Lee did not receive ineffective assistance of counsel based on counsel’s failure to raise the double jeopardy issue of direct appeal."
Posted by Marcia Oddi on May 8, 2008 11:11 AM
Posted to Indiana Transfer Lists
Ind. Decisions - Still more on: Court of Appeals reverses murder convictions under Indiana’s Criminal Rule 4(C)
Updating this ILB entry from April 13th on the COA decision in the case of Robert Jeffrey Pelley v. State of Indiana, the South Bend Tribune reports today:
The office of Attorney General Steve Carter has asked the Indiana Supreme Court review Jeffrey Pelley’s quadruple murder case.An Indiana Court of Appeals recently overturned Pelley’s four murder convictions on the grounds that prosecutors took too long to bring Pelley to trial.
A delay in the case was the result of a legal battle between prosecutors and the Family and Children’s Center over access to records of the Pelley family before four members of that family were shot to death in their Lakeville home.
A petition filed Wednesday by the attorney general argues that prosecutors had no control over the delay, and that it should therefore not be interpreted as a violation of Criminal Rule 4 (C), which guarantees every defendant a speedy trial.
Posted by Marcia Oddi on May 8, 2008 11:07 AM
Posted to Ind. App.Ct. Decisions
Environment - Dangers in commencing construction before permit is final
Gitte Laasby of the Gary Post Tribune reports today:
BP could be forced to stop, alter or tear down construction on its modernized Whiting refinery if its newly issued air permit construction approval is appealed.BP started construction when it received approval from the Indiana Department of Environmental Management on May 1. But appeals can be submitted until May 19.
Ann Alexander, senior attorney with the Natural Resources Defense Council, said environmentalists continue to weigh their options.
"BP is clearly taking a risk in commencing construction that their permit could be overturned," Alexander said.
If a judge grants a "stay" to halt construction, construction may have to be stopped. If the permit is modified as a result of an appeal, construction may have to be modified, too. If the permit is revoked, new construction may have to be torn down, Indiana's chief environmental law judge said.
"If the enterprise gets a permit and ultimately it is not approved, they run the risk of mitigation," said Mary Davidsen, chief environmental law judge with the Office of Environmental Adjudication, which could hear a state appeal case. "Someone goes ahead and builds, that's the risk they take. Maybe they build a certain way and the permit finds it should have been built in a different way."
BP is confident the permit will stand.
"Our air construction permit is valid; the permit underwent a thorough and rigorous review, and we believe it will stand up to scrutiny," BP spokeswoman Valerie Corr said in an e-mail.
According to Indiana law, a judge can issue a stay if the appellant will "suffer irreparable harm," if the appellant is likely to win a court case, if injury to the appellant outweighs potential harm to BP, or if it serves the public interest.
Interested local residents received notice Monday from IDEM that it issued the permit, but found it frustrating to have less than two weeks to appeal.
"I received the letter May 5 which is dated May 1, so they are actually giving me (and everyone else) 13 days to respond," Highland resident Susan Eleuterio said in an e-mail. "I find it amazing that the department which is supposed to represent the citizens of Indiana gives them less than two weeks to respond to a decision that affects the very air they breathe."
Davidsen said the 18-day deadline for appeals is according to law and that she has little authority to change it.
"We don't have a right to alter that," Davidsen said, but, "There's always a chance to ask those who make those rules to change them."
Posted by Marcia Oddi on May 8, 2008 10:49 AM
Posted to Environment
Courts - "Having access to case status throughout the pipeline is enabling lawyers to better advocates"
My friend Diana Skaggs, of the excellent Kentucky Divorce Law Journal, has an entry today that is applicable to all practitioners, regardless of jurisdiction:
Having access to case status throughout the pipeline is enabling lawyers to better advocates. How? Well, if you represent a physician, do you think you want to try that case before Gaskill v. Robbins is decided? And, if you must mediate or try your case before then, perhaps the oral arguments may help you get a feel for where the law is headed.Of course, we have some issues here in Indiana. The appellate docket has gaping holes; appellate briefs are not available online, a serious deficiency; and few Court of Appeals oral arguments are viewable online, although nearly all Supreme Court oral arguments are, and they are archived.On June 8, 2008 at 10am the Kentucky Supreme Court will hear oral arguments in Gaskill v. Robbins. We have posted about this case involving business valuations many times. The issue is whether the capitalization of excess earnings method of professional practice valuation measures personal goodwill rather than enterprise goodwill. You can watch the oral arguments live at the link here. We'll post the briefs as soon as we learn they are available.
Posted by Marcia Oddi on May 8, 2008 10:28 AM
Posted to Courts in general | General Law Related
Ind. Decisions - "State court upholds Portage police response at residence"
Monday's NFP COA decision in the case of John Zane v. City of Portage and Clifford Brich, et al (see ILB summary here - 3rd case) is the subject of a story today by James D. Wolf Jr. in the Gary Post-Tribune that begins:
Portage police did not need a warrant to force their way into a man's home to retrieve his friend who'd been drinking for days, threatened suicide and had access to a bunker full of weapons, according to the Indiana Court of Appeals.Shooting the homeowner's 66-pound American Straffordshire Terrier, which is closely related to and resembles a pit bull terrier, was not excessive force, either, the memorandum decision stated.
The court filed its decision, upholding Porter County Judge Mary Harper's decision in a 2004 suit, on Monday.
The homeowner, John Zane sued for $30,000 for damages from shots fired, damage to the front door and from tear gas that made the house uninhabitable for a while.
The incident happened on Jan. 26, 2002, when Zane was out of town and a friend was staying in the residence, according to court records.
Posted by Marcia Oddi on May 8, 2008 09:31 AM
Posted to Ind. App.Ct. Decisions
Ind. Decisions - "Employers Can't Ignore Workplace Bullies"
Indiana's April 8th Supreme Court decision in the case Daniel H. Raess, M.D. v. Joseph E. Doescher (see list of ILB "workplace bullying" entries here) is the focus of a May 7th "Smart Answers" column by Karen E. Klein in Business Week. Some quotes:
Last month, the Indiana Supreme Court ruled in favor of a hospital employee who sued a surgeon for emotional distress and assault based on his treatment of the person at work. The ruling drew national attention as an acknowledgment by the courts of workplace bullying both as a phenomenon and as legal terminology, says Garry Mathiason, chair of the corporate compliance practice group at labor and employment law firm Littler Mendelson. He spoke recently to Smart Answers columnist Karen E. Klein about the implications of the Indiana case for small business owners. Edited excerpts of their conversation follow. * * *What was the Indiana case about?
There was behavior claimed to be intentional inflicting of emotional distress by a surgeon who apparently had a terrible temper. What was particularly interesting about the case was that the jury instructions used the phrase "workplace bullying" and it was questioned whether that term was too general. But the Supreme Court said the term had viability as a commonsense phrase for a jury.
Posted by Marcia Oddi on May 8, 2008 09:13 AM
Posted to Ind. Sup.Ct. Decisions
Wednesday, May 07, 2008
Courts - "Michigan Marriage Amendment Nixes Domestic Partners Benefits"
From an entry this afternoon in the Volokh Conspiracy by Dale Carpenter, law prof. at U. of Minn. Law, headed "Michigan Marriage Amendment Nixes Domestic Partners Benefits":
So said the Michigan Supreme Court in a 5-2 decision today.An AP story by David Eggert begins:By state constitutional amendment in 2004, Michigan voters barred the state from recognizing same-sex marriages. But the awkwardly worded amendment went further: "To secure and preserve the benefits of marriage for our society and for future generations of children, the union of one man and one woman in marriage shall be the only agreement recognized as a marriage or similar union for any purpose."
The "similar union" language, along with the "for any purpose" language, was enough for the majority to conclude that it prohibited same-sex domestic partners benefits provided by some 20 state universities and municipal entities in the state. From the dissent: "It is an odd notion to find that a union that shares only one of the hundreds of benefits that a marriage provides is a union similar to marriage."
The Michigan decision sets an interpretive precedent that may be followed in the many other states that have banned same-sex marriages and recognition of other relationships "similar" to marriage.
LANSING, Mich. (AP) — Local governments and state universities in Michigan can't offer health insurance to the partners of gay workers, the state Supreme Court ruled Wednesday.Here is the problematic language of SJR 7, the proposed Indiana constitutional amendment, which was not brought up for a vote by the second consecutive General Assembly either in 2007 or 2008:The court ruled 5-2 that Michigan's 2004 ban against gay marriage also blocks domestic-partner policies affecting gay employees at the University of Michigan and other public-sector employers.
The decision affirms a February 2007 appeals court ruling.
(b) This Constitution or any other Indiana law may not be construed to require that marital status or the legal incidents of marriage be conferred upon unmarried couples or groups.For background see this ILB entry from March 19, 2007, which compares the Indiana, Michigan, and Ohio language.
[More] Here is a story by Dawson Bell of the Detroit Free Press that includes this quote:
Patrick Gillen, a professor at Ave Maria Law School and a co-author of the amendment, said the court’s ruling was “a vindication of the will of people in enacting the marriage amendment.”The opinion is now posted on the Michigan Supreme Court website - access it here.Advocates for same sex partner benefits want “same sex partners treated as spouses… to redefine marriage and the family in a very radical way. And the voters recognized that,” Gillen said.
Jessie Olson, an attorney involved in filing the challenge that was rejected by the court Wednesday, said the ruling leaves Michigan “at the bottom of the barrel. We are the worst of the worst of the worst when it comes to civil rights for same sex couples.”
Posted by Marcia Oddi on May 7, 2008 04:04 PM
Posted to Courts in general
Ind. Law - More on: "Booksellers incensed over sexual content law"
Updating this ILB entry from March 26th about HEA 1042, Tim Evans of the Indianapolis Star reports this afternoon:
The American Civil Liberties Union of Indiana and attorneys for several national organizations representing booksellers filed a lawsuit in U.S. District Court today seeking an injunction barring enforcement of a new state law which requires businesses that sell sexually explicit material to register with the state.The new law, approved earlier this year by the General Assembly, takes effect July 1.
The lawsuit names the prosecutors of Indiana's 92 counties as defendants because they are responsible for enforcing the law. The law covers new businesses and existing businesses that move to a new location after June 30.
Violations would be a Class B misdemeanor, which carries a potential penalty of up to 180 days imprisonment and a fine of up to $1,000.
Ken Falk, legal director for the ACLU of Indiana, said the law is overly broad, too vague as to who must register and violates the First Amendment.
Falk stressed the groups filing the suit do not represent adult bookstores. They include businesses that sell popular books for children and adults, as well as others that deal in arts, including the Indianapolis Museum of Art and the Indianapolis Downtown Artists and Dealers Association.
Posted by Marcia Oddi on May 7, 2008 03:01 PM
Posted to Indiana Law
Courts - Justice Scalia explains his change of heart re avoiding the public eye
Tony Mauro of Legal Times writes about Justice Scalia's online Q & A with C-Span's Brian Lamb last Sunday. Some quotes:
C-SPAN has posted the transcript of Brian Lamb's recent interview with Supreme Court Justice Antonin Scalia, the latest event in Scalia's tour to publicize the book he has co-written with Bryan Garner.Via this link, you may read the transcript of the program, download a podcast, or watch the one-hour interview online.Among the remarkable aspects of the interview is Scalia's explanation, finally, for why he has decided to abandon his often-stated view that common-law judges should hide in the tall grass and not seek publicity.
After Lamb asks Scalia about the popular Green Bag bobblehead of Scalia, and the various T-shirts on sale that use his name, Scalia says, with an air of resignation: "Well, frankly, Brian, that's one reason I've sort of come out of the closet and -- in recent months done more interviews and allowed my talks to be televised more than I did formerly. I've sort of come to the conclusion that the old common law tradition of judges not making public spectacles of themselves and hiding in the grass has just broken down. It's no use, I'm going to be a public spectacle whether I come out of the closet or not, beyond T-shirts and bobblehead dolls and what-not. So if, you know, if I am going to be a public figure, I guess the public may as well get their notion of me firsthand rather than filtered through people such as Brian Lamb, you know."
Posted by Marcia Oddi on May 7, 2008 02:49 PM
Posted to Courts in general
Ind. Courts - Judge Elaine Brown will formally join the Court of Appeals in a robing ceremony at 3:00 p.m. on Friday
From a press release today:
Judge Elaine Brown will formally join the Indiana Court of Appeals in a robing ceremony in the Supreme Court courtroom at 3:00 p.m. on Friday, May 16, 2008. Chief Judge John G. Baker will preside. Governor Mitch Daniels will join Judge Brown’s family, colleagues, and special guests to administer the oath of office at the ceremony, which will be followed by a reception. Seating is by invitation, but the media is welcome to cover the event.The robing ceremony will be available live via streaming video.Judge Brown was named to the Court of Appeals by Governor Mitch Daniels. She joins Judge Nancy H. Vaidik and Judge Margret G. Robb to complete the Court’s Fifth District, which draws a judge from each of the Court’s first three geographical districts. Judge Brown is the Fifth District judge from southern Indiana and will stand for retention statewide.
Posted by Marcia Oddi on May 7, 2008 02:46 PM
Posted to Indiana Courts
Ind. Decisions - Court of Appeals issues 3 today (and 14 NFP)
For publication opinions today (3):
In Herman Filice v. State of Indiana , a 26-page opinion, Chief Judge Baker writes:
Rohypnol, a notorious date rape drug, causes temporary amnesia by inducing extreme feelings of intoxication in a user. The facts of this case require us to address, for the first time, various legal issues surrounding a defendant’s sexual contact with a woman who was in a Rohypnol-induced state of unawareness. While there is evidence in the record that the defendant knew or should have known that the woman was impaired, there is no evidence that he administered Rohypnol to her or knew that she was under the influence of that drug.In R.E.I. v. State of Indiana, a 7-page opinion, Cheif Judge Baker writes:Appellant-defendant Herman Filice appeals his ten-year sentence and convictions for Criminal Deviate Conduct, a class B felony, and Attempted Rape, a class B felony. Specifically, Filice argues that (1) the trial court abused its discretion by denying his motion to dismiss the attempted rape charge on the ground that Indiana Code section 35-42-4-1(a)(2) is unconstitutionally vague; (2) the trial court abused its discretion by admitting the results of the victim’s blood test showing the presence of Rohypnol; (3) the evidence was insufficient to sustain his convictions; (4) the trial court abused its discretion by refusing to give one of Filice’s proposed jury instructions; (5) the trial court abused its discretion by finding the nature and circumstances of the crimes to be an aggravating factor; and (6) his ten-year sentence is inappropriate in light of the nature of the offenses and his character. Finding Filice’s sentence to be inappropriate in light of the nature of the offenses and his character and finding no other reversible error, we affirm in part, reverse in part, and remand with instructions to vacate the sentence and impose a term of eight years imprisonment for each conviction, with the sentences to run concurrently, for an aggregate term of eight years imprisonment.
Appellant-respondent R.E.I. appeals the juvenile court’s order requiring him to register as a sex offender. Specifically, R.E.I. argues that (1) the juvenile court did not have jurisdiction over him because it did not file a motion to reinstate jurisdiction after he was released from the Department of Correction (DOC), and (2) he was twenty-one years old when the evidentiary hearing was held and the order was issued. Finding no error, we affirm the judgment of the juvenile court.Note: There is no appellate docket for this case.
In Nature's Link, Inc. v. Thomas and Amy Przybyla , an 18-page opinion, Judge Riley writes:
Nature’s Link raises two issues on appeal, one of which we find dispositive and which we restate as: Whether the trial court properly ordered a new trial pursuant to T.R. 60(B)(3) after finding that Nature’s Link’s medical expert changed his diagnosis and opinion of Przybyla’s injuries at trial without having previously disclosed this new diagnosis to Przybyla. * * *NFP civil opinions today (4):Based on the foregoing, we find that the trial court properly ordered a new trial pursuant to T.R. 60(B)(3) after finding that Nature’s Link’s medical expert changed his diagnosis and opinion of Przybyla’s injuries at trial without having previously disclosed this new diagnosis to Przybyla. Affirmed.
In Re: The Parent-Child Term. of E.H., J.H., and N.B. v. Gibson County Department of Child Services (NFP) - affirmed.
Shade Ishola-Gbenla and Huntington Nat'l. Bank v. Gateway West Townhouse (NFP) - "Shade argues that the trial court improperly awarded summary judgment to Gateway. Specifically, Shade contends that Gateway presented no evidence to the trial court supporting the amount of maintenance fees owed by Shade to Gateway besides Stern’s self-serving affidavit. Further, she contends that she is owed an offset for damages inflicted upon her car by vandals. * * * For the foregoing reasons, we conclude that the trial court properly awarded summary judgment to Gateway."
Scott Wickersham, Inc., Jack G. Kennedy, III, and Perry Scott Wickersham v. Darien C. Wilson (NFP) - "Jack G. Kennedy, III, appeals a judgment in favor of Darien C. Wilson. Kennedy raises two issues, which we restate as: I. Whether the trial court abused its discretion by denying Kennedy’s motion to correct error concerning a motion for mistrial filed by Kennedy’s co-defendants; and II. Whether the jury’s verdict is excessive. We affirm."
NFP criminal opinions today (10):
Carl Walker v. State of Indiana (NFP)
Lynn Sams v. State of Indiana (NFP)
Julie Bosley v. State of Indiana (NFP)
Willie Jarvis v. State of Indiana (NFP)
Jimmy L. Murphy v. State of Indiana (NFP)
Curtis Hoby Hammons v. State of Indiana (NFP)
Charles E. Dent v. State of Indiana (NFP)
Timothy Huffman v. State of Indiana (NFP)
James O. Hill, Jr. v. State of Indiana (NFP)
Keith L. Preer, Sr. v. State of Indiana (NFP)
Posted by Marcia Oddi on May 7, 2008 12:33 PM
Posted to Ind. App.Ct. Decisions
Ind. Decisions - Monday COA opinions now available; 1 (and 5 NFP)
For publication opinions Monday (1):
In Robert R. Gregory, Jr. v. State of Indiana, a 20-page opinion, Judge Bailey writes:
Appellant-Defendant Robert R. Gregory, Jr. (“Gregory”) appeals following his convictions and sentence for Dealing Methamphetamine, as a Class B felony, and Conspiracy. We affirm the conviction and sentence for Dealing Methamphetamine and remand with instructions to vacate the conspiracy conviction. * * *NFP civil opinions Monday (2):In sum, the trial court did not err in admitting the evidence resulting from the search of the Callaway residence. There was sufficient evidence, both circumstantial and direct, to support Gregory’s conviction for dealing methamphetamine. The prosecutor did not commit misconduct in his reading of a poem in voir dire, questions regarding the dangers of a methamphetamine lab, or comments in closing argument. Finally, Gregory’s maximum sentence of twenty years is not inappropriate. However, we remand to the trial court with instruction to vacate Gregory’s conviction for conspiracy.
In Donald A. Bradshaw v. Diana D. Bradshaw (NFP) - "With regard to the division of the marital estate, the evidence of record supports the findings of the trial court and the findings support the judgment. The child support order should be revised to reflect H.B.’s attainment of age 21 and to reflect Diana’s income from her actual investment choice. The award of attorney’s fees due to alleged contempt of court is reversed, as is the order for extra-ordinary educational expenses of J.B."
In John Zane v. City of Portage and Clifford Brich, et al (NFP), a 20-page opinion, Judge Vaidik writes:
John Zane appeals the trial court’s grant of summary judgment in favor of the City of Portage, the Chief of Police of Portage, and three Portage police officers (“Portage” and the “Portage Police,” respectively). Zane argues that the trial court incorrectly determined that there are no genuine issues of material fact in regard to his claims that Portage and the Portage Police violated his rights under the Fourth, Fifth, and Fourteenth Amendments to the United States Constitution and are liable under Indiana tort law for damage to his property that occurred when the Portage Police entered Zane’s house to retrieve a suicidal individual. Finding that Portage and the Portage Police are immune from liability under Zane’s state law tort claims pursuant to the Indiana Tort Claims Act and that the police properly acted in response to exigent circumstances and without excessive force or deliberate indifference, we affirm. * * *Note: See also this May 6th ILB entry about the April 16th NFP Court of Appeals opinion in the case of James V. Lemmon, et al v. James A. Herman, et al .The trial court correctly determined that Portage and the Portage Police are immune from liability under Zane’s state law tort claims pursuant to the Indiana Tort Claims Act. Further, the Portage Police did not violate Zane’s Fourth and Fourteenth Amendment rights and are therefore not liable to Zane under 42 U.S.C. § 1983. Finally, Zane has not shown that Portage has an inadequate policy or training program for officers faced with similar situations, and Portage is therefore not liable to Zane pursuant to 42 U.S.C. § 1983. The trial court’s grant of summary judgment in favor of the defendants is affirmed.
NFP criminal opinions Monday (3):
Stephen L. Reed v. State of Indiana (NFP)
Jose Vasquez v. State of Indiana (NFP)
Larry Joe Lyons v. State of Indiana (NFP)
Posted by Marcia Oddi on May 7, 2008 12:14 PM
Posted to Ind. App.Ct. Decisions
Tuesday, May 06, 2008
Ind. Decisions - Federal court grants preliminary injunction re judicial speech rights
On April 18th, according to a press release issued on that day by attorney James Bopp, Jr., quoted in this ILB entry:
Two Indiana judicial candidates filed suit today in federal court to block enforcement of Indiana rules prohibiting them from responding to a survey asking their views on abortion, euthanasia, and other issues.The filings are available via this April 21st ILB entry, including a motion for a TRO. An update re the reassignment of the case to Judge Springmann is here, from April 23rd.
Today Judge Springmann has issued a 36-page opinion and order in the case of Torrey Bauer, et al. v. Randall T. Shepard, et al., granting a preliminary injunction enjoining the enforcement of certain provisions of the Indiana Code of Judicial Conduct
Judge Springmann's opinion concludes:
The Court, having considered all the evidence and argument presented by the parties, and having evaluated and balanced the preliminary injunction factors, finds that the Plaintiffs have shown that a preliminary injunction is warranted in this case. The Plaintiffs have demonstrated a reasonable likelihood of succeeding on the merits and that they will suffer irreparable harm if the injunction is not issued. The harm to the Plaintiffs in denying the request outweighs the harm to the Defendants in granting it.It is worth emphasizing that at the preliminary injunction stage, the Plaintiffs have not been required to prove their case in full. A preliminary injunction is merely meant to maintain the relative positions of the parties until the case can be resolved on the merits. Accordingly, only the injunction is binding on the parties; the factual and legal conclusions in this opinion are not binding as the case moves forward.
Finally, as some of the other courts that have addressed these questions have observed, the injunction requested by the Plaintiffs merely precludes enforcement of the judicial canons to sanction candidates for answering the IRL questionnaire. The injunction does not require that candidates answer the questionnaire.
Posted by Marcia Oddi on May 6, 2008 02:03 PM
Posted to Ind Fed D.Ct. Decisions
Ind. Courts - Carroll County judges find their voice
Beginning with this ILB entry, headed "Judicial mandate mentioned in Carroll County," the ILB thus far has had four entries on the current Carroll County budget dispute. The others were posted: April 9th, April 16th, and May 1st. All but the first are based on reports in the Carroll County Comet on Carroll County council meetings.
Last evening the ILB received this note from Judge Jeffrey R. Smith, Carroll Superior Court:
Dear Ms. Oddi,Here is the "ad" placed in the Comet by Carroll County's only two county judges -- it is more of an information piece.I note that you have covered the most recent dispute between the Carroll County judges and the county council. I thought you might be interested in the ad that Judge Currie and I have placed for publication in the Carroll County Comet on Wednesday of this week. I have attached a copy in PDF format.
Also, in part inspired by your blog, we have created our own blog to better inform the Citizens of Carroll County of the issues. You can find it at here.
I certainly appreciate your Indiana Law Blog. It is an excellent resource for Indiana attorneys and judges. Thanks.
The new Carroll County Courts blog is very nicely done. Answering the question - Why a Blog? - a sidebar explains:
It has been difficult for us to adequately convey our position and provide important information to the citizens of Carroll County through local media. It is our hope that through this Blog you will be better informed about the business of the Carroll County Courts.The ILB has been following county disputes involving judicial mandates for five years now. Here is a list of the entries.While we are initially focusing upon budgetary issues, we intend to use this Blog to provide other information about the courts and legal system in the future.
Also of interest, my review of judicial mandate in Indiana: "Separation of Powers in the County Courthouse," 49 Res Gestae 2 (Sept. 2005), pp. 17-19. Access it here.
Posted by Marcia Oddi on May 6, 2008 12:06 PM
Posted to Indiana Courts
Ind. Decisions - "Anger left after false jailing, tossed suit"
The April 16th NFP Court of Appeals opinion in the case of James V. Lemmon, et al v. James A. Herman, et al (see ILB entry here - 7th case) is the subject of a story in the Fort Wayne Journal Gazette today, by Rebecca S. Green. Some quotes:
Two years after he found himself mistakenly arrested on charges of child molesting, the victim of a typographical error, James V. Lemmon’s case against local law enforcement is over.With the Indiana Court of Appeals upholding the dismissal of his lawsuit last month, Lemmon said he will not pursue it to a higher court and he remains appalled and disgusted by what happened to him.
In April 2005, officers from the Allen County Sheriff’s Department, along with a few federal marshals pounded on Lemmon’s front door. When he undid the deadbolt, police stormed inside, guns drawn and presented him with a warrant for his arrest on three charges of child molesting.
After a terrifying six hours in jail, Lemmon was released. Allen County prosecutors realized they made a mistake – issuing the warrant for a James V. Lemmon, as opposed to James Edward Lemmon. Along with the different middle initials, the men had different addresses, different ages and different physical descriptions.
Two employees at the prosecutor’s office were suspended without pay as a result of an internal investigation. James Edward Lemmon was arrested, convicted of one count of child molesting and is currently serving a six-year prison sentence.
In January 2006, James V. Lemmon sued Allen County Prosecutor Karen Richards, then-Allen County Sheriff James Herman, officers and other “unknown employees” in the prosecutor’s office.
Last April, Wells Circuit Judge David L. Hanselman, Sr. dismissed Lemmon’s claims, finding both the prosecutor’s office and the sheriff’s department were immune from a lawsuit.
In a unanimous decision, three Indiana appellate court judges upheld Hanselman’s ruling, although they strongly admonished those involved in drawing up arrest warrants, according to court documents.
Regarding the prosecutor’s office, Indiana law immunizes prosecutors and their employees from civil liability for wrongful acts committed during the initiation of a criminal proceeding, according to court documents.
And in the case of the sheriff’s department and its employees, they are immune because they were executing a warrant that appeared to be valid, according to court documents.
For Lemmon, pursuing the case to the higher courts, such as the Indiana Supreme Court, is financially prohibitive, and the case would not likely be heard.
Posted by Marcia Oddi on May 6, 2008 11:44 AM
Posted to Ind. App.Ct. Decisions
Ind. Decisions - "Court upholds firing of Hammond police sergeant"
The April 30th Court of Appeals NFP decision in the case of Timothy A Thomas v. City of Hammond was the subject of a story by Patrick Guinane yesterday in the NWI Times:
The Indiana Court of Appeals has upheld the firing of a Hammond police sergeant who took an armed civilian with him for a Dec. 31, 2005, ride-along that ended with the shooting of a suspect.The appeals court affirmed the Hammond Board of Safety and Public Works' decision to terminate Sgt. Timothy Thomas in October 2006.
The board ruled that Thomas let Nicholas Kokot, a former East Chicago police officer at the time, accompany him on patrol without permission from supervisors and later attempted to conceal the ride-along.
The board, which was acting on a recommendation from Hammond Police Chief Brian Miller, also determined that Thomas deputized Kokot, who that night was outfitted with a bullet-proof vest, side arm and AR15 assault rifle.
Thomas and Kokot responded to a call of shots fired in the 1100 block of Moss Street, the board ruled, without contacting dispatch or requesting back up. The incident ended with Thomas shooting a Hammond man who was running toward him.
The appeals court on Wednesday upheld Thomas' dismissal, ruling the board had appropriate evidence to support it's decision.
Posted by Marcia Oddi on May 6, 2008 08:22 AM
Posted to Ind. App.Ct. Decisions
Ind. Decisions - "Court won't hear adult plaza case"
As the ILB noted last Friday, May 2nd:
Notable transfer denials include Plaza Group Properties, LLC, et al. v. Spencer County Plan Commission, et al.. For background, see this ILB entry from Dec. 14, 2007.
Bryan Corbin of the Evansville Courier & Press reports today on the transfer denial, in a comprehensive story that begins:
The Indiana Supreme Court has declined to hear the appeal of the 231 Adult Plaza in Spencer County, Ind., letting stand a lower-court ruling that said the county could regulate the amount of sexually themed merchandise in the store's inventory.Without a written opinion, the state's highest court denied transfer of the adult plaza's lawsuit from the Indiana Court of Appeals, which in December sided with Spencer County in the zoning dispute. The appeals court had found that the county did not violate the adult plaza's First Amendment free-expression rights when it regulated adult merchandise in the store through an ordinance.
By denying transfer, the state supreme court has ended the litigation — at least at the state level — in the lawsuit of Plaza Group Properties LLC vs. the Spencer County Plan Commission and Board of Commissioners. Plaza Group's attorney, Scott Nazzarine, said his client likely would not pursue an appeal in federal court.
Spencer County officials continue to monitor activities at the business and could seek to have it held in contempt of court if there are further violations, commission attorney John Wetherill said.
Plaza Group opened the adult business in October 2005 in a former truck stop at the interchange of State Road 231 and Interstate 64. Soon after, county officials amended their zoning ordinances to restrict adult businesses from operating within 1,000 feet of a home, church or school, and they sought a court injunction to stop the plaza's activities. While the adult business moved out of its main building, it continued operating in an adjacent convenience store, with a gift shop selling adult novelties and a stage for exotic dancers.
Under a preliminary injunction order last year, business owners agreed that less than 35 percent of their merchandise would be sexually oriented.
Last year, Spencer Circuit Court Judge Wayne Roell ruled the adult plaza violated the 1,000-foot restriction, and he later fined the business $30,000 for contempt of court after witnesses testified of dancers exposing themselves to patrons.
Plaza Group appealed, challenging the constitutionality of the county ordinance, but the appeals court in December sided with the county, which argued that one of the adult plaza's buildings was within 89 feet of an existing residence. Plaza Group then tried, unsuccessfully, to bring an appeal to the state supreme court.
That leaves matters where they were last December. Plaza Group legally could sell adult merchandise unrestricted if it simply moved the business to beyond the 1,000-foot radius, where the ordinance would not apply. Instead of moving, however, Plaza Group likely will continue to operate its gift shop while obeying the county's 35 percent inventory limit, Nazzarine said.
"As far as I know, the plans are to remain where they are and to abide by the law," he said.
"The county's goal has never been to shut down the business located at the adult plaza; it was just to ensure for public safety concerns that they abide by county ordinances," said Wetherill, the commission's attorney. "Our zoning ordinance does provide multiple locations for adult use in the county, just not there."
Posted by Marcia Oddi on May 6, 2008 08:11 AM
Posted to Ind. Sup.Ct. Decisions | Indiana Transfer Lists
Monday, May 05, 2008
Ind. Courts - COA Judge L. Mark Bailey offers advice to North Decatur High School students
"Bailey is a North Decatur alum who visited the students to discuss law in the 21st century, with a special emphasis on exactly what he does on the bench," writes Joe Hornaday in this two-screen story in the Greensburg Daily News.
Posted by Marcia Oddi on May 5, 2008 04:58 PM
Posted to Indiana Courts
Ind. Decisions - Not yet available [Updated]
Apparently there are Court of Appeals opinions today, but they have not yet been made available online via the Court website. Check back.
[Update at 6:30 pm] The Court Opinions Page now has this banner at the top:
Newly published appellate opinions are not currently available on our website. IN.gov is experiencing technical problems and is working to resolve them.The ILB recalls a similar situation earlier this year, when opinions were not available for several days. See this ILB entry from Jan. 25th, headed "Court of Appeals opinions not posted again Thursday."
Posted by Marcia Oddi on May 5, 2008 03:37 PM
Posted to Ind. App.Ct. Decisions
Courts - A rapping clerk of the courts?
This caught my eye. An entry from the blog Above the Law begins:
When you think of clerks of court, you probably think of those annoying people who bounce your filings because you used the wrong font size. They don't seem like a fun bunch of people.Here is the Harvey Ruvin website. He raps about the environment -- picture Al Gore rapping. See the Above the Law entry, including the YouTube link, here.But Harvey Ruvin, Clerk of Courts for Miami-Dade County, is not your ordinary court clerk. How many clerks do you know who can rap?
Posted by Marcia Oddi on May 5, 2008 02:40 PM
Posted to Courts in general
Environment - "Air rules initiative troubles Amish"
Niki Kelly of the Fort Wayne Journal Gazette had a very long and very interesting story Sunday on IDEM's interactions with Amish woodworking operations. Some quotes:
“In speaking to IDEM, they clearly did not intend this. If they were targeting them, it was for outreach, not enforcement,” said Barbara Quandt, Indiana director for the National Federation of Independent Business. “However, when you talk about fines that are possible and you indicate in written materials that there are going to be unannounced inspections, the average business would have difficulty with that.“Then add to that that Amish have businesses on their homesteads, and it was particularly upsetting to them.”
Quandt said several Amish members contacted her organization when they perceived they were being targeted for massive fines. But, she said, they aren't looking for an Amish exception.
“The concern they feel is that they are good stewards of the land and environment, … and they feel they might be at a disadvantage because of their lifestyle,” she said. “I think IDEM listened to them and has backed off a bit. I would definitely say (the Amish) were frightened by the initiative. They are not looking for special treatment, but they are looking for some sort of understanding on their lifestyle.”
The Amish also contacted Rep. Phyllis Pond, R-New Haven, and Sen. Dennis Kruse, R-Auburn, and both attended one of the informational meetings. Neither was impressed.
“The presentation was so complicated and mathematical that I got a little frustrated,” Kruse said. “I think there are bigger fish to fry than to go after a small business - any small business.”
Kruse said all the Amish woodworking businesses together probably wouldn't equal one major foundry or factory in air emissions and noted that IDEM has never focused on the issue before.
“The Amish are about as environmentally friendly as any person I know,” Kruse said.
Pond also calls the situation “ridiculous,” saying she thinks someone in the agency thought he could make some money from these permits.
“Someone got the idea that the Amish would not protest,” she said.
Several Amish businesses contacted for this article declined to speak, but one referred The Journal Gazette to an attorney who is representing several of them out of Auburn.
John Martin Smith sent a letter March 28 to the IDEM listing some of the concerns of the small woodworking shops.
He first suggested that there should be a threshold beneath which small shops would not be required to get permits, such as those that employ mostly family members. He also believes the level of pollution should be based on the “actual usage” of potential pollutants, not the assumption that the shop is being used 8,760 hours a year.
“This would simplify the whole process and eliminate the necessity for permits for small shops,” he said.
Smith also suggested the fining structure of up to $25,000 per day is unrealistic for small Amish shops.
Bossingham said that while legally IDEM has the authority to levy that fine, it seldom happens. In fact, he said the Amish shop with no air permit that caused the original stir received only a $5,000 fine.
Quandt said the more than 150 Amish members who attended the small-business day at the Capitol were especially pleased by Daniels' visit with them, which included answering questions for more than 30 minutes.
David Pippen, policy director for environment and natural resources in Daniels' office, said they are listening to the concerns.
“We want to help people get into compliance. We would rather not do enforcement,” he said, noting his office and IDEM are currently talking with some leaders in the community about what is the best way to proceed. “We want to figure out the best way without the misperception of being targeted.”
Posted by Marcia Oddi on May 5, 2008 11:36 AM
Posted to Environment
Ind. Decisions - 7th Circuit decides one Indiana case
In UNITED STATES OF AMERICA v. RODRIGO SOTO-PIEDRA and MIGUEL HERNANDEZ (SD Ind., Judge McKinney), a 12-page opinion, Judge Kanne writes:
Rodrigo Soto-Piedra and Miguel Hernandez pleaded guilty to conspiracy to distribute cocaine. See 21 U.S.C. §§ 846, 841(a)(1). Neither stipulated to a precise drug quantity when pleading guilty, and each now challenges his sentence. Soto contends that the district court exaggerated the drug quantity by relying almost exclusively on an informant’s estimate that the probation officer repeated in the presentence report. Hernandez maintains that the court overstated his base offense level on the mistaken assumption that he was involved with crack rather than powder cocaine. We reject Soto’s contention but agree with Hernandez that his case must be remanded. * * *Actions of coconspirators that a particular defendant does not assist or agree to promote are generally not within the scope of that defendant’s jointly undertaken activity. * * * Hernandez contemplated the possibility of supplying Camarena with an unknown grade of powder cocaine, to be passed along by Camarena to an unknown customer with an unknown intention, and that is all that is shown by this record. The government put forth no evidence suggesting that converting the powder cocaine to crack was within the scope of Hernandez’s contemplated undertaking. To conclude otherwise would be simply speculation. Hernandez is entitled to be resentenced.
Posted by Marcia Oddi on May 5, 2008 11:24 AM
Posted to