Tuesday, September 30, 2014
Ind. Courts - More on "Allen Superior Court judge apologizes for ‘extremely tasteless’ remarks"
Updating this ILB post from August 21st, Jeff Neumeyer of 21ALIVE reports this evening, with video, in a story headed "Embattled Judge Finds Two Colleagues Throw Their Support Behind Opponent." A sample:
Allen County Juvenile Judge Dan Heath and retired prosecutor and Judge Steve Sims on Tuesday formally endorsed lawyer Jim Posey in his November bid for a civil court judge slot.
At a public court gathering in August to honor three retirees, [Allen Superior Court Judge Stanley Levine] took the microphone and joked that one of two women leaving her job could pursue a lucrative second career as a phone sex operator.
Levine later apologized for the remarks, admitting that what he meant to be humorous was, in truth, extremely tasteless.
Heath and Sims did not criticize Levine.
"Under the canons of ethics for judges, I am not permitted to speak on any other candidate. But I do want the public to know, if they're listening, that I had determined to endorse Jim before he even decided to run," said Judge Heath.
Ind. Decisions - Supreme Court decides case re charges of attempted child seduction
In Robert Corbin v. State of Indiana, a 3-page per curiam opinion, the Court writes:
This interlocutory appeal challenges the trial court’s refusal to dismiss charges of attempted child seduction. We affirm the trial court. * * *
The trial court denied Corbin’s motion to dismiss but certified the issue for an Appellate Rule 14(B) interlocutory appeal, which the Court of Appeals accepted.
Reviewing for an abuse of discretion and taking the facts alleged in the charging document as true, the Court of Appeals reversed the trial court. See Corbin v. State, 999 N.E.2d 70, 80 (Ind. Ct. App. 2013), vacated. The Court of Appeals concluded that as a matter of law, the internet solicitations did not constitute a substantial step toward the crime of child seduction because Corbin’s requests were simply an invitation to the student, not the required “urging” or “persuasion” discussed in Ward, and in any event because the requests were not made in the student’s presence, the student was never in a position to submit to the solicitation so the requests related to future conduct, not the immediate commission of a crime. We granted transfer of jurisdiction, Corbin v. State, 1 N.E.2d 149 (Ind. 2014) (table), and heard oral argument. * * *
In Ward, this Court addressed the question whether solicitation of a child may suffice for conviction of attempted child molesting. 528 N.E.2d at 52. We noted, as stated in the Court of Appeals opinion, that what constitutes an attempt offense in the area of sex offenses against children can, on occasion, be determined as a matter of law, but often, the question involves subtle distinctions in behavior and the nuance of the context in which the behavior occurs. One difference between Corbin’s case and most of the cases cited by the Court of Appeals, including Ward, is those cases involved review of a conviction after all of the evidence had been presented. Corbin’s case, by contrast, is in the charging stage, when other evidence, if there is any, is not yet known. And for the most part, the charges against him reflect the language of the seduction statute. At this point, we simply cannot say that dismissal is required and we conclude there are enough unanswered questions to affirm the trial court’s denial of the motion to dismiss. In short, the charges match the statutory elements and are sufficient to survive a motion to dismiss at this time.
Having previously granted transfer, we affirm the trial court and remand the case for further proceedings.
Ind. Decisions - 7th Circuit ruling on reconsideration of panel decision in Wis. voter ID case
Updating this ILB post from Sept. 28th, the 7th Circuit has now posted the opinion and dissent in its 5-5 Sept. 12th vote to deny en banc rehearing in Frank v. Walker, the recent Wisconsin voter ID case. The dissent starts on p. 7.
Ind. Decisions - Court of Appeals issues 6 today (and 16 NFP)
For publication opinions today (6):
In In re the Visitation of A.D. and B.D., Candy Miller v. Abby Dickens, a 13-page opinion, Judge Pyle writes:
Paternal grandmother, C.M. (“Grandmother”) appeals the trial court’s denial of her petition for grandparent visitation, under the Grandparent Visitation Act, with A.J.M.D. and B.R.M.D. (collectively “the Children”), who are the children of A.D. (“Mother”). The parties entered into an agreement—which was then set forth in an agreed order—that allowed Grandmother to have supervised visitation with the Children under certain conditions during the two months pending a final review hearing. Following that hearing, the trial court denied Grandmother’s grandparent visitation petition, finding that Grandmother had neither met her burden to rebut the presumption accorded to Mother as a fit parent nor her burden to show that visitation was in the Children’s best interests.In Travelers Casualty and Surety Company of America, et al v. Maplehurst Farms, Inc., et al , a 14-page opinion, Judge Barnes concludes:
Grandmother now appeals the trial court’s order, arguing that the trial court erred by reviewing this case as a petition for grandparent visitation instead of a motion to modify grandparent visitation. Given the specific record before us on appeal, we conclude that the trial court did not err by ruling on this case as a petition for grandparent visitation and by denying Grandmother’s petition. We affirm.
In summary, we conclude that the trial court erred when it interpreted Maplehurst I to require Travelers to pay costs that were incurred as a result of the Dean Settlement. As a result, the trial court erred by granting summary judgment to Maplehurst. We reverse and remand for proceedings consistent with this opinion.In Calvin Hair v. Deutsche Bank National Trust Company, as Trustee for Ameriquest Mortgage Securities, Inc., Asset-Backed Pass-Through Certificates, Series 2003-1, an 11-page opinion, Judge Barnes writes:
Calvin Hair appeals the denial of his motion to set aside a default judgment for foreclosure entered in favor of Deutsche Bank National Trust Company (“Deutsche Bank”). We reverse and remand.In YTC Dream Homes, Inc., et al. v. DirectBuy, Inc., et al. , a 29-page opinion, Judge Brown writes:
The issue before us is whether the judgment obtained by Deutsche Bank was void as to Hair for lack of personal jurisdiction, resulting from ineffectual service of process. * * *
Because the foreclosure judgment obtained by Deutsche Bank was void as to Hair, we reverse the denial of Hair’s motion to set aside judgment. Hair’s judgment lien against the Talbott Street property still exists and we remand for further proceedings to address that lien.
In this interlocutory appeal, YTC Dream Homes, Inc., et al. (the “Appellants”)1 appeal the trial court’s order denying five pro hac vice petitions in favor of DirectBuy, Inc., et al. (the “Appellees”). The Appellants raise three issues which we consolidate and restate as whether the court erred when it denied the pro hac vice petitions. We reverse and remand. * * *In Peter Griffith v. State of Indiana , an 18-page, 2-1 opinion, Judge Brown writes:
The Appellants argue that the trial court erred in its interpretation of Local Rule 5(C) and that to the extent Local Rule 5(C) conflicts with Ind. Admission and Discipline Rule 3(2) it is “deemed without force and effect.” Appellants’ Brief at 8 (quoting Armstrong v. Lake, 447 N.E.2d 1153, 1154 (Ind. Ct. App. 1983)). They maintain that a local rule which attaches a condition to the application of a rule issued by the Indiana Supreme Court “is an impermissible ‘impingement thereon’ . . . .” Id. (quoting Armstrong, 447 N.E.2d at 1154 (quoting Lies v. Ortho Pharmaceutical Corp., 259 Ind. 192, 195, 286 N.E.2d 170, 173 (1972))). The Appellants cite to the Indiana Supreme Court’s pronouncement in In re Fletcher that “appearances in one state by an attorney regularly admitted and licensed to practice in another state are generally permitted as a matter of comity, incident to the disposition of a particular matter isolated from his or her usual practice in the state of his or her residence” and that this principle is represented in Rule 3(2). Id. at 9 (quoting In re Fletcher, 655 N.E.2d at 59 n.1). * * *
For the foregoing reasons, we reverse the court’s September 9 Order, and we remand with instructions to grant the Attorneys pro hac vice admission.
Peter Griffith appeals his conviction and sentence for battery by means of a deadly weapon, a class C felony. Griffith raises two issues, which we revise and restate as: I. Whether the trial court abused its discretion in excluding certain evidence; and II. Whether Griffith’s sentence is inappropriate in light of the nature of the offense and his character. * * *In William Remy v. State of Indiana, a 12-page opinion, Judge Robb writes:
For the foregoing reasons, we affirm Griffith’s conviction and sentence for battery by means of a deadly weapon. Affirmed.
BRADFORD, J., concurs.
BARNES, J., dissents with separate opinion. [which begins, at p. 14] I dissent because I believe my colleagues, as well as the trial court, applied a too stringent standard in their interpretation of Evidence Rule 613(b). It is clear to me that Federal Rule of Evidence 613(b), which is identical to Indiana Evidence Rule 613(b), allows impeachment by prior inconsistent statements after the witness to be impeached has already testified. This is true even if the party wanting to introduce the prior inconsistent statements did not cross-examine the witness about those statements. * * * I dissent because I believe my colleagues, as well as the trial court, applied a too stringent standard in their interpretation of Evidence Rule 613(b). It is clear to me that Federal Rule of Evidence 613(b), which is identical to Indiana Evidence Rule 613(b), allows impeachment by prior inconsistent statements after the witness to be impeached has already testified. This is true even if the party wanting to introduce the prior inconsistent statements did not cross-examine the witness about those statements.
In Orr v. State, 968 N.E.2d 858, 863 (Ind. Ct. App. 2012), prior to Griffith’s trial, another panel of this court adopted the federal interpretation of Evidence Rule 613(b).
Following a jury trial, William Remy was convicted of three counts of child molesting, all Class A felonies; one count of child molesting as a Class C felony; and performing sexual conduct in the presence of a minor, a Class D felony. He received an aggregate sentence of ninety-five and one-half years imprisonment. Remy appeals his convictions and sentence, raising the following issues for our review: (1) whether the trial court abused its discretion by allowing certain pornographic materials to be admitted at Remy’s trial; and (2) whether Remy’s sentence is inappropriate in light of the nature of his offenses and his character. Concluding the admission of pornographic images at Remy’s trial was erroneous but amounts to harmless error and that Remy’s sentence is not inappropriate, we affirm.NFP civil opinions today (2):
NFP criminal opinions today (14):
Ind. Decisions - Supreme Court decides one today, including guidance to the state courts dealing with abusive and vexatious litigation practices
In Gersh Zavodnik v. Irene Harper, a 14-page per curiam opinion in a case with a pro se appellant, the Court writes:
The trial court dismissed Mr. Zavodnik's action under Indiana Trial Rule 41(E), and the Indiana Court of Appeals dismissed his appeal for failure to file a timely brief and appendix. We now deny transfer by this per curiam opinion, which also gives guidance to this state's courts on some options when confronted with abusive and vexatious litigation practices.
Plaintiff Gersh Zavodnik is a prolific, abusive litigant. A search of his name brings up 123 cases in Marion County and other counties on the Odyssey case management system (which is not yet in place in all Indiana counties). All but three of those cases were filed since January 2008. Mr. Zavodnik is also a party in thirty-four cases before the Court of Appeals and this Court, including twenty-three special judge requests. * * *
Nothing Mr. Zavodnik has filed or done in this case shows any desire to litigate this case expeditiously to resolution on the merits. Rather, he has burdened the opposing party and the courts of this state at every level with massive, confusing, disorganized, defective, repetitive, and often meritless filings. And this Court has previously warned Mr. Zavodnik against continuing such abusive and burdensome litigation tactics. * * *
As a matter of grace, this Court will once again decline to impose sanctions on Mr. Zavodnik. But we will provide the courts of this state with guidance on options available to sanction and otherwise restrict the abusive and burdensome litigation tactics practiced by Mr. Zavodnik and a small number of other litigants in this state. * * *
I. Litigants Do Not Have a License to Abuse the Litigation Process [p. 5]A. Statutes and rules addressing abusive litigation practices.[p. 5]II. Pro Se Litigants Must Play by the Rules [p. 8]
B. Inherent power of courts to limit abusive litigation practices. [p. 6]
III. Litigants Do Not Have an Unfettered Right to Proceed In Forma Pauperis [p. 9]
IV. Courts May Place Reasonable Limits on Filings by Abusive Litigants [p. 10]
[examples of restrictions are listed on p. 11]
V. Judges Should Not Bow to Baseless Demands for Disqualification [p. 11]
Conclusion. * * *
Being duly advised, the Court DENIES the appellant’s petition to transfer jurisdiction. The Court refrains from imposing sanctions or restrictions at this point, but Mr. Zavodnik can expect any further abusive litigation practices in any judicial forum in this state to be met with appropriate sanctions and restrictions. No petition for rehearing is permitted. See App. R. 58(B).
Ind. Courts - Disciplinary charges filed against Clarksville town court judge
Here is the news release. Some quotes:
The Indiana Commission on Judicial Qualifications has filed disciplinary charges against Clarksville Town Court Judge Mickey K. Weber. The Commission has filed one count of misconduct against Weber related to his January 2014 misdemeanor arrest in Kentucky for Operating a Motor Vehicle While Under the Influence of Alcohol.
In the "Notice of the Institution of Formal Proceedings and Statement of Charges," the Commission asserts police investigated an incident where Judge Weber was alleged to have hit and damaged two parked cars and a fence. At the time he admitted to having been drinking alcohol. Judge Weber was arrested and charged under Kentucky North case 14-F-000600. He self-reported the arrest to the Judicial Qualifications Commission.
In March 2014, Judge Weber pled guilty in Jefferson District Court in Louisville, Kentucky to misdemeanor charges of Criminal Mischief in the second degree and Operating a Motor Vehicle While Under the Influence of Alcohol in the first degree. Judge Weber was ordered to complete an alcohol education class, assessed fines and court costs, and given a mandatory driver's license suspension. * * *
Judge Weber has the opportunity to file an Answer to the charges with the Clerk of the Appellate Court within twenty days of receiving the charges. After the Answer is filed or twenty days has passed, the Indiana Supreme Court will appoint three Masters (Judges) to conduct a public hearing on the charge that Judge Weber committed judicial misconduct. Supreme Court Rules also allow for the Commission and the judge to submit a settlement agreement to the Supreme Court. Any settlement agreement or any decision reached by the Masters must be approved by the Indiana Supreme Court.
Environment - SCOTUS docket "missing the high-profile environmental cases that dominated last term"
The quote is from a long, interesting Sept. 29th article in Greenwire by Jeremy P. Jacobs, surveying a number of cases. Of particular interest is:
... a pair of cases involving Department of Labor minimum wage and overtime policies [dealing with interpretive rules].
The cases stem from the department's decision in 2010 to change its interpretation of an exemption for employees whose primary duty is selling financial products.
After previously saying mortgage bankers qualified for the exemption -- meaning employers don't need to adhere to the minimum wage and overtime requirements -- the department reversed itself.
The department issued its change in policy in an "interpretive rule" without a notice-and-comment period. The Mortgage Bankers Association challenged the department, and the U.S. Court of Appeals for the District of Columbia Circuit agreed.
When "an agency has given its regulation a definitive interpretation, and later significantly revises that interpretation, the agency has in effect amended its rule, something it may not accomplish [under the Administrative Procedure Act] without notice and comment," the D.C. Circuit ruled.
The ruling poses a problem for EPA, which has increasingly used interpretative rules to set policy, said William Buzbee, an environmental law professor at Georgetown Law School.
"Because of the legislative gridlock [on Capitol Hill], EPA has been making more by law interpreting existing law," he said, "because [of], frankly, the need for a lot of questions to be answered."
The ruling immediately poses a problem for EPA's "Waters of the United States" regulatory proposal, which seeks to establish what streams, bogs, marshes and other wetlands qualify for federal protections. After issuing the proposal in March, EPA also carved out more than 50 agricultural exemptions in an interpretive rule (Greenwire, April 4).
Solicitor General Donald Verrilli, in asking the Supreme Court to take the cases, Perez v. Mortgage Bankers Association and Nickols v. Mortgage Bankers Association, said the D.C. Circuit ruling would significantly hamstring agencies.
"An agency thus must now undertake notice-and-comment rulemaking simply to explain to the public that the agency has corrected or revised its previous legal interpretation of a regulation in some significant way -- even if no one has ever relied on the prior interpretation," Verrilli wrote.
Buzbee said the practical effect would be to "ossify the process" for interpretive rules. The justices will hear arguments in the case at the beginning of December.
Courts - Texas' tweeting Supreme Court justice
The main reason for his online presence, he said, is a practical one: staying connected to voters. Texas state judges are elected, and State Supreme Court justices serve six-year terms. Justice Willett, who was first appointed to the court by Gov. Rick Perry in 2005, has won two elections since and will be on the ballot again in 2018. He calls it “political malpractice” not to make use of social media.
Justice Willett also noted that the American Bar Association’s ethical guidelines approve of the “judicious” use of social media in judicial elections as “a valuable tool for public outreach.” (The wisdom of having an elected judiciary is, of course, another matter.)
Certainly Twitter is not the only way judges — elected or appointed — run into trouble for what they say or do out of court. * * *
For his part, Justice Willett said he errs on the side of self-censorship. “I try to be careful,” he said. “Usually what goes through my mind before I hit the tweet button is, did I misspell or mis-grammatize anything, but also, is this worth polluting the interwebs with for posterity?”
Ind. Courts - More on: 7th Circuit tie votes on questions of en banc review are reminder of the unfilled vacancy
Updating this ILB post from yesterday, about how the 7th Circuit has had an unfilled seat since 2010, and there is another vacancy coming up next spring, a reader has pointed to this Sept. 29th explanatory article by Ian Millhiser in Think Progress. Some quotes:
Sen. Patrick Leahy (D-VT) is chair of the Senate Judiciary Committee. In that role, he has given each senator veto power over any person nominated to a federal judgeship in their home state. This veto enabled a single Republican senator to control the balance of a key federal appeals court, which just handed down a decision restricting voting rights in Wisconsin. * * *
Although ten judges voted on whether to reconsider Wisconsin’s voter ID law, there are actually eleven active judgeships on the Seventh Circuit. The eleventh seat, however, has been vacant for more than four years.
In 2010, President Obama nominated a University of Wisconsin law professor named Victoria Nourse to this vacancy — Nourse was one of four potential nominees suggested to the White House by a nominating commission sponsored by the state’s two senators. This nomination died, however, after Sen. Ron Johnson (R-WI) defeated incumbent Sen. Russ Feingold (D-WI) in the 2010 election. Shortly after his election, Johnson objected to Nourse’s nomination, claiming that the University of Wisconsin law professor “has very little connection to the state of Wisconsin.”
Johnson’s objection to Nourse took on particular significance after he declined to return a “blue slip” on Nourse to the Senate Judiciary Committee. * * *
Under Leahy’s rule — a rule that Leahy could unilaterally change at any time if he chose to — Johnson’s decision not to return a blue slip on Nourse held up her nomination indefinitely.
Eventually, in early 2012, Nourse asked President Obama to withdraw her nomination.
It’s possible that Johnson had a particular objection to Nourse and that there is some other lawyer that Johnson and Obama could agreed upon to fill the vacancy judgeship, but Johnson hasn’t exactly been in a hurry to find a mutually acceptable nominee. Johnson and his Democratic counterpart, Sen. Tammy Baldwin (D-WI), did not establish their own judicial nominating commission to screen potential nominees until April of 2013. Moreover, the commission waited until July 25, 2014 to announce that it was accepting applications for the Seventh Circuit vacancy — that’s more that four years after this vacancy opened and more than two years after Nourse withdrew her name. [ILB emphasis]
Monday, September 29, 2014
Law - Ferguson, Missouri Demands High Fees To Turn Over City Files. And it should come as no surprise! What about Indiana?
First, why should it come as no surprise? Because Ferguson's budget relies on fees and fines:
Governing had a story on August 22nd, reported by Mike Maciag, headed "Skyrocketing Court Fines Are Major Revenue Generator for Ferguson." A sample:
Ferguson's budget relies heavily on public safety and court fines that have skyrocketed in recent years. A review of Ferguson’s financial statements indicates that court fine collections now account for one-fifth of total operating revenue. The St. Louis suburb of about 21,000 residents took in more than $2.5 million in municipal court revenue last fiscal year, representing an 80 percent increase from only two years prior, when fines netted about $1.4 million. * * *A Sept. 12th NYT story has an amazing graphic with this label:
Brendan Roediger, an assistant professor at the Saint Louis University School of Law who supervises a local civil advocacy clinic, said practices of the local court system are a major driver of Ferguson residents’ distrust of government and law enforcement. Roediger described a court system in Ferguson and select areas of St. Louis that function primarily as a revenue generator. “They don’t want to actually incarcerate people because it costs money, so they fine them,” he said. “It appears to be a blatant money grab.”
From his time representing clients in Ferguson, Roediger estimates the court -- which holds three sessions each month -- heard 200 to 300 cases per hour some days.
The city’s most recent annual budget report attributed the sharp increase in fines to a “more concentrated focus on traffic enforcement” from both manned enforcement and the installation of traffic cameras. * * *
Ferguson’s financial documents depict a city increasingly reliant on fines to fund government operations. In all, fines and forfeitures accounted for 20 percent of the city’s $12.7 million operating revenue in fiscal year 2013, up from about 13 percent in 2011.
An Outlier for Arrest Warrants. Data from municipal courts across Missouri show that in 2013, the city of Ferguson had the highest number of warrants issued in the state relative to its size. Arrest warrants are often served by municipal courts when someone fails to appear in court to pay fines for a traffic or other violation, like shoplifting, assault or disturbance of peace.NPR's Joseph Shapiro had a story Sept. 10th that began:
Here are just a few of the fees the city court in Ferguson, Mo., can bill you for:Second, here is the long story today on high fees for public records reported by Jack Gillum of the AP, in the Huffington Post. Some quotes:
There's a fee to plead guilty. That's $12.
You even pay for your own arrest warrant.
"The sheriff can charge you for the mileage that it costs them to serve a bench warrant," notes Alexes Harris, an associate professor of sociology at the University of Washington.
Each individual fee may seem small, but there are at least a dozen, and they add up. Harris, on her computer, pulled up Ferguson's municipal code.
There's a $2 fee for every court visit. That money goes into a pot for the police department, to pay for police training. There's a charge to ask for a court appearance to be delayed "because of work or family obligations," Harris notes. "So there are just layers and layers of local fines and user fees that are charged to people using the court system."
Plus, they're on top of court fines, which in Ferguson typically run a few hundred, or even a thousand dollars, says Thomas Harvey, co-founder of Arch City Defenders, which provides legal services to the poor.
And these are from the city's municipal court, which handles low-level, nonviolent offenses, mostly traffic violations or code violations like jumping on the light-rail public transportation without paying for a ticket.
Ferguson collected $2.6 million in court fines and fees last year. That was the city's second-largest source of income — or about 21 percent of its total budget.
Harris wrote a book, due out in 2015, about the widespread use, in Missouri and across the country, of court fines and user fees to fund government. It's titled Pound of Flesh: Monetary Sanctions as Permanent Punishment for Poor People. She says these costs fall heavily "on the poor and people of color who are the most likely to come to court." But the poor, she says, "should not be seen as a revenue-generating entity. It makes no sense."
A yearlong NPR investigation, "Guilty and Charged," described the explosion of fees charged to criminal defendants across the country to fund government, as court dockets have grown crowded and the prison population has increased 700 percent over 40 years.
Defendants are now charged for a long list of government services that were once free — including ones that are constitutionally required. For example, NPR found, in at least 43 states and the District of Columbia, defendants can be billed for a public defender; in at least 41 states, inmates can be charged room and board for jail and prison stays; and in at least 44 states, offenders can get billed for their own probation and parole supervision.
WASHINGTON (AP) — Bureaucrats in Ferguson, Missouri, responding to requests under the state's Sunshine Act to turn over government files about the fatal shooting of 18-year-old Michael Brown, are charging nearly 10 times the cost of some of their own employees' salaries before they will agree to release any records.What about Indiana? In the 2014 the General Assembly nearly passed a bill similar to the Missouri law. The bill even included provisions allowing an agency to charge a person using a cell phone for photographing a record.
The move discourages journalists and civil rights groups from investigating the shooting and its aftermath.
The city has demanded high fees to produce copies of records that, under Missouri law, it could give away free if it determined the material was in the public's interest to see. Instead, in some cases, the city has demanded high fees with little explanation or cost breakdown. It billed The Associated Press $135 an hour — for nearly a day's work — merely to retrieve a handful of email accounts since the shooting.
That fee compares with an entry-level, hourly salary of $13.90 in the city clerk's office, and it didn't include costs to review the emails or release them. The AP has not paid for the search.
Price-gouging for government files is one way that local, state and federal agencies have responded to requests for potentially embarrassing information they may not want released. Open records laws are designed to give the public access to government records at little or no cost, and have historically exposed waste, wrongdoing and corruption. * * *
Some state open records laws provide records for free or little cost, while others like Missouri can require fees that "result in the lowest charges for search, research and duplication." The AP asked for a fee waiver because it argued the records would serve the public interest, as the law allows, but that request was denied. * * *
Other governments also have demanded spectacular fees. During the 2008 presidential campaign, for instance, news organizations asked for emails belonging to former Alaska Gov. Sarah Palin, the former Republican vice presidential nominee.
The Anchorage Press said officials at first wanted $6,500 in search fees, leading the newspaper to withdraw its request. Thousands of pages of those emails were ultimately provided to news organizations for about $725 in copying charges.
Ind. Courts - More on “This is unlike any contempt case I have ever read about or heard about”
Updating this ILB post from Sept. 16th, the Kokomo Perspective today has a story by Pat Munsey reporting on a potential settlement agreement between the parties in the Howard County dispute involving Judge Menges and Mayor Goodnight of Kokomo, that begins:
Lawsuits would be dropped by city, mayor’s record expunged as part of proposalThe story includes a link to the proposed settlement.
Howard County just wants it all to go away. That was the message sent to the city of Kokomo last week in the form of a proposed settlement agreement concerning the recent legal wrangling over the Industrial Heritage Trail and access to the county courthouse.
The proposal, which was signed by 11 county officials -- including the Howard County Commissioners, all five county judges, the Howard County Sheriff, and the county’s attorneys -- would drop all lawsuits related to the issue, allow a 20-foot access lane to the west side of the courthouse, and expunge the direct contempt charge from Mayor Greg Goodnight’s record.
“We hoped to put the matter to bed and let the city get the trail finished,” said Howard County Commissioner Tyler Moore. “We want to move down the road. Knowing that it has never been our intent to impede the progress of the trail while still maintaining a desired access to the west side courthouse, we wanted to extend the olive branch.
“To allow that to happen and put the recent series of events behind us, that was the intent of putting the proposal together and sending it over.”
The agreement indicates that the county would have a perpetual and unconditional right of access of 20 feet across the trail and into Buckeye Street and that the city would complete construction on the trail within 10 days of the agreement. Additionally, the city would drop its lawsuit against the county which sought to remove all access to the west side of the courthouse.
The agreement also addresses the legal conflict between Goodnight and Howard Superior Court I Judge William Menges. In it, Menges agrees to set aside the direct contempt order placed against the mayor last month and have it expunged from his record. In exchange, Goodnight would dismiss his appeal which is currently in front of the Indiana Court of Appeals.
Ind. Gov't. - "Editorial: Eric Turner, and the growth of cynicism"
The Indianapolis Star ran this editorial this weekend. It begins:
Somewhere in the recesses of the Indiana Statehouse there must be a dark room where deep-rooted cynicism grows like mold in a dank basement. How else to explain the steady string of self-serving, infuriating acts that leak out of the state Capitol year after year?
The most recent example is ethically challenged state Rep. Eric Turner’s announcement this month that he will resign from the Indiana House shortly after November’s election if he wins another term.
Turner, R-Cicero, plans to take a job with a Georgia-based Christian ministry. But only after he asks voters in his heavily Republican district to support him one last time.
If Turner wins, which remains a distinct possibility because of the longtime lawmaker’s name recognition, financial support and get-out-the-vote network, a group of Republican insiders will then pick his replacement. That designated-lawmaker would have nearly two years to take advantage of the tools of incumbency before ever having to face voters.
Ind. Courts - "Changes in Marion County Courts and Other Observations"
Judge Oakes article also talks about the IndyBar judicial surveys. He writes in part:
[M]ost sitting judges have been rated well by those participating in the surveys. We now have slightly more sitting judges scoring above 90 percent on the recommended-to-serve portion than at any other time in the last 15 years. The difference is not that large to show a trend, but more of the Marion County judges are scoring above 90 percent recommended now than ever before. * * *ILB: For those unfamiliar with the Indianapolis Bar survey, here are the 2014 survey results. Recall that the judges run staggered 6-year terms, so only some of the seats were up for election in 2014. And here are the questions the participants are asked to consider about each candidate.
I cannot recall seeing other surveys that rank their judges as well as the Marion County judiciary. There are always exceptions, but it is good to know that IndyBar surveys generally show that an increasing number of lawyers hold our Marion County judiciary in an increasingly favorable opinion.
Ind. Decisions - Court of Appeals issues 1 today (and 10 NFP)
For publication opinions today (1):
In Bryan L. Good v. Wells Fargo Bank, NA., a 14-page opinion, Judge Barnes writes:
Bryan Good appeals the trial court’s grant of partial summary judgment in favor of Wells Fargo Bank, N.A., (“Wells Fargo”) and the subsequent judgment of foreclosure. We reverse and remand.NFP civil opinions today (4):
Good raises seven issues. We address the dispositive issue, which we restate as whether the trial court properly granted partial summary judgment for Wells Fargo on the basis that Wells Fargo was entitled to enforce the promissory note executed by Good. * * *
Wells Fargo initially asserted that it had possession of the Note and was either the original payee or the Note had been duly endorsed. Good responded, challenging Wells Fargo’s status as holder because the Note designated by Wells Fargo was not endorsed. In its reply, Wells Fargo asserted that, because the Note was an electronic note, “delivery, possession, and endorsement of an electronic promissory note are not required pursuant to federal statute.” * * *
Wells Fargo is correct that, pursuant to §7021(d), a person having control of a transferable record, which includes the Note, is the holder for purposes of the UCC and that delivery, possession, and endorsement are not required. According to §7021(b), to show it controlled the note, Wells Fargo was required to designate evidence that a system employed for evidencing the transfer of interests in the Note reliably established Wells Fargo as the person to whom the Note was transferred. A system that satisfies the control requirement is described in §7021(c). Wells Fargo contends that its “possession of the Note and the recitation of its electronic record keeping procedures in the Certificate evidences Well Fargo’s control of the Note . . . .” We disagree. * * *
[T]he Certificate does not suggest that Wells Fargo maintains the single authoritative copy of the Note as described in §7021(c)(1). * * *
Pursuant to statute, upon Good’s request, Wells Fargo was required to provide “reasonable proof” that it was in control of the Note. 15 U.S.C. §7021(f). “Proof may include access to the authoritative copy of the transferable record and related business records sufficient to review the terms of the transferable record and to establish the identity of the person having control of the transferable record.” Id. Although Good repeatedly requested such proof, Wells Fargo did not provide any evidence documenting the transfer or assignment of the Note from Synergy to either Wells Fargo or Fannie Mae. Thus, Wells Fargo did not demonstrate it controlled the Note by showing that a system employed for evidencing the transfer of interests in the Note reliably established that the Note had been transferred to Wells Fargo. See 15 U.S.C. §7021(b).
Because Wells Fargo did not establish that it controlled the Note as described in §7021, it did not establish that it was the person entitled to enforce the Note as the holder for purposes of the UCC. See 15 U.S.C. §7021(d); I.C. § 26-1-3.1-301(1). Thus, partial summary judgment for Wells Fargo on this issue was improper. * * *
Wells Fargo has not shown that it controls the Note for purposes of §7021(b) and, accordingly, has not established its status as holder for purposes of the UCC. Because Wells Fargo has not established that it was entitled to enforce the Note as its holder, the trial court’s grant of summary judgment was improper and the resulting judgment must be set aside. We reverse and remand.
NFP criminal opinions today (6):
Courts - "The Voting Wars Heat Up"
Richard L. Hasen has this article today in Slate that begins:
The fights in our states over how hard or easy it is to vote have been filling the courts and are headed toward the Supreme Court. The cases range from voter ID laws to early voting rules and beyond. Already there is a case from Ohio, with ones from Wisconsin, North Carolina, and Texas potentially on the way in a matter of days or weeks. The stakes are high, not only for the lazy 2014 midterm elections but also for the 2016 presidential election and for the protection of voting rights in the next decade.Keep reading, there is much more.
The fact that the cases are making it to the Supreme Court at about the same time is no surprise. Over the past decade, in the period I have called “the voting wars,” we have seen both an increase in restrictive voting rights legislation passed by Republican legislatures, such as voter ID laws, and litigation from both Democrats and Republicans to manipulate the election system to their advantage. In 2008, the Supreme Court rejected a constitutional challenge to Indiana’s voter identification law, and in 2013, the Supreme Court in the Shelby County case struck down a key portion of the Voting Rights Act providing that states with a history of racial discrimination in voting get approval before making changes to their voting rules and procedures.
Freed by these rulings, Republican legislatures have imposed tougher voter ID laws, cutbacks in early voting, limitations on voter registration, and other rules that make it harder to cast a valid ballot, such as North Carolina’s rule saying that if a voter casts a ballot at the wrong precinct, it cannot be counted for any races, even those for which the voter is eligible to vote.
Voting rights advocates have sued to block all or parts of these laws.
Environment - "Eagle Marsh project proving complicated"
This is the project intended "to prevent Asian carp from entering the Mississippi and Great Lakes watersheds, both of which converge in the marsh." Brian Francisco has the story in the Sunday Fort Wayne Journal Gazette.
Courts - "North Carolina teeth-whitening case could have sweeping implications for other states"
Anne Blythe reported Sept. 25th in the Raleigh News & Observer in a long story that begins:
RALEIGH — What started as an attempt by the N.C. Board of Dental Examiners to kick teeth-whitening services out of mall kiosks, spas and other retail spaces has morphed into a major legal battle with the potential to transform the makeup and reach of similar licensing boards across the country.From later in the story:
The U.S. Supreme Court is scheduled on Oct. 14 to take up a case brought by the dental examiners board against the Federal Trade Commission.
At issue is whether the North Carolina board, made up of dentists, overstepped its regulatory bounds when starting to send cease-and-desist letters seven years ago to teeth-whitening businesses unaffiliated with dental offices. The FTC ruled several years ago that the board engaged in unfair trade practices, and the board has challenged that up to the U.S. Supreme Court.
The high court’s decision could have sweeping repercussions for how states regulate varied fields – from dentistry to health care to law.
The FTC ordered the North Carolina dental board, which was created by the N.C. General Assembly, to stop sending warning notices to the nonlicensed teeth-whitening services.ILB: Here is the SCOTUSblog webpage for North Carolina Board of Dental Examiners v. Federal Trade Commission.
The board challenged the FTC ruling, arguing that the federal government was interfering with the ability of a state regulatory board to protect public health and safety.
An administrative law judge and two higher courts disagreed, laying out a path for the country’s highest court to weigh in on a case that has caught the attention of the American Medical Association, veterinarians, optometrists, orthodontists, anesthesiologists and law bars.
A 4th Circuit U.S. Court of Appeals three-judge panel found the North Carolina dental board – with its six dentists appointed by other North Carolina dentists, not state officials – to be a private party not subject to state oversight.
Had there been state oversight, the three-judge panel ruled, and not “private actors in the marketplace taking action outside of the procedures mandated by state law to expel a competitor from the market,” the board could have been exempt from antitrust law.
As the North Carolina dental board continues to challenge the ruling, 23 states have expressed a legal interest in the case and signed on to a friend-of-the-court brief.
Angus Loten and Sarah E. Needleman reported on this case in an Aug. 27th $$$ story, headed "State Licensing Boards Under Fire From Within." It begins:
The Supreme Court will take up an antitrust case this fall that could curb the proliferation of state licenses, a top worry for U.S. small-business owners and entrepreneurs.
At issue: Can state licensing boards staffed with business owners and professionals regulate their own markets without oversight from government employees?
Ind. Law - More on: The Indiana POST Program: Physician orders for scope of treatment
The POST form, which originated in Oregon, is a legally recognized document that covers an individual's detailed preferences in areas including resuscitation, hospitalization and feeding tubes. POST is used voluntarily by those with serious, advanced or terminal illness, or with advanced frailty.
Studies have shown the form increases the chances that patients will receive the end-of-life care that they truly wish. That should be motivation enough to begin those difficult conversations. Hoosiers should consider all their options, including this new legislation, in planning for the future.
Environment - "NWI woman to represent Indiana on Great Lakes Commission"
Bill Dolan reports in the NWI Times in a story that begins:
PORTAGE | Gov. Mike Pence has named the Northwest Indiana Forum's environmental specialist to represent Indiana on the Great Lakes Commission.
Kay Nelson, who has worked with business and environmental leaders around the area, will help the international agency oversee water use in the Great Lakes Basin.
Nelson, who received a bachelor's degree in environmental science and natural resources from Purdue University and worked previously with the Indiana Department of Environmental Management, joined the Forum in 1998.
Katie R. Holderby, a spokeswoman for the Forum, said Nelson's responsibilities include ensuring economic development is in harmony with environmental protection. The forum is a privately funded economic development group.
Nelson said the Great Lakes Commission was formed six decades ago to ensure Great Lakes water is preserved as a continuing resource for the eight states and two Canadian provinces bordering them. She said the Indiana General Assembly recently approved legislation supporting its mission.
Ind. Gov't. - "Secretary of State challenger wants to make elections more open"
CNHI's Maureen Hayden's Sunday column for the Anderson Herald Bulletin begins:
INDIANAPOLIS — Beth White was ready with a list of election reforms as she faced a press gaggle on the Statehouse steps last week — just 40 days before her race for Secretary of State goes to voters.
“Here’s the issue,” said White, the underdog challenger. “Our elections here in Indiana need to be better, and they need to work better for the people of Indiana.”
The Democrat trained as a lawyer went on to make an eloquent case for early voting, longer poll hours, and a redistricting process free from the taint of partisan politics.
She made her most vigorous argument in defense of democracy.
White said she’s horrified that Indiana is among the worst in the nation for voter turnout. In 2010, the state ranked 48th among the 50 states. This past May, only 13 percent of its registered voters went to the polls for the primary elections — down from 22 percent in 2012.
When questioned by a reporter as to why it matters if the disengaged don’t vote, White shot back, “Because democracy is not a spectator sport.”
Voter turnout, she said, is a measure of the public’s trust in government.
“Democracy only works when the relationship between government and the governed is a symbiotic relationship, when people believe government cares about them and are invested in influencing their government through their vote,” she said.
People who don’t buy into voting don’t buy into government, she argued. She called that “dangerous” given that government calls on citizens to follow laws, send children to school and pay taxes.
Incumbent Secretary of State Connie Lawson speaks, too, about the need for more voter engagement. But she has a harder row to plow.
As a legislator, the Republican Lawson co-authored a controversial voter ID law — among the first in the nation. This past summer, she launched a purge of the voter rolls, prompted by a lawsuit that claimed the state’s voting rolls were filled with dead people and others long gone.
Lawson argues that she’s supported reforms that “makes it easier to vote and harder to cheat.”
White disputes the first half of the premise and calls voter disillusionment “the real crisis.”
Indiana is one of only three states that closes its polls at 6 p.m. on Election Day, which White says keeps too many voters from participating. To those who question the cost of keeping the polls open longer, she responds, “The cost I worry about is what it means for our democracy when so many people don’t vote.”
Ind. Decisions - Transfer list for week ending September 26, 2014
[Search all the Transfer Lists: The ILB feature, "Search the ILB Transfer Lists," allows you to do just that, back to Feb. 2004. Check it out. Read the instructions. Note that the search is now current through the June 20, 2014 list.]
Here is the Clerk's transfer list for the week ending Friday, September 26, 2014. It is two pages (and 23 cases) long.
One transfer was granted last week:
- State of Indiana v. Michael E. Cunningham - Oral argument (transfer pending) was heard by the Court on Sept. 25th, and transfer was granted that day, vacating the 2-1 Feb. 27, 2014 COA opinion where the dissent wrote: "In my view, however, the circumstances did not necessitate that Cunningham exit his vehicle, and indeed he chose to do so with full knowledge that, if he exited the vehicle, it would result in a pat-down search."
Ind. Courts - 7th Circuit tie votes on questions of en banc review are reminder of the unfilled vacancy
An attorney reader writes this morning, referencing this post:
Your post about the 5-5 vote to deny rehearing en banc review of the Wisconsin voter ID case is a reminder of how frustrating it is that the Seventh Circuit has 11 seats but is operating with only 10 regular judges. This has resulted in a couple of cases in which en banc review was granted but the district court was affirmed on a tie vote, and in one such case the Circuit was left with an unresolved conflict over the correct legal standard to prove class-of-one equal protection claims. Del Marcelle v. Brown County Corp., 680 F.3d 887 (7th Cir. 2012) (en banc), cert. denied. As near as I can tell, this is because the vacancy created by the death of Judge Daniel Evans in 2010 remains open, and in fact the President has never even made a nomination to fill it.Indeed. The ILB has heard several names mentioned as potential nominees, but nothing further.
In addition, Judge Tinder has announced his plans to retire in the spring of 2015.
Catch-up: What did you miss over the weekend from the ILB?
From Sunday, September 28, 2014:
Indiana Courts - More on "Electoral Chaos in Wisconsin"; 7th Circuit denies en banc review of Sept. 12th ruling
- Courts - Supreme Ambitions: A Novel by David Lat
From Saturday, September 27, 2014:
From Friday afternoon, September 26, 2014:
- Ind. Decisions - 7th Circuit decides one today; oral argument was 9/22, just four days ago
- Essential ILB posts: The ILB has selected its "essential posts" from the past two weeks - Don't miss this new feature!
Ind. Decisions - Upcoming oral arguments this week and next
This week's oral arguments before the Supreme Court (week of 9/29/14):
Thursday, Oct. 2
- 9:00 AM - Matter of the Civil Commitment of T.K. v. Department of Veteran's Affairs (49A02-1310-MH-878) The Marion Superior Court found T.K. was dangerous to others and gravely disabled, and issued an order involuntarily committing T.K. The Court of Appeals affirmed in T.K. v. Dept. of Veteran Affairs, No. 49A02-1310-MH-878 (Ind. Ct. App. Jan. 30, 2014) (NFP memo. dec.), transfer pending. T.K. has filed a petition seeking transfer of jurisdiction to the Supreme Court.
- 9:45 AM - Daniel Pierce v. State of Indiana (78S05-1407-CR-460) Pierce was charged with multiple counts of child molesting with respect to three children. The Switzerland Circuit Court denied his motion to sever. The Court of Appeals reversed and remanded for a new trial. Pierce v. State, No. 78A05-1305-CR-211 (Ind. Ct. App. 2014) (NFP memo. dec), vacated. The Supreme Court has granted a petition to transfer the case and has assumed jurisdiction over the appeal.
ILB: This was a 2-1, Jan. 27, 2014 NFP opinion, involving, inter alia, admission of evidence re pornography.
- 10:30 AM - State Board of Funeral and Cemetery Services v. Settlers Life (49S05-1408-PL-514) The State Board of Funeral and Cemetery Service determined a life insurance policy issued by Settlers Life Insurance Company does not comply with Indiana's prepaid funeral and burial service statutes. On Settlers' petition for judicial review, the Marion Superior Court entered summary judgment for Settlers. The Court of Appeals affirmed. State Bd. of Funeral and Cemetery Serv. v. Settlers Life Ins. Co., 5 N.E.3d 1170 (Ind. Ct. App. 2014), vacated. The Supreme Court has granted a petition to transfer the case and has assumed jurisdiction over the appeal.
ILB: This was a March 14, 2014 COA opinion, holding: "The Board argues that Settlers’s product was intended to provide funding for the purchase of funeral services or merchandise, which is the same purpose the products regulated by the Pre-Need Act were intended to fulfill; the Board contends that all lawful funeral trusts must comply with the Pre-Need Act. We find that Settler’s product does not fall within the jurisdiction of the Pre-Need Act. Affirmed."
Next week's oral arguments before the Supreme Court (week of 10/6/14):
- No arguments currently scheduled.
This week's oral arguments before the Court of Appeals (week of 9/29/14):
Tuesday, Sept. 30
- 1:00 PM - Mosley v. State (Case# not provided) Officers acting on an anonymous tip that Jeremiah Mosley was making methamphetamine at his house and children might be present, approached the house on foot and detected a chemical smell they associated with the manufacture of methamphetamine. Mosley first told the officers that no one else was in the house, but when a loud crash came from inside, said it was caused by his wife. Due to the strong chemical odor, the noise and the inconsistent statements, officers entered the house to look for other occupants and saw in plain view items commonly associated with the manufacture of methamphetamine. Officers then obtained a warrant to search the house and during the more extensive search uncovered additional evidence. Mosley was convicted after a jury trial of dealing in methamphetamine, possession of chemical reagents or precursors with intent to manufacture, and possession of methamphetamine. He now appeals his convictions, arguing that: the evidence found inside his home was the product of an unconstitutional search and seizure and should have been excluded; allowing one of the officers to testify that Mosley admitted to previously manufacturing methamphetamine was fundamental error; and allowing evidence of Mosley's failed attempts to buy pseudoephedrine products was an abuse of discretion. The Scheduled Panel Members are: Judges Riley, Bailey and Robb [Where: Michigan City High School, Michigan City, IN]
Wednesday, Oct. 1
- 1:30 PM - Good Earth Natural Foods, et al v. Metropolitan Development Commission, et al (49A04-1403-PL-120) Good Earth Natural Foods and Patrick Skowrenek appeal the dismissal of their complaint for judicial review of a zoning decision made by Metropolitan Development Commission concerning variances sought by Broad Ripple Associates LLC with respect to the potential development of land. At issue are (1) the interpretation of the requirement under I.C. §36-7-4-1613 that, within 30 days of the filing of the complaint, parties must filed the record or seek an extension to do so, and (2) the showing necessary to justify variances from zoning regulation. The Scheduled Panel Members are: Chief Judge Vaidik, Judges Friedlander and May [Where: Court of Appeals Courtroom, Statehouse]
Thursday, Oct. 2
- 1:30 PM - Weedman v. State (90A04-1311-CR-549) Derek Weedman was convicted of aggravated battery after a fight with his stepfather. He argues on appeal: 1) the trial court violated his Fifth Amendment right against self-incrimination by admitting evidence relating to Weedman's withdrawn insanity defense, including testimony of doctors appointed to evaluate him; 2) the prosecutor committed misconduct in commenting on Weedman's post-arrest silence, commenting on Weedman's withdrawn insanity defense, and offering inflammatory opening and closing arguments; and 3) the trial court should not have admitted an EMT's testimony about Weedman's mother's statements and should not have excluded evidence of Weedman's traumatic brain injury four years earlier. The Scheduled Panel Members are: Judges May, Barnes and Crone [Where: Northridge High School, Middlebury, IN]
Next week's oral arguments before the Court of Appeals (week of 10/6/14):
Tuesday, October 7
- 1:00 PM - Wilson v. State (49A02-1401-PC-49) Following a jury trial, Michael Wilson was convicted of murder for the 2007 death of Nupur Srivastava and sentenced to 60 years. Wilson subsequently filed a petition for post-conviction relief alleging his trial counsel’s assistance was ineffective in several respects. The post-conviction court denied Wilson’s petition for relief. Wilson now appeals, contending his trial counsel’s errors, both individually and cumulatively, constituted deficient performance that prejudiced him. The Scheduled Panel Members are: Judges Baker, Kirsch and Robb. [Where:Frankfort High School, Frankfort, IN]
ONLY those Court of Appeals oral arguments presented in the Supreme or Court of Appeals Courtrooms will be accessible via videocast. [Note: This may be changing...]
The past COA webcasts which have been webcast are accessible here.
NOTE: For a printable version of this list of upcoming oral arguments, click on the date in the next line. Then select "Print" from your browser.
Sunday, September 28, 2014
Indiana Courts - More on "Electoral Chaos in Wisconsin"; 7th Circuit denies en banc review of Sept. 12th ruling
Updating this ILB post from Sept. 16th, re the 7th Circuit decision issued Sept. 12th (only hours after oral argument) in the Wisconsin voter ID case, Frank v. Walker, the Milwaukee Journal-Sentinel reported Friday (Sept. 26th) in a story by Jason Stein headed "Bid to get full Appeals Court hearing on voter ID falls 1 vote short" that is particularly strong in breaking down the judicial voting. From the long story:
Madison — Opponents of Wisconsin's voter ID law fell just short Friday of getting a full federal appeals court to reconsider their recent loss in the case before a panel of judges.
On Sept. 12, a three-judge panel of the 7th Circuit U.S. Court of Appeals in Chicago ruled that Wisconsin could implement the law for the Nov. 4 election. The law requires voters to show a photo ID in order to vote.
Those suing over the law asked the full 10-member court to reverse that decision and came just one vote shy of getting the full 7th Circuit to hold a hearing on the case. The members of the court split 5-5 on whether to hold the hearing, which means that the request did not get a majority of votes and failed as a result.
"In the coming days, members of the court may file opinions explaining their votes," the order from the 7th Circuit reads.
Friday's order marked only the latest in a series of legal hurdles cleared — though at times narrowly — by the state's voter ID law. The law was also upheld by the Wisconsin Supreme Court in a pair of rulings last month.
There is a chance that the U.S. Supreme Court could yet consider the matter.
The five 7th Circuit judges who voted to rehear the case included two judges appointed by Republicans and three appointed by Democrats. They were: Diane P. Wood and Ann Claire Williams, both appointed by President Bill Clinton; Richard A. Posner, appointed by President Ronald Reagan; Ilana Diamond Rovner, appointed by President George H.W. Bush; and David F. Hamilton, appointed by President Barack Obama.
All five who declined to take the case were appointed by Republicans, and three of them sat on the panel that first decided the case. The five were: Joel M. Flaum, Frank H. Easterbrook and Michael S. Kanne, all of whom were appointed by Reagan; and Diane S. Sykes and John Daniel Tinder, who were both appointed by George W. Bush.
The original panel was made up of Easterbrook, Sykes and Tinder. Sykes formerly served on the Wisconsin Supreme Court.
Courts - Supreme Ambitions: A Novel by David Lat
I finished an advance copy of David Lat's novel, Supreme Ambitions, this weekend. It will appeal to readers of Lat's blog, Above the Law, as well as readers of other law blogs such as How Appealing and SCOTUSblog -- those interested in the inner workings of the federal courts. The nearly 300-page book comes out in early December. I would recommend it particularly to those interested in pursuing federal clerkships.
Friday, September 26, 2014
Ind. Decisions - 7th Circuit decides one today; oral argument was 9/22, just four days ago
In Scott Ian Richardson v. The Koch Law Firm, P.C. (SD Ind., Mangus-Stinson), a 5-page opinion, Judge Easterbrook writes:
Scott Richardson incurred an educational debt in 1988 but did not pay. Indiana University, the creditor, filed suit in May 1998, in state court, and a trial was scheduled for September 7, 2000. Richardson filed a bankruptcy petition on September 1 but did not tell the state court, the University, or The Koch Law Firm, P.C., its coun sel. Nor did he appear for trial. The state judge entered a default judgment, which the Law Firm tried unsuccessfully to collect. Now Richardson says that the Law Firm should pay him for violating two sections of the Fair Debt Collection Practices Act, 15 U.S.C. §§ 1692e, 1692f, by trying to enforce a judgment that had been entered in violation of the automatic stay under the Bankruptcy Code, 11 U.S.C. §362.ILB: I'm told the oral argument is worth a listen, before CJ Wood, and Judges Easterbrook and Sykes.
After learning about the bankruptcy, the Law Firm stopped trying to collect the judgment. The bankruptcy end ed in June 2001, and the Law Firm went back to work, rely ing on 11 U.S.C. §523(a)(8), which makes most educational debts nondischargeable. Richardson filed a second bank ruptcy proceeding in January 2002. It lasted until April 2007. Once again the Law Firm desisted during the bankruptcy’s duration and tried to collect after its end. Those post-2007 efforts form the basis of Richardson’s current claim.
The district court treated this suit as a collateral attack on the state court’s judgment and dismissed it for want of juris diction, invoking the Rooker-‐‑Feldman doctrine. * * *
After the bankruptcy judge’s decision, Indiana University asked the state court to vacate its own judgment. On January 28, 2014, the state court obliged. As a result, the basis for the district court’s dismissal under Rooker-Feldman no longer exists.
Demonstrating appalling judgment, neither side brought this development to our attention, although both sides filed their appellate briefs after the state court vacated its judgment. Because that step affects subject-matter jurisdiction, counsel for both sides—Ruberry, Stalmack & Garvey, LLC, representing the Law Firm, and Richardson, a member of the bar representing himself—had an ethical duty to alert the court. Yet until the judges asked pointed questions at oral argument, neither side was forthcoming. Richardson even professed not to know the status of the state judgment to which he was a party. That assertion is hard to credit, for the state court’s order shows that it was sent to Richardson. But apportioning blame gets us nowhere. What matters now is that the rug has been pulled out from under the district court’s decision. * * *
Richardson did not pay his debt when it was due in 1988 (and still has not done so, although it has not been dis-‐‑ charged); he did not alert the Law Firm (or the state court) to his bankruptcy petition in 2000; he did not appear for trial; he filed a motion to vacate the state judgment and lost be-‐‑ cause he did not show up to argue when it was scheduled for presentation; he did not appeal the bankruptcy court’s decision of August 2013; he did not file a reply brief; he did not tell us about the vacatur of the state court’s judgment. It is hard to see how someone so deficient in the defense of his own interests could be an effective advocate for the interests of clients. And it turns out that he has not been; Indiana has suspended Richardson from practice at least three times. See In re Richardson, 875 N.E.2d 700 (Ind. 2007) (suspension for abandoning clients; recounting earlier discipline); In re Rich ardson, 792 N.E.2d 871 (Ind. 2003) (suspension for lying in discovery, hiding assets, and abuse of legal process). Rich ardson is on notice: misfeasance or nonfeasance in federal litigation will lead to professional discipline. See Fed. R. App. P. 46(c).
The judgment of the district court is modified to be on the merits, rather than for lack of subject-‐‑matter jurisdiction, and as modified is affirmed.
Essential ILB posts: The ILB has selected its "essential posts" from the past two weeks
Today the ILB begins a new feature, which will appear on Friday afternoons either weekly or biweekly in the future - a checklist of ILB posts from the past two weeks you may have missed, or forgotten.
- Fri. Sept. 12 - "State agrees to recognize Whiting same-sex couple's marriage" - two Indiana couples now have had their marriages recognized.
- Mon. Sept. 15 - "More on: NFP Decisions Cannot Be Cited — Or Can They?" - supplementing Prof. Schumm's earlier post on the Supreme Court's rejection of a proposal to permit citation of memorandum decisions for as "persuasive precedent."
- Tue., Sept. 16 - "Still more on: Controversy about Indiana public employee salary databases" - Hoosier State Press Ass'n. commentary on access to county hospital salary information.
- Tues., Sept. 16 - “This is unlike any contempt case I have ever read about or heard about” - Kokomo Perspective quotes Prof. Schumm on contempt case of Greg Goodnight, Mayor of Kokomo.
- Tues., Sept. 16 - "Federal Judge Young reinstates the SSM lawsuit, Love v. Pence" - this is the case J.Young originally dismissed but has now reinstated "because Pence had shown he had power to enforce the ban despite claims that he had no such control."
- Tues., Sept. 16 - "Judge resigns following Call 6 Investigation into wedding business" - Center Township Small Claims Court Judge Michelle Scott resigns after Call 6 Investigator Kara Kenney reports.
- Wed., Sept. 17 - "State files licensing action against four Indiana physicians for violations of abortion record-keeping, advice and consent laws" - mostly violations of paperwork requirements imposed by action of recent General Assemblies.
- Thurs., Sept. 18 - "Purdue student points out what should have been obvious to all" - mandatory 15-credit course load and 4-year graduation requirement unrealistic for many working or married students.
- Fri., Sept. 19 - "Indiana settles DCS adoption suit for $15 million"; What about Domestic violence budget cuts?
- Fri., Sept. 19 - Prof. Schumm commentary: Some Highlights of the Indiana Supreme Court’s 2013-14 Annual Report.
- Fri., Sept. 19 - More on: "State files licensing action against four Indiana physicians for violations of abortion record-keeping, advice and consent laws."
- Sat., Sept. 20 - "ACLU asks for federal recognition of Indiana same-sex marriages" - DOJ recognized Utah and Michigan same-sex marriages almost immediately following district court decisions...
- Sun., Sept. 21 - ILB Legislative Research Shortcuts Updated; More Research Hints (read carefully). - a post worth bookmarking.
- Mon. Sept. 22 - "Stop and seize: Aggressive police take hundreds of millions of dollars from motorists not charged with crimes" - major WAPO investigation.
- Wed., Sept. 24 - More on: "Idea of Indiana paying public defenders stirs debate."
- Wed., Sept. 24 - Ind. Decisions - Supreme Court decides one today, re speedy trial.
- Thurs., Sept. 25 - About the ILB - Another plea for supporters, please read! And then, please act!
- Thurs., Sept. 25 - Prof. Schumm commentary: Huge decision today by Indiana Supreme Court. Re the timely Notice of Appeal.
- Fri., Sept. 26 - "State Supreme Court rules court backlog violated rights" - more on Wednesday's speedy trial decision.
Courts - "Which state has the best chance of making gay marriage the law of the land?"
Supplementing this ILB post from Sept. 23rd, which looked at "Supreme Court: Which case makes the best case for marriage equality?" Dahlia Lithwick and Mark Joseph Stern now have a long story in Slate headed "Gaming the Supreme Court: Which state has the best chance of making gay marriage the law of the land?" After a long intro, the article goes through each state's chances, beginning with the Indiana cases.
Ind. Courts - To what extent may judges and judicial candidates participate in the political activities or campaigns of family members?
The Indiana Commission on Judicial Qualifications has issued an advisory opinion addressing a judicial officer's ethical duties with regard to participating in a family member's campaign for elected office. The Commission has concluded that a judicial officer may take a limited role in a relative's campaign (for example, appearing in promotional materials), but must carefully avoid using the prestige of judicial office to advance the relative's candidacy.
Ind. Decisions - Court of Appeals issues 3 today (and 8 NFP)
For publication opinions today (3):
In City of Plymouth Street Department v. Indiana Utility Regulatory Commission , an 8-page opinion, Judge Crone writes:
The City of Plymouth (“City”) appeals the Indiana Utility Regulatory Commission’s (“Commission”) denial of its motion to dismiss an administrative action against the City stemming from damage it caused to an underground natural gas pipeline. The City claims that the Commission failed to satisfy the statutory and administrative requirements concerning notice of the violation and recommended penalties. Finding the notice to be sufficient, we affirm the Commission’s denial of the motion to dismiss.In Shacare Terry v. Community Health Network, Inc., an 11-page opinion, Judge Robb writes:
Shacare Terry was admitted at Community Hospital (“Community”) while unconscious. During her treatment, it was discovered that Terry was under the influence of a drug and suffered from possible vaginal trauma. The physician performed a medical evaluation but did not complete a rape kit or preserve possible evidence of sexual assault. While treating Terry, staff members of the hospital also made several derogatory statements about her.In In the Matter of the Adoption and Paternity of K.G.B., E.S. v. T.B. and K.B. , a 19-page opinion, Judge Bradford writes:
Terry sued Community for breach of duty and intentional infliction of emotional distress (“IIED”), but the trial court dismissed the case for lack of subject matter jurisdiction. Terry now appeals, raising two issues that we consolidate and restate as one: whether the trial court erred in determining that it lacked subject matter jurisdiction over Terry’s claims because they fall within the terms of the Indiana Medical Malpractice Act (“the Act”) and Terry did not follow the Act’s procedures before filing her claims in the trial court. Concluding that the trial court did not have subject matter jurisdiction over Terry’s breach of duty claim, we affirm that portion of the trial court’s order. Concluding, however, that the trial court had subject matter jurisdiction over Terry’s IIED claim, we reverse that portion of the court’s order and remand.
On August 22, 2012, Appellee-Petitioner K.B. (“Mother”) gave birth to K.G.B. (the “Child”) out-of-wedlock. Paternity of the Child was not established at the time of the Child’s birth. Approximately one year later, Mother consented to the adoption of the Child by Mother’s father, Appellee-Petitioner T.B., so long as Mother retained her maternal rights to the Child. Soon thereafter, T.B. filed a petition seeking to adopt the Child. A search of Indiana’s Putative Father Registry (the “Registry”) did not reveal any registered putative fathers of the Child or indication that paternity of the Child had been established. Approximately one-and-one-half months after T.B. filed the adoption petition, Appellant-Respondent E.S. (“Putative Father”) filed a petition seeking to establish paternity of the Child (“paternity petition”) and a motion to contest the adoption of the Child by T.B. (“motion contesting the adoption”). In contesting the adoption, Putative Father acknowledged that he had failed to timely register with the Registry.NFP civil opinions today (0):
After Putative Father filed his paternity petition and motion contesting the adoption, T.B. filed a motion to strike Putative Father’s motion contesting the adoption. Mother requested that the adoption and paternity cases be consolidated, a request which was subsequently granted by the trial court. Mother also filed a motion to dismiss Putative Father’s paternity petition. Following a hearing on T.B.’s and Mother’s (collectively, “the Appellees”) pending motions, the trial court granted T.B.’s motion to strike Putative Father’s motion contesting the adoption and Mother’s motion to dismiss Putative Father’s paternity petition. Putative Father argues on appeal that the trial court erroneously granted these motions.
Upon review, we conclude that pursuant to Indiana Code chapter 31-19-5, which relates to a putative father’s rights and obligations regarding the Registry, Putative Father was not entitled to notice of the adoption proceedings because he failed to timely register with the Registry, and his failure to timely register amounted to an irrevocably implied consent to the Child’s adoption. We further conclude that because Putative Father has impliedly consented to the adoption of the Child, he is also barred from establishing paternity of the Child. Accordingly, we affirm the judgment of the trial court and remand the matter for any additional necessary proceedings relating to T.B.’s adoption of the Child.
NFP criminal opinions today (8):
Ind. Decision - "State Supreme Court rules court backlog violated rights"
Re Wednesday's speedy trial decision by the Indiana Supreme Court, Scott Logan v. State of Indiana (ILB sumary here), Madeline Buckley of the South Bend Tribune reported yesterday evening in a long story:
The Indiana Supreme Court called an Elkhart defendant's almost 1,300-day wait to face trial "considerable, unfortunate and inexcusable," and the unanimous decision urged trial judges around the state to deviate from normal practice when necessary to ensure court congestion does not cause undue delay.
The court on Wednesday vacated a child molesting conviction for Scott Logan. The 43-year-old man was accused of the Class C felony in July 2009, but didn't go to trial until February 2013. A judge sentenced him to six years in prison.
The decision indicates waits for trial due to court congestion must be within the realm of reason, but prosecutors say it's still unclear what is reasonable.
Elkhart Superior Court Judge George Biddlecome heard Logan's case. The judge rescheduled the man's trial multiple times through the years because of his full court docket.
Logan's appeal posed questions about managing a crowded docket while ensuring the right to a speedy trial.
"Certainly what the Supreme Court is trying to convey is that trial courts have the responsibility — even though (state law) allows for a congested calendar exception — to bring a defendant to trial within a reasonable amount of time," said John Kindley, Logan's defense attorney.
The Supreme Court opinion, authored by Justice Steven H. David, notes that only 12 percent of the 1,300 days that spanned the wait for trial were due to Logan asking for more time to prepare a defense.
An Indiana law, called criminal rule 4, says prosecutors must bring a defendant to trial within a year of filing charges, except in cases of court congestion and when the defendant asks for more time.
The decision found that the trial court was in compliance with that state law, but the Supreme Court ruled more broadly that Logan's constitutional rights were violated.
"We are not suggesting, nor implying, that our trial judges must do the impossible," the opinion reads. "We are simply reiterating that they are the gatekeepers of justice."
The Supreme Court recommended judges go outside regular practice when court congestion jeopardizes a speedy trial. For example, the opinion read, judges could delegate tasks to magistrates, delay civil trials and start criminal trials mid-week, rather than the usual Monday.
Though the court offered suggestions, Elkhart County Prosecutor Curtis Hill said prosecutors and judges have to adjudicate cases with shared and sometimes limited court time.
"The decision suggests courts have further responsibility to make adjustments beyond criminal rule 4," Elkhart County Prosecutor Curtis Hill said. "That makes it a bit tricky exactly what the courts are supposed to do in that situation." * * *
The Supreme Court decision noted Logan almost served the length of his six-year sentence — including Indiana's day-for-day credit — before his trial began.
"To hold someone in jail for that amount of time to where he was basically held in jail well above what the advisory sentence was, there is a real risk there could be tremendous pressure to plead guilty," Kindley said. "Otherwise they could be sitting in jail for who knows how long."
Ind. Decisions - 7th Circuit non-Indiana cases yesterday about panhandling, PCB contamination
In Norton v. City of Springfield, Ill. (CD Ill.), a 20-page, 2-1 opinion, Judge Easterbrook writes:
The City of Springfield has an ordinance (§131.06 of the Municipal Code) that prohibits panhandling in its “downtown historic district”—less than 2% of the City’s area but containing its principal shopping, entertainment, and governmental areas, including the Statehouse and many state-government buildings. The ordinance defines panhandling as an oral request for an immediate donation of money. Signs requesting money are allowed; so are oral pleas to send money later. Springfield evidently views signs and requests for deferred donations as less impositional than oral requests for money immediately, which some persons (especially at night or when no one else is nearby) may find threatening. Plaintiffs have received citations for violating this ordinance and allege that they will continue panhandling but fear liability; this gives them standing to contest the ordinance’s constitutional validity. See Susan B. Anthony List v. Driehaus, 134 S. Ct. 2334 (2014). * * *In NCR Corp. v. Whiting Paper (ED Wis.), a 57-page opinion involving many parties, Chief Judge Wood's opinion begins and ends:
The disagreement within the Court in McCullen about how to distinguish a content-based from a content-neutral law (four Justices thought that law to have been contentbased)— and the conflict among the circuits about panhandling ordinances—shows that it is difficult to be confident about how the line between subject-matter (usually allowed) and content-based (usually forbidden) distinctions is drawn. We do not profess certainty about our conclusion that the ordinance is content-neutral. But this was Justice Kennedy’s understanding in Lee. Evaluated by the standard for time, place, and manner restrictions Springfield’s ordinance is within the power of state and local government. AFFIRMED
MANION, Circuit Judge, dissenting. [beginning on p. 9]
Today the court holds that a panhandler who asks a passerby for money in the downtown historic district of the City of Springfield commits a crime and may face criminal prosecution for this simple request. This conclusion is alien to our First Amendment jurisprudence. Accordingly, I do not join the opinion of the court because the City of Springfield’s panhandling ordinance is a content-based regulation of speech, subject to strict scrutiny. By concluding that the ordinance is content-neutral, the court misapplies the Supreme Court’s content-based regulation jurisprudence. Consequently, I respectfully dissent.
The invention of carbonless copy pa-per by NCR Corporation in the mid-1950s solved a small problem and created a large one. Though it alleviated the messy side effects of carbon paper for those who wanted copies in the pre-photocopy era, over the next quarter-century it became clear that the cost of this convenience was large-scale environmental contamination. That is because, until the early 1970s, the substance coating the paper includ-ed polychlorinated biphenyls (PCBs), a highly toxic pollutant. In the course of producing the carbonless paper, large quantities of PCBs were dumped into the Lower Fox River in Wisconsin, the site of the paper’s production. (References to the River in this opinion mean the Lower Fox, unless the context requires otherwise.) Recyclers poured yet more PCBs into the River. In time, the problem attracted the attention of the federal government, which, invoking the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) (popularly known as the Superfund), eventually ordered the responsible parties to clean up the mess. See 42 U.S.C. § 9601 et seq. This case requires us to decide who should foot the considerable bill.In a related case today, U.S. v. NCR Corp. (ED Wis.), a 38-page pinion, Judge Tinder begins:
Once the Environmental Protection Agency (EPA) identi-fies the site of an environmental hazard that requires reme-diation under CERCLA, the statute’s financial responsibility rules are triggered. CERCLA imposes a “pay-first, split-the-bill-later” regime. Any individual persons or corporations meeting certain statutory criteria can be required to pay for the cleanup. Anyone who paid can then recover contribution from other responsible parties in accordance with that enti-ty’s equitable share of the costs.
NCR was the exclusive manufacturer and seller of the emulsion that gave treated paper its “carbonless-copy” char-acter during what the parties call the Production Period (1954 to 1971). That emulsion, unfortunately, used Aroclor 1242 as a solvent, and Aroclor 1242 is a PCB. Given its role in the pollution, NCR has thus far picked up the lion’s share of the cleanup tab for the River site. In this action it seeks contribution from several other paper mills along the river. Those firms were in the recycling business; they bought NCR’s leftover scraps of carbonless copy paper, washed the harmful chemicals off into the River, and recycled the pulp to make new paper. Several ancillary questions and counter-claims were raised along with NCR’s contribution claim, and we will address each in turn. The main event, though, relates to the equitable allocation of costs.
The district court, after holding a first phase of discovery on the question of when each party became aware that the primary chemical ingredient of carbonless copy paper was harmful, held that NCR was not entitled to any equitable contribution from the paper mills. Worse than that, from NCR’s vantage point, the court held that the mills had meri-torious counterclaims for cost recovery from NCR. NCR ap-peals that decision, and the defendant recyclers cross-appeal a handful of matters decided against them. Before addressing these matters, we begin with some background about the cleanup effort. * * *
X. Conclusion. We REVERSE the district court’s judgment with regard to Appvion’s ability to bring suit under CERCLA § 107(a). We VACATE the decision to hold NCR responsible for all of the response costs at operable units 2 through 5 in contribution. We AFFIRM the following decisions: that NCR may proceed only under CERCLA § 113(f); that NCR is not liable as an arranger; that Glatfelter’s insurance settlement may not be offset against NCR’s contribution share; that NCR can be required to contribute for natural resource damages; that Glat-felter’s counterclaim based on the discharges at Portage should be dismissed; and that the defendants’ state-law counterclaims are preempted. This case is REMANDED for proceedings consistent with this opinion.
Today we issue two decisions related to the cleanup of the Lower Fox River and Green Bay Superfund Site in northeastern Wisconsin. This decision addresses a claim brought by the United States to enforce a 2007 unilateral administrative order issued by the Environmental Protection Agency (EPA) under § 106 of the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (CERCLA), 42 U.S.C. § 9606. EPA’s 2007 order directs several potentially responsible parties (PRPs) to clean up the portion of the Site downstream of Little Lake Butte des Morts.
Thursday, September 25, 2014
Ind. Decisions - Huge decision today by Indiana Supreme Court
Commentary by Joel Schumm, professor at Indiana University's Robert H. McKinney School of Law
The Indiana Supreme Court’s opinion today in In re Adoption of O.R. is, in a word, HUGE. Like telling a child there is no Santa Claus, Justice Rucker’s opinion shattered lawyers’ longstanding belief that a timely Notice of Appeal was some magical document without which their right to appeal was impossibly doomed. (It remains magical in federal court, for reasons explained in the endnote.*)
Does this mean the floodgates of appeals will open, and the Indiana Court of Appeals will be inundated with hundreds of late appeals? Not at all. Today’s opinion merely concludes, quite correctly, that Appellate Rule 9 allows for forfeiture of an appeal when the Notice of Appeal is not timely filed. But, “although a party forfeits its right to appeal based on an untimely filing of the Notice of Appeal, this untimely filing is not a jurisdictional defect depriving the appellate courts of authority to entertain the appeal.”
Many who seek to file a late Notice of Appeal will not be able to make the required showing of “extraordinarily compelling reasons why this forfeited right should be restored.” But they should not, as they have in the past, face a summary dismissal of their appeal. Instead, parties will need to argue “extraordinarily compelling reasons,” which the Court of Appeals must consider in deciding whether to dismiss an appeal.
Post-Conviction Rule 2 currently provides appellants in criminal direct appeals an exception to the forfeiture mentioned in Appellate Rule 9. It does not extend to post-conviction relief, probation revocation, termination of parental rights, and other cases that involve significant liberty interests and constitutional rights. Earlier this year, a panel of the Court of Appeals wrote in a footnote in a termination of parental rights’ case:
Given the constitutional rights implicated in these proceedings, we urge our supreme court to consider allowing belated appeals in cases where the parent’s parental rights have been terminated. As our courts have often stated: “The traditional right of parents to establish a home and raise their children is protected by the Fourteenth Amendment of the United States Constitution.” In re M.B., 666 N.E.2d 73, 76 (Ind. Ct. App. 1996), trans. denied. However, a trial court must subordinate the interests of the parents to those of the child when evaluating the circumstances surrounding a termination. In the Matter of Termination of the Parent Child Relationship of K.S., 750 N.E.2d 832, 837 (Ind. Ct. App. 2001).Broadening Rule PC-2 to apply to cases that involve significant constitutional rights and State action would be an effective, long term solution. That rule provides a process through which trial courts consider motions to file belated notices of appeal and requires litigants to demonstrate diligence in pursuing an appeal and that the late notice was not their personal fault. Without a rule amendment, late notices of appeal will presumably be filed with the Court of Appeals—not the trial court—which will be required to apply Appellate Rule 1 in searching for “extraordinarily compelling reasons” to restore the right to appeal.
* In federal court “[j]urisdictional treatment of statutory time limits makes good sense. . . . Because Congress decides whether federal courts can hear cases at all, it can also determine when, and under what conditions, federal courts can hear them.” Bowles v. Russell, 551 U.S. 205, 212-13 (2007).
About the ILB - Another plea for supporters, please read! And then, please act!
Below is the ILB's December plea for supporters, reposted in March and again on July 10th of this year. The results so far? Discouraging. No additional major supporters. Thanks, however, to several of you who have sent anonymous one-time gifts. And luckily for all readers, the ILB still has the stalwarts listed below. Without their support, there would be no ILB.
I believe the ILB has made a significant impact in its nearly 11 years of existence. The ILB operates on a shoestring, and needs more supporters, including major (front page) supporters (who would likely be organizations, bar sections, law firms, or those who do business with law firms).
You are able to read the ILB because of, and thanks to, these major supporters:
- Fillenwarth Dennerline Groth & Towe, LLP (Indianapolis - Labor, Employment & Election Law)
- Langer & Langer (Valparaiso, P.I./Medical Malpractice/Family Law)
- Wieneke Law Office, LLC (Central Indiana - Litigation / Appeals / P.C.R.'s)
- Gary P. Price (Indianapolis, Litigation & Arbitration)
- Greg Bowes Legal Services, P.C. - Appeals, General Litigation
Plus me. As is obvious if you are a reader, I contribute the major part of each day to the ILB. As I am semi-retired and far from independently wealthy, in order to keep this up, the ILB needs more supporters, particularly major (front page) supporters.
- If your firm or organization would like to be listed on the front page (top right) of the Indiana Law Blog, alongside the ISBA, Doxpop, and the ISBA Litigation section, the $$ requirements are listed on the bottom of the supporter agreement.
- It is easy to become an annual ILB supporter and be listed here. Simply fill out this supporter agreement and mail it to the ILB, along with your check. You may elect to pay quarterly or annually. You will be listed here along with a link to your website, if you so elect.
- If you'd prefer to send an anonymous individual donation (i.e. not be identified on the ILB) from time to time, rather than making an annual commitment? A handful of you already have done that, and I really appreciate the support. Simply make your check out to Environmental Information Solutions and mail it to 1319 N. Alabama St., Indianapolis 46202-2523. [Sorry, we are not 501(c)(3)]. Include your email address if you'd like an acknowledgment of receipt and a thanks. Many thanks to those of you who have elected to send the ILB a donation in this way. No amount is too small, or of course, too large.
Ind. Decisions - Court of Appeals issues 1 today (and 9 NFP)
For publication opinions today (1):
In Averitt Express, Inc. v. State of Indiana ex rel. Indiana Department of Transportation, an 18-page decision with a concurring opinion, Sr. Judge Barteau writes:
Averitt Express, Inc., appeals the trial court’s denial of its motion for summary judgment and grant of summary judgment in favor of the State of Indiana, acting on behalf of the Indiana Department of Transportation (INDOT). We affirm in part, reverse in part, and remand. * * *NFP civil opinions today (3):
The trial court properly denied Averitt’s motion for summary judgment. However, although the State was legally authorized to file suit for damage to its property, a dispute of material fact precludes the entry of summary judgment for the State. For the reasons stated above, we affirm the judgment of the trial court in part, reverse in part, and remand for further proceedings.
NAJAM, J., concurs.
BRADFORD, J., concurs with separate opinion. [which begins, on p. 15] While I concur with the disposition of the issues in all respects, I write separately to share some thoughts on both the admissibility of police-prepared accident reports and paragraph six of Trooper Mullen’s affidavit.
NFP criminal opinions today (6):
Ind. Decisions - Supreme Court decides one today, re consent to adoption and re an untimely filing of a notice of appeal
In In the Matter of the Adoption of O.R., N.R. v. K.G. and C.G., a 13-page, 5-0 opinion, Justice Rucker writes:
The biological parent of a minor child attempted to appeal the trial court’s order granting an adoption petition in favor of third parties. Because the Notice of Appeal was not timely filed, the Court of Appeals dismissed the case on grounds that it lacked jurisdiction to hear the appeal. Although we affirm the trial court’s judgment, we conclude the untimely filing of a Notice of Appeal is not a jurisdictional bar precluding appellate review. * * *
The deadline for filing a Notice of Appeal from the trial court’s order was June 10, 2013. Asserting that he was acting on the advice of his trial counsel, Father wrote a letter to the trial court clerk which the clerk filed on June 6, 2013 requesting appointment of appellate counsel “for the purpose of appealing the decision rendered” by the trial court. Father’s trial counsel did not file a Notice of Appeal but on June 19, 2013, nine days after the Notice of Appeal was due, counsel filed a motion to withdraw. The trial court granted the motion on July 1 and on July 3—twenty-three days after the deadline to appeal had passed—entered an order appointing appellate counsel for Father. Fifteen days later, on July 18, Father’s new counsel filed in the Court of Appeals a petition to accept “Amended Notice of Appeal,” which was tendered with the petition. Counsel argued that Father’s June 6 pro se letter to the trial court clerk should be deemed a timely filed Notice of Appeal in substantial compliance with the appellate rules. On August 16, the motions panel of the Court of Appeals granted Father’s petition to accept his Amended Notice of Appeal.
After the issues were fully briefed on the merits, in a memorandum decision, the writing panel of the Court of Appeals sua sponte dismissed Father’s appeal on grounds that it lacked subject matter jurisdiction because Father did not timely file a Notice of Appeal. See In re Adoption of O.R. [NFP], No. 21A01-1307-AD-322 (Ind. Ct. App. Feb. 28, 2014). We now grant Father’s petition to transfer thereby vacating the Court of Appeals’ dismissal of Father’s appeal. In this opinion we explore the question of appellate jurisdiction to entertain this appeal, and address the merits of Father’s claims. In doing so, we affirm the judgment of the trial court. Additional facts are provided below as necessary. * * *
The untimely filing of a Notice of Appeal is not a jurisdictional defect depriving the appellate courts of the ability to entertain an appeal. Instead, the timely filing of a Notice of Appeal is jurisdictional only in the sense that it is a Rule-required prerequisite to the initiation of an appeal in the Court of Appeals. Timely filing relates neither to the merits of the controversy nor to the competence of the courts on appeal to resolve the controversy. * * *
Here, in light of Appellate Rule 1, Father’s attempt to perfect a timely appeal, and the constitutional dimensions of the parent-child relationship, we conclude that Father’s otherwise forfeited appeal deserves a determination on the merits. * * *
In sum not only does the record support the trial court’s conclusion that Father’s consent to the adoption of O.R. was not required, but the record also supports the trial court’s conclusion that the Adoptive Parents’ adoption of O.R. is in the child’s best interest. We find no error in this regard.
Conclusion. We affirm the judgment of the trial court.
Ind. Courts - Muncie City Court Judge involved in domestic dispute
The story is in the Muncie Star-Press, reported by Douglas Walker and Keith Roysdon.
Interestingly, it appears that each side was video-recording the other.
Law - Prior restraint issues in Alabama; Indiana had its own recent incident
The Volokh Conspiracy has a post this morning headed "Alabama trial judge reverses course, vacates restraining order against publishing gas company information." The post quotes some background:
Alabama Gas Corporation filed a temporary restraining order last week to prevent the Montgomery Advertiser from releasing information in a safety document the newspaper obtained from the Alabama Public Service Commission in June.The ILB is reminded that Indiana had its own prior restraint case. Start with this March 10th, 2012 post headed "South Bend Tribune required to remove published story that was based on DCS records released by trial court order." A sample:
Here is the 2-page Order issued by Chief Judge Robb of the Indiana Court of Appeals yesterday. The operative language:See also this March 14, 2012 ILB post quoting the Fort Wayne Journal Gazette editorial recapping the events, headed “Prior restraint of the news media publishing public records is inconsistent with the First Amendment."Appellant's Verified Emergency Motion to Stay Order Granting Access to Public Records is GRANTED pending further order of this Court. The March 6, 2012 Order Granting Access to Public Records issued by the Honorable Peter J. Nemeth, Judge of the St. Joseph Probate Court, is HEREBY STAYED pending further order of this Court.
Ind. Gov't. - "DCS employees sue agency over claims of unpaid overtime" [Corrected]
From Marisa Kwiatkowski's just-posted story for the Indianapolis Star:
Two Indiana Department of Child Services employees paint a dismal picture of life as an investigator for the state agency.ILB: The case is Nunez et al v. Indiana Department of Child Services (2:14-cv-00293-JD-JEM), filed Aug. 20, 2014, before Judge DeGuilio. Here is the 7-page complaint.
In federal court records filed last month, Arlene Nunez and Veronica Martinez claim they are forced to work during their lunch hours, rarely get five hours of continuous sleep during on-call shifts and spend extensive time outside of regular work hours responding to emergencies, conducting investigations and writing reports — all without receiving earned overtime pay.
Nunez and Martinez filed a lawsuit against DCS in federal court in Hammond, claiming the state agency violated the Fair Labor Standards Act by denying them and other employees payment for overtime they have worked.
Nunez and Martinez also said their employer deducted time from weeks when they had worked more than 40 hours and shifted it to weeks they had worked less in order to avoid paying overtime, court records state.
Nunez and Martinez said they complained about working during their lunch breaks, but their supervisors responded, “Don’t even bring it up,” according to the lawsuit.
Both women work as family case managers out of the agency’s Lake County office. Nunez has worked for the state for more than 14 years, and Martinez for 36 years, state records show.
“Just because DCS is a state agency doesn’t exempt it from having to meet the requirements of the Fair Labor Standards Act,” said Nunez’s and Martinez’s attorney Adam Sedia, of the Dyer-based firm Rubino, Ruman, Crosmer and Polen. “We’re holding DCS to the same standard as any other employer.”
[Updated at 10:35 AM] A reader points to an error in an Indianapolis Star paragraph not quoted above - the story should read "class action", NOT "collective action"!:
Nunez and Martinez are asking the federal court judge to certify the lawsuit as a collective action, which means DCS would be required to release the names and contact information of similarly situated employees. Those employees could then opt to join the lawsuit, Sedia said.
[Corrected at 3:40 PM] Apologies to the IndyStar. The ILB has now heard from the attorney in the DCS lawsuit, who writes:
I am the attorney representing the plaintiffs in the story you covered in this post.
The reader who claimed to find an error in the story is not correct. We are seeking certification as a collective action under 29 U.S.C. § 216, which is completely different from a class action under FRCP 23. A collective action is “opt-in,” whereas a class action is “opt-out.”
I ask that you please note the correction. I am happy to answer any questions you might have.
Adam J. Sedia
Rubino, Ruman, Crosmer & Polen
Dyer, Indiana 46311
Ind. Courts - Chief Justice Rush: "Be proactive to aid youths"
A story today by Dartunorro Clark in the Lafayette Journal-Courier reports on the CJ's talk Wednesday to the YWCA Greater Lafayette's fall luncheon. Some quotes:
More than 150 community leaders gathered to hear Rush, the first female chief justice of the Indiana Supreme Court, discuss children, teenagers and issues that she's long championed, including mortality, abuse and high school dropout rates.
There's much more to be done, she said.
"We need to put our resources toward our kids," Rush said. "It defines how we're doing as a society. I'm doing that at the state level."
Her experience as a juvenile judge gave her insight, she said, into what the judiciary can do to work with other branches of government to provide solutions.
Rush said she's pushing for more evidence-based decision-making in courtrooms, tracking the outcomes of programs that help at-risk children and families and seeking to improve trauma care.
"It's important to look at community involvement and the well being of the youth," Rush said. "There's a connection between community involvement and (the number of) children in the courts."
Rush added: "We cannot just be reactive to these things. We can be proactive."
Wednesday, September 24, 2014
Ind. Gov't. - Citizens Energy makes minor adjustments to some top salaries
In this ILB post on August 19th, the ILB talked about the IndyStar's Public Employee Salary Database and how almost all of the 170 highest paid "local government" employees are employees of Citizens Energy:
The Indianapolis Star database is based on the "Certified Report of Names, Addresses, Duties and Compensation of Public Employees (Form 100R) [which] provides taxpayers with compensation information for public employees of state government, state universities, state boards and commissions, and all local units of government." It is a product of the "Certified Report of Names, Addresses, Duties and Compensation of Public Employees (Form 100R) [,which] provides taxpayers with compensation information for public employees of state government, state universities, state boards and commissions, and all local units of government."Today John Tuohy and John Russell of the Indianapolis Star report (in a story that repeats itself a bit, don't they have proofreaders - oh, right, they don't anymore):
But the results of a Star database search today for the 20 highest-paid Indiana public employees show only university and Citizens Energy officials. Interestingly, the county hospital names no longer show up ...
Something else interesting: If you filter the Star database for "local government," and start with highest paid, it is not until the 6th screen of 10 names each that you find anyone other than Citizens Energy: #56 highest paid is Riggs, David T., Marion County Director of Public Safety. If you continue clicking, Citizens Energy names predominate screen after screen, until the 17th screen, where the annual salaries have fallen into the $105,000 range.
The Citizens Energy board of directors announced Wednesday it will slash the salary of its president by nearly a third until he retires next summer.ILB: Judging from the database results discussed earlier, however, 6-12% cuts for the top 17 executives is just chipping at the tip of the iceberg.
President and Chief Executive Officer Carey Lykins will step down July 1, 2015, after 42 years with the utility company. He will be replaced by Jeff Harrison, the senior vice president of engineering sustainability.
Lykins' annual $1.9 million salary will be cut 32 percent, or by $608,000, until he leaves. The wages of 17 other executives will be reduced by 6 percent to 12 percent, said Dan Considine, a spokesman for the utility. * * *
Earlier this year, the Indiana Utility Regulatory Commission reduced the size of a customer rate increase because it said Citizens Energy's executives' salaries were excessive. The utility's request for a 14.7 percent rate hike was chopped to 9 percent for 300,000 water customers.
[More] Here is a quote from Jeff Newman in the IBJ's story today:
State regulators scolded Citizens earlier this year for the high level of executive pay at the municipal utility. Utility watchdogs have criticized the compensation for being inappropriate for a not-for-profit charitable trust.
Law - How Appealing and Above the Law blogs to team up (or ATL offers How Appealing a new home)
Two of the leading national law blogs, How Appealing and Above the Law, will be located at http://howappealing.abovethelaw.com starting October 1st. As Howard Bashman writes today:
This blog's content, voice, and authorship will remain the same, except in place of "Law.com" in its address you will instead need to use "AboveTheLaw.com"More from Bashman:
One of the things that I have most appreciated about this blog's current host, ALM/Law.com, and this blog's previous host, Legal Affairs magazine, is that they have completely left me alone to do what I enjoy doing. I have received more requests from the U.S. Supreme Court (a total of one) than I have ever received from ALM/Law.com or Legal Affairs magazine to alter this blog's content in any respect whatsoever. And I anticipate this same sort of hands-off approach will continue during this blog's upcoming affiliation with ATL and Breaking Media.
Ind. Decisions - Supreme Court decides one today, re speedy trial
In Scott Logan v. State of Indiana, an 18-page decision, Justice David writes [ILB emphasis]:
“To no one will we sell, to no one deny or delay right or justice.” MAGNA CARTA, § XXIX. First articulated in the Magna Carta, the right to a speedy trial is fundamental in our jurisprudence. Klopfer v. North Carolina, 386 U.S. 213, 223 (1967). Together with Indiana Criminal Rule 4(C), the right to a speedy trial, as guaranteed by the United States and Indiana Constitutions, ensures those accused of criminal charges speedy administration of justice. In this case, appellant Scott Logan challenges the 1,291-day delay that elapsed between the State’s filing of a class C felony child molestation charge against him and the beginning of his trial as a violation of both Rule 4(C) and his constitutional right to a speedy trial. Ultimately, Logan was convicted and sentenced to six years executed—a sentence that, when his earned good-time credit is considered, Logan essentially served before his trial even began.ILB: The now vacated Feb. 28, 2014 NFP Court of Appeals opinion concluded: "[T]he trial court did not err in denying Logan’s motion for discharge under Crim. R. 4(C), and Logan has failed to demonstrate that the delays in his trial violated his constitutional right to a speedy trial." This May 22nd ILB entry quotes a SBT story asking "Does Court backlog violate right to speedy trial?"
Though Rule 4(C) implements a defendant’s right to a speedy trial, our analysis of an alleged Rule 4(C) violation is distinct from that of a claimed constitutional violation, as both constitutions provide a defendant with broader protection of this fundamental right. Illustrating why Indiana affords defendants dual means of securing a speedy trial, here we conclude that despite the trial court’s technical compliance with Rule 4(C), Logan’s unduly long delay violated his constitutional right to a speedy trial. * * *
On appeal, Logan maintained that he was entitled to discharge under Rule 4(C) and that he was deprived of his right to a speedy trial under the Sixth Amendment to the United States Constitution and Article 1, Section 12 of the Indiana Constitution. Finding that the trial court did not err in denying Logan’s motion for discharge under Rule 4(C) and that Logan failed to demonstrate that the delays in his trial violated his constitutional right to a speedy trial, the Court of Appeals affirmed his sentence. Logan v. State, No. 20A05-1304-CR-192, Slip. op. at *10 (Ind. Ct. App. February 28, 2014).
Logan subsequently petitioned this Court to address both issues. We granted transfer, thereby vacating the opinion below. See Ind. Appellate Rule 58(A). * * *
All four Barker factors weigh in Logan’s favor and compel the conclusion that the delay of three years, six months, and eleven days between the filing of the charge against him and the beginning of his trial for class C felony child molestation violated his right to a speedy trial under the U.S. and the Indiana Constitutions. Specifically guaranteed in both constitutions, the right to a speedy trial is a fundamental right of the accused that trial courts must be diligent in protecting and defendants zealous in asserting. Id. at 533. When, on balance, the length of the defendant’s wait for trial, the reasons behind the delay, the defendant’s assertion of his or her right, and the presence of prejudice to the defendant as a result of the delay show that the trial court has not assiduously safeguarded the defendant’s right to a speedy trial, then the defendant must not face the charges filed against him or her.
To prevent the potential for any subsequent violation of a defendant’s constitutional right to a speedy trial due to protracted court congestion, we encourage trial courts to consider setting the defendant’s trial date at his or her first initial hearing and to remain diligent in monitoring the age of these cases. We acknowledge that the State has a vested interest, and indeed an obligation, in monitoring criminal cases to ensure that defendants are brought to justice in a timely manner.
In this particular case, the record reflects that jury trials were scheduled on an average of twenty to twenty-four dates each year. Considering the trial court’s limited availability and Logan’s repeated assertion of his right, we urge trial judges facing similar circumstances to consider, when they deem it necessary, going outside their standard practice in establishing jury trial dates to ensure that a defendant’s right to a speedy trial is guaranteed. For example, a trial judge could move a previously set civil trial in favor of a criminal defendant, start a criminal trial on a different day of the week (say, a Wednesday instead of the typical Monday), or delegate certain tasks to a magistrate in order to free up resources to try the defendant.
We are not suggesting, nor implying, that our trial judges must do the impossible. We are simply reiterating that they are the gatekeepers of justice. Our trial courts must continue to be diligent, adaptable, and creative in an effort to secure a criminal defendant’s fundamental right to a speedy trial.
Conclusion. We therefore order Logan released from incarceration, vacate his conviction for class C felony child molestation, and remand to the trial court for proceedings consistent with this opinion.
Here is the June 26, 2014 oral argument before the Supreme Court.
Ind. Gov't. - "Indiana pension fund assets grow to record high"
An AP story today in the Gary Post-Tribune begins:
Indiana’s pension fund for public employees and teachers has grown to a record high of $30.2 billion in assets thanks to “a great year” of returns on its investments, the fund’s leader says.
The pension fund’s investment return for the 2014 budget year that ended June 30 was 13.7 percent — or more than double the 6.75 percent target, said Steve Russo, the executive director of the Indiana Public Retirement System.
“It was a very good, and some might say, a great year,” Russo told the Legislature’s Pension Management Oversight Committee last week.
With its 11 percent growth in net assets over 2013, the fund’s growth in net assets means the combined funded status of Indiana’s seven pre-paid pension programs for state and local public employees and teachers now stands at 88.9 percent, up from 85.3 percent.
Pension experts generally consider a funding ratio of at least 80 percent satisfactory to meet future payment obligations.
Ind. Courts - More on: "Idea of Indiana paying public defenders stirs debate"
Updating this post from earlier today, the ILB has found an expanded version of the AP public defender story, along with attribution; it was written by Charles D. Wilson. We still don't know, however what "legislative committee meeting Monday" the "idea surfaced at." Some quotes:
INDIANAPOLIS (AP) — The state pays the salaries of its judges and prosecutors, but public defenders are paid by counties that are only partially reimbursed for their costs — an approach that some including the executive director of the Indiana Public Defender Council want to see changed.More from the story:
Larry Landis said it’s time to pay public defenders, who represent people who can’t afford attorneys, the same way as prosecutors because the current pay system is unfair. The idea surfaced at a legislative committee meeting Monday.
“They’ve abdicated their state responsibility,” Landis said. “You’re talking about a constitutionally mandated service where people’s liberties are on the line.”
In Indiana, counties determine how public defenders are paid. Some public defenders work under contract, while others are appointed by judges on a case-by-case basis. There is no statewide system.
Regardless of how they handle paying for indigent defense, the counties that apply get 40 percent of the money they spend on public defenders back from the state. In the last budget, the state set aside $14.8 million to cover public defender costs, and Landis said only 48 counties have set up the local commissions required to receive any of the money.
“If money is tight, which it is, spending money on poor people who are accused of crimes is not going to be a high priority for county funding,” Landis said.
“We do pay a share of that now and the counties pay a share of that,” Kenley said. “This way they have an incentive to keep the cost under control.”
The lack of state salaries is felt on both sides of the courtroom. Other than the elected prosecutor and his chief deputy, the other county prosecutors also are paid by their counties. Low pay leads to high turnover and a lack of experienced attorneys on both sides, said Landis and the executive director of the Indiana Prosecuting Attorneys Council, David Powell.
“Certainly the pay’s too low,” Powell said. “You ought to be able to make a career of that and pay your bills and raise your family.”
Aaron Negangard, prosecutor of Dearborn and Ohio counties in southeastern Indiana, doesn’t believe it’s fair for public defenders to get the same pay as prosecutors. He said they don’t carry the caseloads that prosecutors do and that the burden of proof is on the state, not the defense.
“I’m satisfied with the system the way it is,” said Negangard, who heads the prosecuting attorneys’ lobbying group. “I think the state reimbursement program works well. It keeps the control in the county.”
Ind. Decisions - Court of Appeals issues 1 today (and 6 NFP)
For publication opinions today (1):
In Albert L. Hauck and Mark Wood v. City of Indianapolis, a 17-page opinion regarding the IMPD promotion process, Judge Brown writes:
Albert L. Hauck and Mark Wood appeal the trial court’s order granting summary judgment in favor of the City of Indianapolis (the “City”). Hauck and Wood raise three issues, which we revise and restate as whether the court erred in entering summary judgment in favor of the City and against them. We affirm.NFP civil opinions today (4):
NFP criminal opinions today (2):
Ind. Courts - Former Supreme Court Justice Dixon Prentice honored in Clark County
From a brief WHAS 11 story:
JEFFERSONVILLE, Ind. (WHAS11) -- The life of a former Indiana Supreme Court justice is being remembered in Clark County.
On Tuesday morning judges and lawyers put their political differences aside to honor the work and legacy of Dixon Prentice.
He died over the summer at his home in Arizona. He was 95-years-old. Prentice was originally from Clark County, Ind.
Ind. Courts - The perils of pro se representation?
In a long (and repetitious) story today in the Richmond Palladium-Item, Bill Engle reports:
In his shortest court appearance yet, Preble County [Ohio] resident John Cahill walked out of Wayne Circuit Court in protest over the judge's involvement in his ongoing fight with the city.
Two minutes into Tuesday's hearing, Cahill, the Eaton-area man who has waged a 17-month fight with the city of Richmond over two abandoned houses he refuses to repair or remove walked out of the courtroom and left the Wayne County Courthouse in protest. * * *
In June, Cahill filed an affidavit accusing the judge of bias and prejudice in the case. On Tuesday, Cahill provided the court a copy of Indiana Supreme Court rulings that said that once a judge is accused of bias and prejudice, he no longer has jurisdiction in the case.
The problem for Cahill, said [Judge David Kolger], is that Cahill's appeal must be done in a timely fashion.
"I agree with [city attorney Walt Chidester's] opinion. This case is over," Kolger said.
Cahill, who is representing himself, started the proceedings by addressing Kolger.
"I'm making a special appearance in this case today," Cahill said. "Since you have no jurisdiction in the case and still you continue to officiate, I will not participate in today's hearing." * * *
In June, Cahill filed an affidavit accusing the judge of bias and prejudice in the case. On Tuesday, Cahill provided the court a copy of Indiana Supreme Court rulings that said that once a judge is accused of bias and prejudice, he no longer has jurisdiction in the case.
Ind. Gov't. - "Lost original bond document stalls Portage paving project"
John Robbins of the Gary Post-Tribune reports today:
PORTAGE -- With the whereabouts of a seven-year-old bond document missing, the Portage Board of Works and Safety is facing a roadblock in the paving of a city subdivision. * * *
The bond, a letter of credit that authorizes payments to the city from Porter Bank, was originally issued on Oct. 17, 2005, according to Sandy McDaniel, project manager for the department of Community Development.
After seven years of waiting for the final coat of asphalt to be applied to the streets in Austin Hills, the city has finally lost its patience and wants to pave the streets, but it wants the money first. To get the money though, Porter Bank wants the original bond — a copy won’t do — and the original cannot be found.