Tuesday, July 28, 2015

Ind. Decisions - More on "Lake Michigan lakefront homeowners do not own the beach"

Updating yesterday's post, the ILB has now obtained a copy of the 22-page ruling of Judge Richard R. Stalbrink, Jr., LaPorte Superior Court 2, in Gunderson v. State. Here are some quotes from the opinion:

The Gundersons claim that their deed conveyed complete and exclusive ownership in their lot to the water's edge of Lake Michigan and that the members of the public have no rights to the land not covered by water. The Defendants and Intervemor-Defendants argue that the State owns the land up to the ordinary high water mark ("OHWM") regardless of whether it is covered by water. The Defendants and. Intervemor-Defendants further argue that the State holds this land in trust for the benefit of the public. The parties' arguments draw from and rely on the doctrines of Equal Footing and Public Trust, two very old doctrines with an entwined history. This is a case of first impression in Indiana and as such, this Court looks to Indiana Law, our sister Great Lake States, and other States for guidance. * * *

The Gundersons contend that deeds are prima facia proof of ownership. The Gundersons further contend that, because their deed cites to the Plat, and the Plat states no northerly dimension, their lots run to the water's edge of Lake Michigan. * * *

According to the equal footing doctrine discussed above, Indiana received the lands beneath the OHWM upon becoming a state. See Shively, 152 U.S. at 26 ("The new states admitted into the Union since the adoption of the constitution have the same rights as the original states in the tide waters, and in the lands below the high-water mark, within their respective jurisdicuons (sic)." (emphasis added)).

Thus, this Court finds that when Indiana became a State, it received, and held in trust for the public, all lands below the OHWM regardless of whether the land is temporarily not covered by water. This Court also notes that this finding is not a completely new conclusion for Indiana. See United States v. Carstens, 982 F. Supp. 2d 874,878 (N.D. Ind. 2013) ("The land between the edge of the water of Lake Michigan and the ordinary high water mark is held in public trust by the State of Indiana.") * * *

In their Motion for Declaratory Summary Judgment, the Gundersons argue that they own their property to the water's edge and that there is no public trust right for the public to occupy or use the land not covered by water. The Gundersons also argue that Indiana has excluded Lake Michigan from its public trust doctrine. * * *

This Court finds it beneficial to repeat that the Gundersons' deed conveyed the legal title, thejus privatum, to their lot within section 15 and that the State holds jus publicum title, in public trust, to the land below the OHWM. These titles convey different rights to their holders and these rights may, at times, overlap geographically. The public trust only protects some public rights, the scope of Indiana's Public Trust Doctrine is considered in the next section, but it is important to note that a private landowner cannot impair the protected rights of the public. See e.g., Ill. Cent. R.R., 146 U.S. at 452-53; Lake Sand, 120 N.E. at 716.

This Court notes that the OHWM has been the subject of both statutory and common law interpretation. Indiana has adopted an Administrative definition of OHWM for the shore of Lake Michigan, currently set at an elevation of five hundred eighty-one and five-tenths (581.5) feet. See 312 Ind. Admin. Code 1-1- 26(2). This regulation also provides a codification ofthe common law interpretation of the OHWM and defines the OHWM elsewhere as "[t]he line on the shore of a waterway established by the fluctuations of water and indicated by physical characteristics." 312 Ind. Admin. Code 1-1-26(1). The regulation continues by providing a few examples of the physical characteristics, such as a clear and natural line impressed on the bank; shelving; changes in the character of the soil; the destruction of terrestrial vegetation; or the presence of litter or debris. Id. This Court finds that defining the OHWM as a set elevation will, as Defendants argue, provide clearer notice to both the land owners and the pub1ic. Therefore, as to ownership, this Court finds that the Gundersons own legal title, jus privatum, in their lots to the northern boundary of Section 15. Further, this Court finds that the State holds jus publicum, in public trust, the land below the OHWM, as defined by 312 Ind. Admin. Code 1-1-26(2). Moreover, this Court finds that the Gundersons cannot unduly impair the protected rights and uses of the public when the titles to the land overlap.

Finally, this Court must determine the scope oflndiana's public trust doctrine. [ILB: With respect to Lske Michigan] * * *

This Court finds that Indiana did not surrender the public trust encumbering Lake Michigan's shores by partially codifying the public trust doctrine as it applied to the smaller freshwater lakes in Indiana. That the land below the OHWM has not been excluded from Indiana's common law public trust doctrine. Furthermore, this Court notes that Indiana has the least amount of shoreline on a Great Lake out the eight Great Lake States; a mere forty-five miles of shoreline along Lake Michigan. Moreover, this Court finds the idea that Indiana, with such a limited amount of shoreline, would restrict and in effect deny its citizens' access to such an amazing natural resource. Granting near exclusive rights to a vast portion of the shoreline to a select few homeowners, to be a far stretch of reason and common sense.

The Gundersons have provided no evidence and no persuasive argument for finding that the recreational activities, such as swimming and walking on the beach, should not also be permissible public uses protected by the public trust doctrine. This Court notes that several other states, include some of our sister Great-Lake States, have recognized the public trust's protection for recreational enjoyment of the beach. * * *

Conclusion. For the reasons more thoroughly explained above, this Court has found that upon its admission to statehood, Indiana received the bed of Lake Michigan, up to the OHWM regardless of whether it is momentarily not covered by water and holds this land in trust for its citizens to use for certain protected purposes. Indiana's public trust protects the public'S right to use the beach below the ordinary high water mark for commerce, navigation, fishing, recreation, and all other activities related thereto, including but not limited to boating, swimming, sunbathing, and other beach sport activities. Private landowners cannot impair the public's right to use the beach below the OHWM for these protected purposes. To hold otherwise would invite the creation of a beach landscape dotted with small, private, fenced and fortified compounds designed to deny the public from enjoying Indiana's limited access to one of the greatest natural resources in this State.

THEREFORE, IT IS ORDERED, ADJUDGED and DECREED that the Gundersons' Motion for Declaratory Summary Judgment is hereby, DENIED; and Defendants' Cross Motion for Summary Judgment, Alliance-Dunes' Combined Cross Motion for Summary Judgment, and LBCA's Cross-Motion for Summary Judgment are each GRANTED.

IT IS ADJUDGED and DECREED that the Gundersons' deed conveyed to them the legal title,jus privatum, to Lots 240, 242, and 244. The northern boundary of Lots 240, 242, and 244 is the same as the northern boundary of Section 15, from which the Lots were carved.

IT IS ADJUDGED and DECREED that the State holds the shores of Lake Michigan below the ordinary high water mark, as defined by 312 Indiana Administrative Code 1-1-26(2), in trust for the public, regardless of whether the land is currently covered by water.

IT IS ADJUDGED and DECREED that the scope ofIndiana's public trust doctrine includes and protects recreational activities, such as swimming, picnicking, sunbathing, or walking, and all other activities incident thereto, along the shores of Lake Michigan.

Posted by Marcia Oddi on July 28, 2015 02:45 PM
Posted to Ind. Trial Ct. Decisions

Ind. Gov't. - "Former attorney general Carter considers comeback"

Updating this ILB post from July 22nd, Niki Kelly of the Fort Wayne Journal Gazette posted a similar item yesterday in the FWJG's "Political Notebook." Some quotes:

Current Attorney General Greg Zoeller has decided to run for Congress in the 9th District. Logistically, if he would lose in the May primary he could possibly still meet the deadline to sign up to run for attorney general in the 2016 Republican nominating convention.

Carter recently sent an email to potential GOP supporters to gauge support, but said he doesn't have a timeline for making a decision.

Since he left office, he has been working privately. Much of that work has been for the Indiana Attorney General's Office -- via contracts to help with a case affecting payments Indiana gets from the tobacco master settlement.

According to the Indiana Auditor's Office, Carter was paid $146,600 in 2014, $107,078 in 2013 and $150,900 in 2012. Altogether in the last five years, he has earned more than $500,000 from the state. He has had no payments this year.

In comparison, Zoeller's current annual salary is $92,503.

The end of this long Oct. 31, 2013 ILB post discusses former AG Carter's role in the tobacco settlements.

From a search of ILB posts from 2008, this item from Oct. 8, 2008: "After two terms, current Attorney General Steve Carter is not running again. Carter's chief deputy attorney general, Greg Zoeller, is the Republican running to succeed him in the Nov. 4 election." A Star story from Oct. 20, 2008 describes Zoeller as "The man who served as chief deputy in the Indiana attorney general's office during Steve Carter's two terms...".

A Feb. 11, 2010 ILB post is headed "AG Zoeller hires former AG Carter to arbitrate tobacco deal for State."

Posted by Marcia Oddi on July 28, 2015 02:17 PM
Posted to Indiana Government

Ind. Law - "Indiana Police Pulled the Plug on Chief Keef’s Hologram. Can They Do That?"

From the NWI Times late on July 26th, a story by Sarah Reese - some quotes:

HAMMOND | A promoter for the hip-hop music festival in Hammond that was shut down after rapper Chief Keef appeared as a hologram late Saturday said he's sorry for how the event ended.

Malcolm Jones, co-CEO of Capital Connect * * * said he believed Hammond officials might have reacted differently if news of Chief Keef's appearance hadn't been leaked and Chicago officials hadn't "planted a seed in their mind" about the controversial gangster rapper who is wanted on a warrant in Cook County. Jones declined to comment on Chief Keef's legal problems.

Hammond Mayor Thomas McDermott said he never talked to Chicago officials about Chief Keef and Hammond's decision to shut down the event when the rapper appeared at The Pavilion at Wolf Lake was about public safety. * * *

The promoters were warned the event would be shut down if Chief Keef appeared, McDermott said. The promoters told city officials Chance the Rapper would be the surprise guest, he said.

Jones said about five minutes before the hologram appeared he was told that aspect of the show was out of his control.

"They dragged me over into a production room off the stage," he said. "Once they told me, that's when I wanted to go out onstage and at least tell someone what was going on."

Hammond police shut the show down within one minute.

Chief Keef, in his brief appearance from Beverly Hills, Calif., told concertgoers to stop the violence and let the children grow up. Chief Keef chose not to appear in person because of an outstanding warrant in Cook County for failure to pay child support, NBC Chicago reported.

From the Chicago Tribune on July 27th:
Craze Fest promoters can be upset with the city of Hammond all they want, but Mayor Thomas McDermott Jr. said they had the right to pull the plug on rapper Chief Keef's hologram performance Saturday night.

McDermott said Sunday the contract promoters signed with the city allows it to approve all acts who perform on Wolf Lake Pavilion stage. McDermott said the promoters told him and at least a dozen other city employees that Chance the Rapper would be the main event at the event Saturday.

An officer, however, found Chief Keef performing on a hip-hop website and realized it was going to be beamed to the pavilion, Hammond Police Cmdr. Pat Vicari said Saturday night. Officers again warned promoters it would be shut down.

"If it was Chance the Rapper like they told us, there would've been no problem at all, but I've heard (Chief Keef) promotes violence, and I don't want that for our city and our officers," McDermott said. "We warned (Craze Fest Promoter Devon Bonaparte) we would shut it down if they put Chief Keef on, and we did." * * *

Police rushed toward the stage, turning the music off. Shining flashlights, they ordered concertgoers to leave. Fans who gathered Saturday left the grounds in an orderly fashion.

Hologram USA CEO Alki David expressed anger that the concert was shut down so abruptly.

"Shame on the mayor and police chief of Hammond for shutting down a voice that can create positive change in a community in desperate need. And for taking away money that could have gone to help the victims' families," David said in a statement. "This was a legal event and there was no justification to shut it down besides your glaring disregard for the first amendment right to free speech.

"Mark my words if you censor us you only make us stronger," he said, threatening to sue.

But there is much more. The headline to this ILB post comes from the headline to this story by Whet Moser yesterday in Chicago Magazine. The subhead: "The city of Hammond shut down a music festival after he made a virtual appearance. It might be a First Amendment problem—unless a case can be made that Keef’s identity by itself causes violence."

It turns out this story already has been widely reported, the Chicago Magazine quotes stories from the NY Times and Eugene Volokh in the Washington Post. Plus several SCOTUS decisions.

Posted by Marcia Oddi on July 28, 2015 01:00 PM
Posted to Indiana Law

Ind. Decisions - Court of Appeals issues 1 opinion(s) today (and 9 NFP memorandum decisions)

For publication opinions today (1):

In First Federal Bank of the Midwest v. Karen S. Greenwalt and Farm Credit Services of Mid-America, a 14-page opinion, Judge Brown writes:

First Federal Bank of the Midwest (“First Federal”) appeals the trial court’s order entering partial summary judgment in favor of Karen Greenwalt (“Greenwalt”) and dismissing its complaint. First Federal raises two issues which we consolidate and restate as whether the trial court erred in granting summary judgment in favor of Greenwalt. We affirm. * * *

First Federal maintains that its security interest in Tract One under the Mortgage has not been discharged and specifically asserts that there was no material alteration of the underlying loan obligation. First Federal argues that the trial court erred when it determined that the extensions of additional credit to Great Lakes after the execution of the Note and Mortgage in 2000 constituted a material alteration of the underlying obligation resulting in the discharge of the Mortgage. First Federal further argues that, even if material alterations were made to the underlying obligation, the Mortgage was not discharged but capped at the level of the amount owed under the Note at the time of the material alteration. * * *

Based upon the record, we conclude that the alteration of the loan terms between Great Lakes and First Federal constituted material alterations of the underlying obligation and the loan agreement guaranteed by Greenwalt and that, as a result, Greenwalt as a surety and Tract One were discharged.

NFP civil decisions today (4):

In re the Marriage of: Thomas E. Thompson v. Donna B. Thompson (mem. dec.)

In re the Marriage of: Deborah D. Skelton v. Rodney D. Skelton (mem. dec.)

Performance Contracting, Inc. v. Randy Lowe (mem. dec.)

In Re the Adoption of D.B. and S.R., M.R. v. J.W. (mem. dec.)

NFP criminal decisions today (5):

J.B. v. State of Indiana (mem. dec.)

Adam Horton v. State of Indiana (mem. dec.)

Jevon Deandre Ollins v. State of Indiana (mem. dec.)

Aqueeli Hakeem Walton v. State of Indiana (mem. dec.)

Michael C. Pulley v. State of Indiana (mem. dec.)

Posted by Marcia Oddi on July 28, 2015 11:07 AM
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Transfer list for week ending July 24, 2015

Here is the Clerk's transfer list for the week ending Friday, July 24, 2015. It is two pages (and 23 cases) long.

No transfers were granted last week.

Notable transfer denials included Old National Bank v. Steven Kelly, Jon A. Cook, and Rebecca F. Cook, individually and on behalf of others similarly situated. The vote was 4-1 with CJ Rush voting to transfer. Mark Wilson of the Evansville Courier & Press reported on the denial late yesterday afternoon:

EVANSVILLE — The Indiana Supreme Court will not consider Old National Bank’s petition to hear arguments on whether a lawsuit against the Evansville-based bank can proceed as a class action.

The lawsuit accuses the Evansville-headquartered bank with purposefully posting debit card and ATM transactions so as to increase depositors’ overdraft fees. * * *

Last year, Circuit Court Judge David Kiely ruled that the lawsuit can move forward as a class action.

The Indiana Court of Appeals in April affirmed the ruling, a decision left standing by the Supreme Court’s denial of the bank’s petition to transfer the case - meaning that the court won’t consider it.

That means that the Oct. 27 trial date is back on again, said Scott Danks, one of the attorneys representing the customers. Both sides have agreed it would be a bench trial, with only a judge listening to the evidence and issuing a verdict.

“We are going to do our best to hold their feet to the fire. Old National has done everything they can to intentionally delay this. It’s been four and a half years since it was filed,” Danks said. “It doesn’t take a lawyer or judge to figure out that arranging transactions from high to low to maximize fees and penalties on customers without the customers knowledge is wrong.”

Posted by Marcia Oddi on July 28, 2015 09:05 AM
Posted to Indiana Transfer Lists

Monday, July 27, 2015

Ind. Decisions - 7th Circuit decides a second Indiana case today, re FDCPA

In Grant Bentrud v. Bowman, Heintz, Boscia & Vicia (SD Ind., Lawrence), a 13-page opinion, Judge Kanne writes:

Grant E. Bentrud owes Capital One Bank, N.A. (“Capital One”), money—$10,955.20 to be exact. He amassed that debt on his credit card, and he does not dispute it here. Bentrud’s dispute instead concerns the man-ner in which Capital One’s lawyers attempted to collect the debt. The way he sees it, Bowman, Heintz, Boscia & Vician, P.C. (“Bowman Heintz”), an Indiana law firm specializing in debt collection, committed multiple violations of the Fair Debt Collection Practices Act (“FDCPA”) during their collec-tion efforts.

To remedy those alleged violations, Bentrud commenced this action in the Southern District of Indiana. After a volley of motions between the parties, the district court granted summary judgment in favor of Bowman Heintz on each of Bentrud’s FDCPA claims. For the reasons expressed below, we affirm the judgment of the district court.

Posted by Marcia Oddi on July 27, 2015 04:50 PM
Posted to Ind. (7th Cir.) Decisions

Ind. Decisions - Supreme Court enjoins a second non-lawyer from practicing law

In addition to this July 17th order against Brian K. Hill, the Court has now post a July 24th order, State ex rel. Indiana Supreme Court Disciplinary Commission v. Alberto Mejias:

... to Enjoin the Unauthorized Practice of Law against Respondent, Alberto Mejias. The Commission’s Verified Petition alleged, among other things, that Mejias, who, while employed as a legal assistant for an Indiana attorney but without his employer’s knowledge, handled client matters independently from his employer’s office and told his employer’s prospective clients that he was a lawyer. It further alleged that after leaving that employment, Mejias opened an office, began offering legal services under the name “Mejias & Mejias Legal Services,” and collected fees to perform legal services. Article 7, section 4 of the Indiana Constitution, Indiana Code section 33-24-1-2(b)(2), and Indiana Admission and Discipline Rule 24 give this Court original jurisdiction over this matter.

Posted by Marcia Oddi on July 27, 2015 04:33 PM
Posted to Ind. Sup.Ct. Decisions

Ind. Gov't. - "Deer Preserve Owners Hope Herd Mentality Leads To Voluntary Permitting"

From Purdue's NPR station, WBAA, this new story. Some quotes:

With Indiana's Supreme Court bringing an end to a 10-year legal battle over high-fence hunting preserves, the deer farming industry is stepping in to try to set standards for itself.

Deer and elk farmers have formed the Indiana Deer Advisory Council, to recommend standards for deer treatment and how they are hunted.

Advisory council chairman Gary Jacobson says he believes getting the group’s seal of approval will be valuable enough to preserve owners that they’ll follow whatever rules IDAC sets. * * *

The council has no enforcement authority, but will issue its own seal of approval to preserves which adhere to good practices, in hopes of steering consumers there. Jacobson says there need to be standards to ensure the state's 400 or so deer farms still have an end market for their herds.

The ILB's most recent prior post was the must-read July 1st: "This is a disaster! Supreme Court fenced hunting decision leads to DNR deregulating possession of many wild animals."

The ILB has also obtained a news release titled "Indiana Deer Advisory Council to Validate Hunting Preserves," that begins:

INDIANAPOLIS (July 24, 2015) – The Indiana Deer and Elk Farmers Association (IDEFA) has announced the launch of the Indiana Deer Advisory Council (IDAC). One of the main purposes of IDAC is to create and oversee a validation program for hunting preserves and deer farms in Indiana. Similar to the Pork Quality Assurance Plus program, IDAC is an industry-driven program to ensure deer health is maintained to the highest standards and to validate legal hunting preserves in Indiana that follow IDAC ethical guidelines. IDAC will issue annual hunting validations to owners that apply and prove IDAC program requirements have been fulfilled.

“An IDAC validated hunting preserve will maintain certain requirements for safety, ethics, fair chase, and record keeping,” said Gary Jacobson, Chair of the IDAC. “Hunting preserves have been unfairly vilified and this is our opportunity to display that we are more than willing to operate in a safe, legal and ethical manner.”

IDAC will include members from the Indiana Board of Animal Health along with deer farmers, hunting preserve owners, and business leaders.

A recent ruling by the Indiana Supreme Court established a major step in protecting small business owners across the state involved in the deer industry. On Friday, June 8, 2015, a deadlocked Indiana Supreme Court declined to hear the state’s appeal of a ruling allowing hunting preserves to operate in the state. The result reaffirmed the Indiana Court of Appeals ruling this past February which held that the Department of Natural Resources (DNR) overreached its constitutional authority and state law does not prohibit high-fence hunting nor does it allow DNR to regulate the practice.

Posted by Marcia Oddi on July 27, 2015 04:18 PM
Posted to Indiana Government

Ind. Gov't. -New filing in the General Assembly denial of public records lawsuit

The most recent ILB post in this lawsuit was June 30th, quoting a FWJG story. An earlier post that day gives a comprehensive background to the suit, Citizens Action Coalition of Indiana et al. v. Eric Koch and Indiana House Republican Caucus.

Today the plaintiffs have filed their 22-page response to the defendants' motion to dismiss.

Posted by Marcia Oddi on July 27, 2015 04:00 PM
Posted to GA and APRA

Ind. Decisions - "Lake Michigan lakefront homeowners do not own the beach" [Updated]

Jessica O'Brien reports today in a long story in the Michigan City News Dispatch:

MICHIGAN CITY — Judge Richard Stalbrink issued an order Friday ruling against lakefront homeowners in Long Beach, saying these property owners do not own exclusive rights to the beach lying north of their deeded land.

This lawsuit was filed by plaintiffs Long Beach Lakefront Homeowners Association, Don Gunderson and Margaret West, who argue the northern boundary of private lakefront properties is the water's edge of Lake Michigan.

Their argument was based partially on the fact that their deed gives no northerly dimension to their plat — contending that their property must run to the water's edge.

However, defendants in the case — including the State of Indiana, Department of Natural Resources, Long Beach Community Alliance, Save the Dunes, Alliance for the Great Lakes and several individuals — argue that the state owns the lakebed up to the ordinary high water mark (OHWM) as determined by the Army Corps of Engineers, which is currently 581.5 feet above sea level.

The OHWM is intended to distinguish between public and private lands.

This issue was brought before Stalbrink in La Porte County Superior Court No. 2 earlier this year on an appeal after La Porte County Circuit Court Judge Tom Alevizos first ruled against the lakefront homeowners.

In his decision, Alevizos cited court case United States v. Carstens, which said, "According to the Indiana 'public trust doctrine,' the beach area between the ordinary high water mark (OHWM) and the edge of the water of Lake Michigan is public land and not owned by any person, entity or municipality."

Also citing this case among many others, Stalbrink ruled similar to Alevizos. Stalbrink's ruling says that the state of Indiana owns the land below the OHWM, regardless if that land is covered by water at any given moment.

This ruling also determines the northern property line of the Gundersons' deed. Court documents released Monday determine the northern boundary of the Gundersons' lots 240, 242 and 244 to be the same as section 15, from which the lots were carved.

According to the story, the opinion also discusses Indiana's limited shoreline, and "the equal footing doctrine and public trust doctrine."

For background, start with this ILB post from March 30, 2015.

[Updated 7/28/15]
Here is the 22-page opinion.

Posted by Marcia Oddi on July 27, 2015 01:54 PM
Posted to Ind. Trial Ct. Decisions

Law - "Limit on Damages Is Squeezing Victims of Amtrak Wreck"

This July 24, 2015 story by Ron Nixon of the NY Times on the liability caps Congress put on Amtrak accidents is interesting. A few quotes:

But even though Amtrak has announced that it will not contest lawsuits filed against the company for the accident, Ms. Varnum and Mr. MacFarland fear they will have to come up with tens of thousands of dollars for medical bills out of their own pockets.

The couple hope their lawsuit will highlight the fact that the congressionally mandated cap on liability for Amtrak accidents can leave victims with enormous bills. In addition, they will try to find out why the railroad did not have technology, called positive train control, that federal regulators said could have prevented the accident.

“We need to hold Amtrak accountable,” Mr. MacFarland said. “This accident could have easily been prevented.”

In the reauthorization of Amtrak in 1997, Congress capped the liability against the company at $200 million for any single train accident. The provision, which does not account for inflation, was aimed at keeping railroad companies in operation when hit with major lawsuits.

“When Congress enacted the cap, it made the judgment that victims of large-scale railroad crashes will be among those who have to bear the cost of keeping Amtrak up and running,” said John C. P. Goldberg, a law professor at Harvard and expert on tort law. “It is very difficult to see why, in effect, some of the subsidy should come from the victims of train crashes rather than the public.”

In rulings in previous rail accidents, judges have struggled with how to properly compensate victims. In a 2008 commuter train accident in California that left 24 people dead and 109 injured, Judge Peter D. Lichtman, now retired, said an additional $64 million beyond the liability cap was needed to properly compensate victims.

But he was unable to get more because of the federal limit on damages. The judge awarded the payouts based on the severity of the injury, from $12,000 for those with no visible wounds to $9 million for a Zambian exchange student who suffered brain damage. In a scathing 33-page decision in 2011, a frustrated Judge Lichtman wrote: “Impossible decisions had to be made. What was given to one victim had to be taken from another.”

A provision in a bill to finance the Highway Trust Fund now being considered by Congress would raise the cap to $295 million and index it every five years for inflation. The bill would also apply the revised limit to the May 12 accident. Still, experts said the bill fell short of what was needed to fully compensate victims of large-scale rail accidents.

“That’s not nearly enough for medical and other expenses given the scope of the potential damages in the May 12 Amtrak crash,” said Ben Somberg, a spokesman for the American Association for Justice, a trade group of trial lawyers.

Amtrak declined to comment on the proposal to raise its liability limit.

Posted by Marcia Oddi on July 27, 2015 01:06 PM
Posted to General Law Related

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

In James Tsareff v. Manweb Services (SD Ind., Barker), a 16-page opinion, Judge Bauer writes:

Plaintiff-appellant, Indiana Electrical Pension Benefit Plan (“Plan”), through its trustee, James Tsareff, brings this action to collect withdrawal liability from defendant-appellee, ManWeb Services, Inc. (“ManWeb”), under the Employee Retirement Income Security Act (“ERISA”), as amended by the Multiemployer Pension Plan Amendments Act of 1980 (“MPPAA”), 29 U.S.C. §§ 1001–1461. The Plan argues that ManWeb is responsible for the withdrawal liability incurred by Tiernan & Hoover, certain assets of which ManWeb acquired through an asset sale, under a theory of successor liability. The Plan appeals the district court’s grant of judgment as a matter of law to ManWeb and denial of the Plan’s motion for summary judgment. For the reasons that follow, we reverse. * * *

For the aforementioned reasons, the district court’s grant of judgment as a matter of law to ManWeb and denial of summary judgment to the Plan is reversed. Since the district court did not address the successor liability continuity requirement, this case is remanded to the district court for further proceedings consistent with this opinion.

Posted by Marcia Oddi on July 27, 2015 11:09 AM
Posted to Ind. (7th Cir.) Decisions

Ind. Decisions - Court of Appeals issues 0 opinion(s) today (and 9 NFP memorandum decisions)

For publication opinions today (0):

NFP civil decisions today (2):

In the Matter of the Termination of the Parent-Child Relationship of B.G. & F.G. (Children), and, F.G., Sr. v. The Indiana Department of Child Services (mem. dec.)

Leo Kahn v. Fletcher Horn d/b/a Hartwood Architectural Antiques and Perry Glancy (mem. dec.)

NFP criminal decisions today (7):

Anthony W. Taylor-El v. State of Indiana (mem. dec.)

Kenneth Powers v. State of Indiana (mem. dec.)

Ahkeem Shakur Scott-Manna v. State of Indiana (mem. dec.)

Ricky B. Akins v. State of Indiana (mem. dec.)

Jimmy Scott Huntington v. State of Indiana (mem. dec.)

Larry D. Blanton, Jr. v. State of Indiana (mem. dec.)

Bonnie Motsch v. State of Indiana (mem. dec.)

Posted by Marcia Oddi on July 27, 2015 11:04 AM
Posted to Ind. App.Ct. Decisions

Ind. Gov't. - "9 years after Bloomington Council OK'd urban chickens, inspections routine"

The ILB has followed the "urban chicken" movement in Indiana for years - here is a list of some of the posts.

Last week, Megan Banta of the $$ Bloomington Herald-Times took stock of how chickens within the Bloomington city limits are working out. Some quotes from a long story with many photos:

"Girls!" Trisha Gooch cries out as she rounds the corner of the house with animal control officer Jim Pritchard.

Not to her daughters, or dogs or cats, but to her three chickens.

Gooch has one of the city's 49 active urban chicken permits, and Pritchard is there conducting an inspection to renew the Smith Road resident's permit.

It's a process that's become fairly standard since the Bloomington City Council first passed an ordinance allowing chickens within city limits in 2006, following much discussion and the appearance of a city councilman in a chicken suit. Since then, there have only been a few changes to the ordinance: the removal of both a $25 fee and a previous requirement that people get approval from neighbors, and the addition of permission to slaughter one's urban chickens.

City code allows people to get a permit to have up to five hens, but no roosters, in residential estate, residential single family and residential core zoning districts, as long as they're in an enclosed structure for protection. In another vein of protection for the birds, the city Animal Control Commission has to review any applications from people who have been convicted of cruelty to animals.

People applying for permits or who need to renew their permits get a letter detailing what they need to do. Those requirements also are summed up in a checklist that Pritchard takes to every inspection.

You can find more about the Bloomington chicken story here, with a map and video.

The NWI Times reported on June 29th that the Griffith Town Council had passed an urban chicken ordinance; it appears to be somewhat more stringent than the current Bloomington requirements.

Posted by Marcia Oddi on July 27, 2015 10:23 AM
Posted to Indiana Government

Ind. Gov't. - "Pence’s environmental petulance hurts Indiana" and "Pence noncommittal on gay anti-discrimination law"

Matthew Tully's July 24th IndyStar column is subheaded: "Gov. Mike Pence might be scoring political points with his opposition to new federal environmental proposals. But he is not helping Indiana, and he is ignoring some longterm realities." A few quotes:

It would be a lot easier to take Gov. Mike Pence’s opposition to just about every new environmental policy seriously if he didn’t so gleefully and diligently use it to try to score political points.

“We’re not going to do it,” he wrote in a recent email to “conservative” campaign supporters, one in a long series of publicity-seeking steps he’s taken to show just how much he opposes the Obama administration’s attempts to reduce air and water pollution.

We’re not going to do it? That sounds less like a grand gubernatorial statement and more like teenage petulance. Particularly when it’s not backed up by any counter-proposals or any serious concern about the state’s deeply entrenched environmental problems.

The tone was the same at a press conference Pence recently participated in — with an energy industry group, of course — in which he said, according to my colleague Maureen Groppe, “We do have a choice. You can refuse to submit a state plan.”

What a choice. Just do nothing. Sure, in a state that ranks near the bottom on all sorts of health and environmental measures, let’s just do nothing. Don’t even offer a plan that attempts to reduce emissions. Don’t get into a battle of ideas. Just say no. Hey, maybe all of that pollution will just blow over to Illinois. * * *

I understand that Pence isn’t going to be an environmental champion. But his words and actions suggest that on these issues he is living in a policy bubble free of diverse voices. That’s hurt him in other areas, and it’s not serving Indiana well on this one.

Yesterday in the NWI Times Dan Carden had a news story with a similar theme on a different topic. It begins:
Gov. Mike Pence is hinting that he believes Indiana's recent economic growth may eliminate the need for a new state law banning discrimination based on sexual orientation and gender identity.

Speaking to reporters last week following a bill-signing ceremony, the Republican seemed to suggest Indiana has suffered no long-term ill effects from the March-April "religious freedom" debacle that temporarily made Indiana synonymous with gay hate and prompted boycotts of state businesses and tourism sites.

As a result, further attempts to placate critics of Indiana's policies might not be necessary, he implied.

"I think our economy speaks for itself. Our economy is strong and growing stronger, and that's a testament to the resilience of the people of Indiana and to the great reputation our state enjoys," Pence said.

"We're going to move forward on the policies that are making that a reality, and we'll leave debates about the future for the future." * * *

When asked whether he views the need for an anti-discrimination law solely through an economic lens, the governor boasted that since he took office in 2013 more than 110,000 new jobs have been created, and Hoosier businesses this year already have promised to invest $3 billion in the state.

"I really do believe that we found a way through that difficult period last spring to calm the waters, and the facts speak for themselves: Indiana's economy is strong and growing stronger," Pence said.

"Hoosiers may be assured that I'm going to continue to advance the policies and the practices that are building on Indiana's story and telling Indiana's story."

Posted by Marcia Oddi on July 27, 2015 10:10 AM
Posted to Environment | Indiana Government

Ind. Gov't. - New state law funding local jails requires counties to apply

Mike Grant of the Washington Times Herald reported this weekend (here via Indiana Economic Digest):

The state of Indiana is working out the details on a new law that will provide funding for jails and community corrections operations throughout the state and Daviess County Sheriff Jerry Harbstreit will be among those helping establish the guidelines for grants that will come from the new law.

During its last session the General Assembly passed House Bill 1006 that was also called the Criminal Justice Funding Law. The measure will offer millions of dollars to throughout the state for jails and community corrections programs to provide drug addiction and mental health programs for offenders.

"One thing the state did differently this time is they are requiring the counties to make applications for the money," said Harbstreit. "They are not sending money to each county and telling them to spend it wisely. They are requiring the counties to tell specifically what they are going to do."

The bill was supported by the Indiana Sheriffs' Association. Now, as President of the ISA, Harbstreit will be part of a key advisory committee that will work with the Indiana Department of Correction and the Indiana Division of Mental Health and addiction in establishing guidelines for grants and helping to determine what programs get funded.

"We are going to try and set it up right," said Harbstreit. "It should set things up so that the money gets used in the most productive way."

Many counties like Daviess are already operating drug addiction programs within their jail and community corrections operations. In Daviess County, it is called the RARE Program. That program was originally established under a grant, but when the funding ended the county continued to operate it with some local funding and a lot of volunteers.

"About one quarter of our general jail population is involved in the RARE Program," said Harbstreit. "We also have a lot of people taking part who are on home detention and in the work release program. This is all about getting these people to make good decisions and not wind up back in jail when they get out."

In Knox County, there is an interdiction program in the jail called Life After Meth, Harbstreit says Grant County in northern Indiana has a similar program.

"A lot of agencies like us are excited about this," said Harbstreit. "This could be the answer to our prayers. We may be able to get the money to the programs where it needs to be. We could hire more professionals to give these people what they really need."

Posted by Marcia Oddi on July 27, 2015 09:57 AM
Posted to Indiana Government

Ind. Gov't. - "Deregulation of engineers draws fire"

That is the heading of Niki Kelly's comprehensive story this weekend in the Fort Wayne Journal Gazette on Indiana's moves to deregulate many professions. Some quotes from the long story:

Engineers, home inspectors, hearing aid dealers and auctioneers should no longer be licensed or regulated by the state, according to a committee reviewing the dozens of occupations the state oversees.

The Jobs Creation Committee has issued preliminary findings on 11 occupations but more public hearings are expected. And the Indiana General Assembly would have to vote to eliminate the licensing in the next session.

The engineering recommendation is getting the most attention so far.

“A century ago, anyone could work as an engineer without proof of competency. Now every state regulates the practice of engineering to ensure public safety by granting only (professional engineers) the authority to sign and seal engineering plans and offer their services to the public,” said Scott S. Haraburda, president of the Indiana Society of Professional Engineers.

“If the recommendations are implemented, Indiana will be the only state that fails to license and regulate its engineers, a dangerous risk that Hoosiers cannot afford to take.”

The legislature in recent years has sought to examine the possible deregulation of several occupations overseen by the Indiana Professional Licensing Agency.

Next comes some valuable history:
This is the third iteration of the committee, though the title and the members have changed several times.

First it was the Indiana Regulated Occupations Evaluation Committee in 2011, which recommended the elimination of several licenses. But in 2012 a swarm of cosmetologists and barbers blocked the move.

Then the legislature changed the committee to ERASER, which meant Eliminate, Reduce, and Streamline Employee Regulation Committee.

In 2014, the name of the committee was changed again to the Jobs Creation Committee but its task was the same – a five-year review of dozens of occupations and their licensing requirements.

Nicholas Goodwin, spokesman for the Indiana Professional Licensing Agency, said the newest committee released its first annual report this month.

The agency is an umbrella for 38 boards, commissions and committees, and regulates more than 70 professional licenses. In all, the agency regulates about 470,000 actively licensed professionals, meaning almost one in seven working Hoosiers are licensed by the agency. In looking at all of the agencies that regulate professions, 1 in 4 Hoosiers must be licensed to go to work every day.

Rep. Dave Wolkins, R-Warsaw, served on the original committee and remembers how hard it was to deregulate an occupation.

“It is an important discussion to have,” he said. “There are studies that show licensing is an impediment to jobs. They keep people out. But due to the pressure from the groups it’s very difficult to get anything done.”

He took heat from the cosmetologists and barbers for being involved in that effort. Wolkins said in general people in a profession feel it should remain licensed to protect their turf as well as the money and time they spent getting the license.

He doesn’t know specifically about the engineer recommendation but questioned why engineers would be deregulated but not architects.

“If you have an engineering degree why should the state be deciding if you are a competent engineer? I could understand and maybe even buy in but that will be hard to get through,” he said.

The story looks closely at the engineering deregulation issue, and then concludes:
The committee also voted to eliminate licensing for home inspectors, hearing aid dealers and auctioneers.

Here is what the minutes said on each of those items:

Home inspectors – “a consumer rarely chooses who their home inspector is or the company they work for as their real estate broker working on behalf of the consumer typically chooses the individual. Private sector and marketplace economic principles will weed out bad actors, and the government’s involvement in licensing these individuals is unnecessary.”

Hearing aid dealers - “Consumers seeking hearing aids are already under the care of a physician and licensing this practice was redundant. Only two hearing aid dealer licenses have been revoked since 2008 in Indiana so the JCC feels that the threat of consumer harm is minimal.”

Auctioneers – “The JCC felt this profession would be a good candidate for the self-certification registry.”

The ILB has a number of historical entries on the deregulation efforts. Here is a post from the first go-around, in 2012, headed "Ind. Law - "Hairdressers may have killed bill that would eliminate licensing," and a follow-up from the next day.

Then in 2013 the ILB had a number of posts on the new "ERASER" committee (Eliminate, Reduce, and Streamline Employee Regulation Committee), which replaced the "Regulated Occupations Evaluation Committee" (ROEC).

Posted by Marcia Oddi on July 27, 2015 09:28 AM
Posted to Indiana Government

Catch-up: What did you miss over the weekend from the ILB?

From Sunday, July 26, 2015:

From Saturday, July 25, 2015:
  • Nothing
From late Friday, July 24, 2015:

Posted by Marcia Oddi on July 27, 2015 09:17 AM
Posted to Catch-up

Ind. Decisions - Upcoming oral arguments this week and next

This week's oral arguments before the Supreme Court (week of 7/27/15):

  • No arguments currently scheduled.

Next week's oral arguments before the Supreme Court (week of 8/3/15):

  • No arguments currently scheduled.

Webcasts of Supreme Court oral arguments are available here.


This week's oral arguments before the Court of Appeals (week of 7/27/15):

Monday, July 27

  • 1:30 PM - Lanni v. National Collegiate Athletic Association (49A02-1409-CT-649) Lydia Lanni appeals the trial court's entry of summary judgment for the National Collegiate Athletic Association (NCAA) and the United States Fencing Association, Inc. (USFA). According to her complaint, in March of 2010 Lanni suffered a severe eye injury after she was struck by a fencing sabre at a fencing competition on the campus of the University of Notre Dame in South Bend. Lanni alleges that her injury resulted from negligence on the parts of the NCAA, the USFA, and Notre Dame. Lanni raises three issues for our review, namely: (1) whether the trial court erred when it denied her motion for a change of judge following remand from this court in a prior appeal; (2) whether the trial court erred when it entered summary judgment for the NCAA and against Lanni; and (3) whether the trial court erred when it entered summary judgment for the USFA and against Lanni. The Scheduled Panel Members are: Judges Baker, Najam and Friedlander.. [Where: Court of Appeals Courtroom (WEBCAST)]

  • 3:00 PM - McDivitt v. McDivitt (79A02-1501-DR-29) Wesley and Sue McDivitt entered into a prenuptial agreement before they were married in 1999. The agreement provided that Wesley's retirement benefits were to remain his sole property. In 2000, Wesley elected to withdraw early retirement benefits in the form of a joint and survivor annuity. Sue was named as a beneficiary and would therefore continue to receive payments in the event of Wesley's death. The monthly annuity payments came in checks made payable to Wesley. When the couple divorced in 2014, Sue argued that she was entitled to half of the annuity payments because her interest became vested once the couple started receiving the payments. Wesley argued that the terms of the prenuptial agreement controlled and that he did not intend to waive any terms by electing to receive his annuity payments under a joint and survivor plan. The trial court agreed with Sue, holding "[b]y selecting a joint and survivor policy, the Husband transferred ownership of the proceeds of the policy to the Wife jointly for life, and to the Wife exclusively after Husband's death." The trial court held that Sue is entitled to half of the payments and ordered the couple "to take such action as is necessary to cause payments to be made in equal portions." The Scheduled Panel Members are: Judges Baker, Najam and Friedlander. [Where: Court of Appeals Courtroom (WEBCAST)]

Next week's oral arguments before the Court of Appeals (week of 8/3/15):

  • No oral arguments currently scheduled.

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.

Posted by Marcia Oddi on July 27, 2015 09:09 AM
Posted to Upcoming Oral Arguments

Sunday, July 26, 2015

Ind. Gov't. - Reporter's "Reflections after 20 years under the Statehouse dome"

As reported in Indiana Legislative Insight July 13th:

Lesley Weidenbener, who as the executive editor of The StatehouseFile.com for Franklin College built what is effectively a statewide print news network, will join the Indianapolis Business Journal as managing editor.
Today Lesley had a long, "summing-up" column in the Louisville Courier-Journal. Here are some quotes:
Twenty years ago when I arrived at the Indiana Statehouse to begin covering the General Assembly, the beat was among the most respected in the newsroom.

Covering the legislature meant you were doing something that mattered – writing stories about taxes, highways, education and social issues, stories that helped people make decisions about their lives and at the polls. Editors and the public saw it that way too.

But over the decades – as I moved from covering state government for The Journal Gazette in Fort Wayne to The Courier-Journal in Louisville to TheStatehouseFile.com where I’ve been the editor – the position has diminished in stature inside and outside the media industry.

The public’s increasing distaste and skepticism for government and politics, a changing news business that focuses on the sensational, and elected officials who’ve been slow to eliminate perks their constituents loathe have contributed to the overall decline in the respect for even the reporters who cover the beat. * * *

Twenty years ago when I arrived at the Indiana Statehouse to begin covering the General Assembly, the beat was among the most respected in the newsroom.

Covering the legislature meant you were doing something that mattered – writing stories about taxes, highways, education and social issues, stories that helped people make decisions about their lives and at the polls. Editors and the public saw it that way too.

But over the decades – as I moved from covering state government for The Journal Gazette in Fort Wayne to The Courier-Journal in Louisville to TheStatehouseFile.com where I’ve been the editor – the position has diminished in stature inside and outside the media industry.

The public’s increasing distaste and skepticism for government and politics, a changing news business that focuses on the sensational, and elected officials who’ve been slow to eliminate perks their constituents loathe have contributed to the overall decline in the respect for even the reporters who cover the beat.

Lesley then goes on to talk about legislators, money, voter, and how most legislation is created by consensus, so that "few pieces of legislation make any one person truly happy." This really is a column you should read in full.

Re the importance of voter input, Lesley writes:

Few things are as influential with a lawmaker as contact from a constituent. Letters, emails, calls and visits mean more to most legislators than money. They represent votes and votes mean reelection.

The problem is that we voters just don’t pay attention to the vast majority of issues.

Lawmakers will get hundreds of contacts when they’re debating issues like annexation, guns, and gay rights. And they pay attention. In fact, sometimes a small group of voters can have out-sized influence because they’re so squeaky.

But in the absence of constituent input, lawmakers are left to their own deductions – and the influence that comes from special interests. Bills about esoteric changes in insurance law or utility regulation don’t generate the voter input are the ones most likely influence by big money.

ILB: The result for the public can be the "legislative surprises" that turn up months after each session has concluded. Sometimes, as with this report July 16th by another long-time statehouse reporter, even the lawmakers are taken by surprise.

Posted by Marcia Oddi on July 26, 2015 06:58 PM
Posted to Indiana Government

Ind. Decisions - Recent SD Ind. Decision Denies Motorist Right To Stop In Safe Location

The subheading to this story at TheNewspaper.com is: "Federal judge rules that waiting to pull over in a safe, well-lit location is equivalent to resisting arrest." The story also links to the July 10, 2015 opinion, U.S. v. McPaul, by Judge Tanya Walton Pratt.

Posted by Marcia Oddi on July 26, 2015 06:37 PM
Posted to Indiana Decisions

Friday, July 24, 2015

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

In Katherine Cerajeski v. Greg Zoeller (SD Ind., Magnus-Stinson), a 6-page opinion, Judge Posner writes:

This appeal is a sequel to our decision reported at 735 F.3d 577 (7th Cir. 2013), in which we held unconstitutional a provision of the Indiana Unclaimed Property Act, Ind. Code §§ 32-34-1-1 et seq. (Indiana’s version of the Uniform Unclaimed Property Act) that authorized the state to confiscate private property without any compensation—let alone just compensation—to the owner. [ILB: See ILB summary of the 2013 opinion.] * * *

So the case returned to the district court. Several months later the state, having in response to our decision amended its Unclaimed Property Act to provide for payment of inter-est on property to which the owner had made a valid claim, Ind. Code §§ 32-34-1-9.1, 32-34-1-30 (effective July 1, 2014), moved to dismiss the suit as moot. The plaintiff, objecting, asked the district court, pursuant to our judgment, to enter a declaratory judgment and also to award the attorneys’ fees incurred in prosecuting the appeal that had resulted in our judgment. (The plaintiff is not seeking an award of fees for any other part of the litigation in either the district court or this court.) The district judge refused, dismissed the suit as moot, and later denied the motion for attorneys’ fees primarily on the ground that, the suit having been dismissed, the plaintiff was not a prevailing party. The plaintiff has appealed.

The district judge was annoyed at the plaintiff because on remand from our court she’d asked permission to file an amended complaint that would have converted the suit to a class action. She did that because of intimations that the state would, despite our decision, compensate only the plaintiff, forcing the multitude of similarly situated creditors to bring their own suits. But she withdrew that request (as distinct from her request for an award of attorneys’ fees) when the state amended the Unclaimed Property Act. For the amendment mooted her federal claim for damages by entitling her to payment by the state of the interest that she had sought in her lawsuit.

By amending the statute the state conceded that it owed the interest to the plaintiff. But its concession could not deprive the plaintiff of her status as the prevailing party in the litigation. Our decision had preceded the amendment of the statute and by holding that she was entitled to damages equal to the unpaid interest had made her the prevailing party. See National Rifle Association of America, Inc. v. City of Chicago, 646 F.3d 992, 994 (7th Cir. 2011). She would not have been the prevailing party had the state, as in Zessar v. Keith, 536 F.3d 788, 797 (7th Cir. 2008), amended its law before our decision—that would have mooted the case and we would have had to dismiss it for want of jurisdiction, thus not deciding the merits and not ordering any relief. * * *

Even if our holding in the previous round that the plaintiff was entitled to just compensation in a suit under section 1983 (or perhaps in any federal suit) was incorrect and the challenge to it not waived by not being made in our court, the plaintiff nevertheless had obtained a judgment which compelled a change in state law that gave her compensation equal to the damages she was seeking, and it was a result brought about by the efforts of her lawyers. * * *

We therefore reverse the judgment of the district court and remand the case for a determination of the amount of attorneys’ fees to which the plaintiff is entitled. We offer the tentative view that the amount sought—$258,462.50 for 375.75 hours—is excessive, both in the amount of time for which fees are sought and in the average hourly billing rate ($687.86). Remember that this was just time spent on the appeal (the first, not the present, appeal), and the high average billing rate implies that few junior members of the two law firms who handled the appeal for the plaintiff could have been assigned to work on the appeal. In fact it appears that law-firm partners billed more than 93 percent of the total hours billed.

The plaintiff asks us to determine the amount of attorneys’ fees to which she is entitled, but we think it a task better left to the district court.

ILB: A look at the docket shows that Ms. Cerajeski's attorneys' firms are located in Chicago.

Posted by Marcia Oddi on July 24, 2015 04:47 PM
Posted to Ind. (7th Cir.) Decisions

Law - "In Helping Those With Disabilities, ADA Improves Access For All"

I heard this 7-minute feature early today on NPR's Morning Edition; here is the audio, plus transcript with many photos. It is well-worth reading; the listeners'comments are also interesting.

Posted by Marcia Oddi on July 24, 2015 01:05 PM
Posted to General Law Related

Ind. Decisions - Why is this decision today categorized as NFP?

Today's NFP decision in Kenneth Eugene Million v. Sheriff of Johnson County, Indiana; Indiana Department of Correction; Indiana State Police; and State of Indiana (mem. dec.), re sex offender registration, among the cases summarized earlier today, raises the ILB's "Why is this case NFP" question.

BTW, the ILB does not often summarize NFP cases, as decisions so designated by the panel deciding them are of no substantive value (per Appellate Rule 65(A)), but I looked though today's and found several decisions of at least academic interest.

Posted by Marcia Oddi on July 24, 2015 12:45 PM
Posted to Why is this NFP?

Ind. Decisions - Court of Appeals issues 1 opinion(s) today (and 10 NFP memorandum decisions)

For publication opinions today (1):

In Antyon Buford v. State of Indiana , an 11-page opinion, Judge May writes:

Antyon Buford appeals his convictions of Class A felony dealing cocaine, Class B felony unlawful possession of a firearm by a serious violent felon, and Class D felony maintaining a common nuisance. As the warrant on which the search of his residence was premised was not supported by probable cause, we reverse and remand. * * *

Buford argues the evidence obtained pursuant to the search warrant should have been suppressed because the affidavit the police offered in obtaining the warrant included uncorroborated hearsay and false or misleading statements. As the probable cause affidavit included hearsay information that was not corroborated by the totality of the circumstances, the warrant should not have been issued. * * *

In the case before us, the totality of the circumstances did not corroborate a hearsay statement that there was “dealing” of drugs from Buford’s residence or that “a search at that address would yield fruits of the crime” of dealing. Id. We must accordingly reverse and remand for further proceedings.

NFP civil decisions today (6):

In the Matter of the Adoption of: A.E.G.; A.G. v. E.R.J., and K.M.J. (mem. dec.)

In Charles Bradley Nixon v. JNJ Foods, LLC d/b/a McDonald's (mem. dec.), a 12-page, 2-1 opinion, Judge Baker writes:

Charles Bradley Nixon appeals the trial court’s grant of summary judgment in favor of JNJ Foods, LLC d/b/a McDonald’s (JNJ) on Nixon’s complaint for damages for injuries suffered after biting into food that allegedly contained a foreign object. Finding that there are genuine issues of material fact rendering summary judgment improper, we reverse and remand for further proceedings.
In In Re the Marriage of: David P. Allen v. Kimberly W. Allen (mem. dec.), an 8-page opinion, Judge Bailey writes:
David P. Allen (“Father”) appeals an order that he pay 100% of dental school tuition for Hunter Allen (“Hunter”), his youngest child with Kimberly W. Allen (“Mother”). * * * We reverse and remand for a college expenses order appropriately apportioning the costs between Hunter, her father, and her mother.
In Re the Marriage of John Lane v. Leisa Lane (mem. dec.)

Diane Lane, Darrell Lane v. Danny English (mem. dec.) -THIS LINK is wrong.

In Kenneth Eugene Million v. Sheriff of Johnson County, Indiana; Indiana Department of Correction; Indiana State Police; and State of Indiana (mem. dec.), a 7-page opinion, Judge May writes:

Keith Eugene Million appeals the denial of his request to be released from the requirement that he register as a sex offender in Indiana. We reverse. * * *

“Substantially Similar” Clause

Million argues he should not have to register under the “substantially similar” clause because the facts in his case are like those in Wallace v. State * * *

Million committed his crime in 1989, before Indiana enacted INSORA in 1994. Therefore, like in Burton and Hough, the imposition of a requirement that he register as a sex offender in Indiana violates our constitutional prohibitions against ex post facto laws.

Required to Register in Another Jurisdiction

Under Ind. Code § 11-8-8-19(f), an Indiana resident who is “required to register as a sex or violent offender in any jurisdiction” is required to register as a sex offender in Indiana for the time required by the other jurisdiction or the time required by INSORA, “whichever is longer.” Id. Million was not required to register as a sex offender in Florida. Therefore, he is not required to register as a sex offender in Indiana under Ind. Code § 11-8-8-19(f). See Andrews v. State, 978 N.E.2d 494 (Ind. Ct. App. 2012) (Andrews, who was convicted of multiple sex offenses in Massachusetts in 1984, was not required to register as a sex offender after moving to Indiana because he was not required to register as a sex offender under Massachusetts law).[5]
______
[5] The State relies on our recent holding in Tyson v. State, 28 N.E.3d 1074 (Ind. Ct. App. 2015), reh’g denied, however, Tyson is easily distinguishable. Tyson committed a sexual offense in Texas in 2002. Under Texas law, Tyson was required to register as a sex offender until 2014. When Tyson moved to Indiana in 2009, he did not register as a sex offender and was charged with Class D felony failure to register. Tyson moved to dismiss, and we affirmed based on the plain language of Ind. Code § 11-8-8-19(f). As Million had no requirement to register in Florida, Tyson is inapposite.

NFP criminal decisions today (4):

Anthony Levell Gregory, II v. State of Indiana (mem. dec.)

Walter L. Robertson v. State of Indiana (mem. dec.)

Manuel Guzman v. State of Indiana (mem. dec.)

Marcus Stidhum v. State of Indiana (mem. dec.)

Posted by Marcia Oddi on July 24, 2015 12:15 PM
Posted to Ind. App.Ct. Decisions

Ind. Courts - Supreme Court posts additional e-filing amendments

Here is the order issued today,further amending Trial Rule 86, and concluding with this scheduling information for courts in which e-filing has been deployed:

We further find that our technology team, the EFM provider, and partner trial courts are, or are expected to become, ready to begin electronic filing in courts designated by the E-Filing Steering Committee as pilot courts. Accordingly, we find that Trial Rule 86 should become effective in the pilot E-Filing courts and in courts in which the Steering Committee subsequently deploys E-Filing, in accordance with a schedule to be established as ordered below. For courts in which E-Filing has not been deployed, all existing Rules of Court regarding filing and service shall remain in effect.

IT IS, THEREFORE, ORDERED that the Division of State Court Administration, with the approval of the E-Filing Steering Committee, shall establish and publish an E-Filing Implementation Schedule. This E-Filing Implementation Schedule shall be published in a prominent location on the website of the Supreme Court at http://courts.in.gov/efile. The Schedule shall state when and for which case types (as defined in Administrative Rule 8) T.R. 86 will be effective in the designated pilot courts and also when and in what courts E-Filing will become mandatory. The Division shall update the schedule periodically as directed by the Steering Committee.

Posted by Marcia Oddi on July 24, 2015 10:48 AM
Posted to Indiana Courts

Ind. Gov't. - Are custom home building plans "trade secrets" under the public records law?

In an interesting Public Access Counselor opinion from July 21st, 15-INF-15, re "Confidentiality of Building Plans, Town of Long Beach, Indiana," an informal opinion is sought by a town employee. Some quotes:

You requested an informal opinion on an Access to Public Access question regarding a person who requested “any and all information” on three new homes being built in the Town of Long Beach, Indiana (“Town”). These records are received and maintained by the Town for the purposes of issuing permits, etc. You expressed concern about providing information about the inside of the homes and asked for an informal opinion about how to approach the issue.

To aid in the determination, you provide several facts.

1. That these homes are intended to be custom-made and that the drawings have been copyrighted by the contractor.
2. Included in these drawings are locations of security systems, safes, electrical equipment, etc.
3. The contractor views the drawings as trade secrets

Ind. Code §5-14-3-4 does not make an exception of the release of public records with technical information which would compromise residential security systems. Similarly, records which include information concerning electrical equipment are not exempt, unless it would compromise the utility’s electrical infrastructure.

However, Ind. Code §5-14-3-4(a)(4) does exempt records that are considered trade secrets. A similar consideration was made in a previous Opinion of the Public Access Counselor 13-FC-49, which is incorporated into this opinion. * * *

In this situation, it does appear the plans could be considered trade secrets. Indiana courts have afforded trade secret status to documents that included customer blueprints. See Infinity Products, Inc. v. Quandt, 810 N.E.2d 1028, 1032 (Ind. 2004), trans. Denied.

Ind. Code 5-14-3-4(a) states that an agency may not disclose records declared confidential by state statute or required to be kept confidential by federal law unless access to those records is specifically required by a state or federal statute or is ordered by a court under the rules of discovery. Under this exemption, copyrighted plans are generally non-discloseable under the APRA. However, it should be noted that a public entity cannot copyright a document to prevent disclosure.

After several conversations with the requestor (see also Opinion of the Public Access Counselor 15-FC-197), I have determined the information he is seeking is information which would not be considered a trade secret, i.e. the exterior of the home, elevation, lot size, etc. Only the interior plans of the home would be considered to fall into an exception to disclosure. My anticipation and hope is that the requestor will be satisfied with the exterior plans, as that is the subject of his curiosity. The exterior plans, drawings and elevations should be released to him as soon as possible.

Posted by Marcia Oddi on July 24, 2015 09:27 AM
Posted to Indiana Government

Ind. Law - Indiana Tech Law School giving "100-percent scholarships to every single student enrolled there next year"

On June 10th the ILB reported that Indiana's newest law school, Indiana Tech, had not been granted provisional accreditation by the American Bar Association. The school said it would "reapply for accreditation later this summer, with the hope of receiving a vote by the Council in 2016."

As Linda Lipp of KPCNews reported last week in a lengthy story, the school is now reapplying:

The founding dean, Peter Alexander, left abruptly at the end of the law school’s first academic year in 2014. An interim dean served in that position until [Charles] Cercone came on board in January.

The school’s enrollment the first two years did not live up to expectations. It had hoped for 100 the first year, and enrolled 25. The second year was a little better, but the school ended the year with just 57 first- and second-year students.

Because of the uncertainty over the accreditation status, some of those students may well transfer elsewhere, Cercone acknowledged. It also has put a damper on recruitment.

“Obviously, in the posture we’re in this year, I don’t expect that to improve,” he said. “We would like to have 20 students in the incoming class, and that’s what we’re shooting for.”

As an added enticement, the university is giving 100-percent scholarships to every single student enrolled there next year.

“It shows the university’s and the board of trustees’ support for the law school and their belief in the law school, and we hope that’s going to incentivize students to stay,” Cercone said.

The legal community in and around Fort Wayne also has been very supportive, among other things, by helping provide externships for students who wanted them.

Indiana Tech’s law school curriculum is very hands on in its approach.

“Traditionally, law schools kind of take education in silos. You learn theory for like the first two years and then you may do some real life stuff in the third year. And that separation between theory and really doing it puts a disconnect in the students’ heads,” he said.

Indiana Tech’s courses, on the other hand, teach theory about something, such as contracts, and then go straight into the application of that theory by having the students write contracts.

“That reinforces the theory. Our students learn by doing,” Cercone said.

Cercone came to Indiana Tech from Western Michigan University’s Thomas M. Cooley Law School, where he had been dean since 2003. He has since brought in some of his former coworkers to work at Indiana Tech.

See also this story from the WSJ Law Blog, headed "Law School Promises Free Tuition to All of its Students*," that begins:
A law school in Indiana is offering students an unbeatable price — a year of law school tuition free.

Indiana Tech Law School in Fort Wayne, which opened its doors two years ago, is waiving the more than $30,000 it normally charges tuition and fees, promising a full one-year scholarship to any student who enrolls this fall.

Students have to cover room and board but the rest is on the house. To stay eligible, they don’t even have to maintain high grades, as long as they stay in good academic standing, according to its dean.

There is a catch, though.

*Graduates of the school may not be able to take the bar exam and become a practicing lawyer.

The American Bar Association last month refused to grant Indiana Tech provisional accreditation for reasons neither the school nor the ABA will disclose. That means at least until next spring, enrolled students will be stuck in law school purgatory.

Most states, including Indiana, don’t let students take the bar exam unless they graduated from a law school accredited by the American Bar Association.

Posted by Marcia Oddi on July 24, 2015 08:59 AM
Posted to Indiana Law

Thursday, July 23, 2015

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

In USA v. Emanuel Newman (ND Ind., Miller), a 5-page opinion, Judge Easterbrook writes:

More than 20 years ago, Emanuel Newman was sentenced to 540 months’ imprisonment for drug offenses, which included distributing between 40 and 50 kilograms of cocaine. See United States v. Newman, No. 91-3192 (7th Cir. Oct. 5, 1993) (unpublished order affirming his conviction and sentence). Congress and the Sentencing Commission have several times reduced permissible sentences for sellers of crack cocaine, but until recently none of these changes affected persons who distributed powder cocaine. Amendment 782 to the Sentencing Guidelines, however, effects an across-the-board reduction of two offense levels in the drug-quantity table at U.S.S.G. §2D1.1. Because the Sentencing Commission made that change retroactive, 18 U.S.C. §3582(c)(2) allows district judges to reduce the sentences of persons already in prison (though Amendment 782 provides that reductions under its terms cannot permit anyone to be released before November 1, 2015). * * *

The United States has confessed error, and for the reasons we have given we agree with its conclusion that the district court lacked the authority to increase Newman’s sentence by an order entered more than 14 days after December 30, 2014.

The district court’s decision of January 29, 2015, is vacat-ed, and the case is remanded with instructions to reinstate a set of terms that in aggregate cannot exceed 348 months.

Posted by Marcia Oddi on July 23, 2015 01:07 PM
Posted to Ind. (7th Cir.) Decisions

Law - "Sandra Bland and the 'lawful order' problem"

An interesting article by Prof. Orin Kerr of the Volokh Conspiracy - the issue:

The Bland video brings up an overlooked problem with the law of police-citizen encounters. The police can back up their orders with force because it’s often a crime to disobey a lawful order from a police officer. But from a citizen’s perspective, it’s often impossible to know what is a lawful order. As a result, it’s often impossible for citizens to know what they can and can’t do during a police encounter.

Posted by Marcia Oddi on July 23, 2015 12:58 PM
Posted to General Law Related

Ind. Gov't. - Commission on Improving the Status of Children releases annual report

The news release this morning begins:

The annual report for the Commission on Improving the Status of Children in Indiana is now available online. The 35-page report is a window into the collaborative work being done across all three branches of Indiana government to improve the lives of Hoosier children--especially the most vulnerable. The report was developed by the 18-member Commission.

The report concentrates on access to and availability of mental health and substance abuse services; information sharing; promoting best practices, policies and programs; and obtaining information from agencies and experts.

Posted by Marcia Oddi on July 23, 2015 11:37 AM
Posted to Indiana Government

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

For publication opinions today (1):

In Shawn Wilson v. State of Indiana, a 25-page opinion, Chief Judge Vaidik writes:

Daniel Jaffke was working as a pizza-delivery driver when he was shot to death and his black Jeep was stolen from an apartment complex on the south side of Indianapolis. Jaffke’s Jeep was soon discovered in a laundromat parking lot located very near Shawn Wilson’s stepmother’s house, where Wilson appeared the night of Jaffke’s murder saying that he had just shot a man on the south side and had used the handgun that was—at that point—sticking out of his waistband. One of Wilson’s fingerprints was found inside Jaffke’s Jeep. Wilson was charged with murder; felony murder; robbery as a Class A felony; and carrying a handgun without a license, a Class A misdemeanor enhanced to a Class C felony due to a prior conviction. The State also sought a sentencing enhancement for use of a firearm in the commission of the offense. A jury found Wilson guilty of all charges. At sentencing, the trial court merged felony murder into murder, and reduced the robbery from a Class A felony to a Class C felony to avoid double-jeopardy concerns. The trial court also imposed the five-year use-of-a-firearm sentencing enhancement, for a total sentence of sixty-five years to be executed in the Indiana Department of Correction.

Wilson now appeals his convictions and sentence, contending first that the trial court abused its discretion in preventing Wilson from cross-examining a witness on prior inconsistent statements he had made during a deposition. Specifically, Wilson argues that the witness’s deposition testimony that he had been arrested once before when, in fact, he had been arrested four times should have been admitted under Indiana Evidence Rules 607, 616, and 608(b).

We find that these rules do not support the admission of the witness’s prior inconsistent statements. Wilson also contends that several statements made by another witness during her deposition—that she had heard someone say that he and Wilson had committed the offense; and had heard another person say that she had been asked to dispose of the weapon and had done so—should have been admitted as hearsay-exception “statements against penal interests” under Indiana Evidence Rule 804, but for the trial court’s determination that Wilson had not shown those individuals were “unavailable” as required by that rule.

We agree that Wilson did not make the requisite showing of unavailability and the hearsay statements were, therefore, inadmissible. Wilson additionally argues that the evidence is insufficient to sustain his convictions. Finally, Wilson challenges several aspects of his sentence. Finding no error, we affirm Wilson’s convictions and sentence.

NFP civil decisions today (0):

NFP criminal decisions today (2):

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

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

Posted by Marcia Oddi on July 23, 2015 11:15 AM
Posted to Ind. App.Ct. Decisions

Ind. Decisions - 7th Circuit decided one Indiana case yesterday

In USA v. Joseph B. Miller (ND Ind., Moody), a 19-page opinion, Judge Flaum writes:

In 2013, a federal jury found Joseph Miller guilty of bank robbery. Miller now seeks a new trial, which he believes is warranted for two reasons: first, Miller contends that an FBI agent offered false testimony during his trial, and second, he argues that his trial counsel provided constitutionally ineffective assistance by failing both to seek suppression of an in-court identification and to challenge the credibility of the testifying FBI agent via cross-examination on certain specified issues. Because we conclude that neither the agent’s alleged misstatements nor counsel’s purported errors affected the outcome of Miller’s trial, we affirm the district court’s denial of his new trial motion.

________
[5] We note that because Miller brought his ineffective assistance of coun-sel claim on direct appeal, he will be barred from collaterally attacking his conviction on these same grounds. See Peoples v. United States, 403 F.3d 844, 848 (7th Cir. 2005) (“[A] defendant who chooses to make an ineffective-assistance argument on direct appeal cannot present it again on collateral review.”).

Posted by Marcia Oddi on July 23, 2015 10:33 AM
Posted to Ind. (7th Cir.) Decisions

Wednesday, July 22, 2015

Courts - More on: Ongoing Kentucky federal court trial of clerk who refused to issue same-sex marriage licenses [Updated]

Updating yesterday's long ILB post, David Wells of the Courthouse News Service is reporting that a somewhat similar lawsuit has been filed in Indiana federal court by a Harrison County Clerk's office employee, Linda Summers, against Harrison County and County Clerk Sally Whitis, for failure to provide "a religious accommodation to be exempt from processing same-sex marriage licenses, which Summers says is against her Christian beliefs."

In Kentucky, therefore, it is the ACLU suing a county clerk for refusal to issue licenses, as opposed to a clerk's employee in Indiana reportedly suing an Indiana county for being required to issue licenses, despite her request for religious accommodation.

The ILB will attempt to obtain copies of these lawsuits.

[Updated]

Here is the 8-page complaint in the SD IND. case of Summers v. Whitis, filed 7/15/15.

Here is the 15-page complaint in the ED KY case of Miller, et al v. Davis, filed 7/2/15.

[Updated 7/24/15] Here is an Indianapolis Star story from last evening, headed "Indiana woman who refused to process same-sex marriage applications files lawsuit," reported by Kristine Guerra. Some quotes:

Linda Summers, a former Harrison Superior Court Clerk’s Office employee, filed the lawsuit last week against Harrison County and County Clerk Sally Whitis in the U.S. District Court for the Southern District of Indiana in New Albany. The suit, which is filed in federal court, is not an invocation of the state’s new Religious Freedom Restoration Act or RFRA.

According to the complaint, Summers wrote and hand-delivered a letter to Whitis, telling her that processing licenses for gay couples is against her sincerely held religious beliefs against same-sex marriage, and asking that she not be required to do so.

Summers was fired on Dec. 9, shortly after she gave her letter to Whitis, who accused her of insubordination. She accused her former employer of unlawful employment practice and alleged that her termination is against the county policy of not discriminating against anyone based on “race, religion, color, sex, age, national origin, disability, military status, or any other classification under applicable law,” according to the complaint.

Whitis had sent a mass email to employees telling them they are required by state law to process applications for marriage licenses by same-sex couples even though it may be against their personal beliefs. The email was sent last October, a few days after the U.S. Supreme Court denied petitions to hear same-sex marriage in five states, including Indiana. The decision allowed lower-court rulings legalizing same-sex marriage to stay in place.

Louisville lawyer Richard Masters, who is representing Summers, said the lawsuit is “just a generic First Amendment free exercise case” and his client had the protected right to exercise her religious beliefs that go against same-sex marriage. He also said there are other employees at the clerk’s office who were willing to process same-sex marriage licenses.

Masters said he has not looked at the possible application of the federal RFRA law to the case.

“I’m not going to tell you it wouldn’t apply at all,” said Masters, of Masters, Mullins & Arrington. “What I’m saying is I think the First Amendment speaks for itself ... with or without RFRA.”

Posted by Marcia Oddi on July 22, 2015 03:20 PM
Posted to Courts in general

Ind. Decisions - Court of Appeals issues 2 opinion(s) today (and 8 NFP memorandum decisions)

For publication opinions today (2):

In Thomas Bunger as Personal Representative of the Estate of Kenneth K. Kinney, and Cheryl Underwood v. Sheree Demming , a 26-page opinion, Judge May writes:

Cheryl Underwood, a real estate broker, and the estate of her business partner Kenneth Kinney appeal a judgment for Sheree Demming. * * *

The trial court’s determinations Underwood was Demming’s agent, that Kinney and Underwood were partners in the purchase of the Properties, and Underwood breached her duty to Demming were not clearly erroneous. The trial court did not abuse its discretion in calculating damages, awarding attorney fees, or denying Kinney’s motion for judgment on the pleadings. However, it should not have awarded prejudgment interest. We accordingly affirm in part, reverse in part, and remand for recalculation of the damage award to reflect the removal of prejudgment interest.

In Abdullatip Osmanov v. State of Indiana, a 12-page opinion, Judge Pyle writes:
Abdullatip Osmanov (“Osmanov”), a United States permanent resident who pled guilty to a felony and a misdemeanor, filed a petition for post-conviction relief, in which he claimed that his plea was entered unknowingly and that his trial counsel was ineffective, with both claims dependent on his contention that he had not been advised of the risk of deportation. Before the State filed a response to the petition, the post-conviction court—relying on a written advisement and waiver of rights form and the transcript from Osmanov’s guilty plea—summarily denied Osmanov’s post-conviction petition because the advisement/waiver form contained an advisement that a felony conviction could result in the possibility of deportation and because Osmanov stated during the guilty plea hearing that he had read the advisement and discussed it with his attorney. On appeal, Osmanov challenges both the propriety of the post-conviction court’s entry of a summary denial and the denial of his two post-conviction claims. We find Osmanov’s issue regarding the summary disposition to be dispositive and conclude that the post-conviction court erred by summarily denying Osmanov’s post-conviction petition. Accordingly, we reverse the post-conviction court’s judgment and remand for further proceedings. * * *

Osmanov’s petition—when reviewed without considering documents outside the pleadings—pled facts that raised issues of possible merit. Thus, the post-conviction court erred by summarily denying relief on his post-conviction petition under Post–Conviction Rule 1(4)(f). Accordingly, we must reverse the post-conviction court’s summary denial and remand for further proceedings on his ineffective assistance of counsel and unknowing guilty plea claims.

NFP civil decisions today (3):

Hameck Oil Company, Ltd., TWE Management, LLC, Eckard Global, LLC, and Troy W. Eckard v. J Group Energy I, LLC and Bakken Oil & Gas Management, Inc., and HOC Bakken Legacy I, LLC (mem. dec.)

Property-Owners Insurance Company v. Gerald T. Powers and Phyllis J. Powers, et. al. (mem. dec.)

In re the Matter of the Paternity of L.J.E.L., K.J.D.L. v. L.J.B. (mem. dec.)

NFP criminal decisions today (5):

John Bochner v. State of Indiana (mem. dec.)

Evelyn Butcher v. State of Indiana (mem. dec.)

Steven Miller v. State of Indiana (mem. dec.)

Earl Edwards v. State of Indiana (mem. dec.)

Roger Pringle v. State of Indiana (mem. dec.)

Posted by Marcia Oddi on July 22, 2015 10:45 AM
Posted to Ind. App.Ct. Decisions

Ind. Gov't. - "Carter eyes return as Indiana attorney general"

Interesting story last evening from Dan Carden of the NWI Times reported:

INDIANAPOLIS | Former two-term Attorney General Steve Carter, who grew up in Lowell, is talking with Hoosier Republicans about reclaiming his old office in 2016 now that the incumbent, Greg Zoeller, is running for Congress.

In an email message sent Monday night to potential GOP supporters, Carter said he plans to travel the state over the next few weeks gauging support for a sequel to his 2001-08 service as lawyer for the state.

"Should I decide to seek the office again, my sole focus will be on becoming the best attorney general I can be, fully committed to that office and the people of Indiana," Carter said.

Carter declared in his message that the achievements of his first stint as attorney general — cracking down on telemarketers, ending gas price gouging, taking on public corruption in East Chicago and defending the state's voter ID law and legislative prayer — show he successfully can handle the duties of the job. * * *

Carter may have an advantage over potential rivals since he never disbanded his campaign account after leaving office to work in the private sector and has nearly $100,000 cash on hand.

ILB: The ILB had a long Oct. 31, 2013 post on former AG Carter's role in the tobacco settlements.

Posted by Marcia Oddi on July 22, 2015 10:23 AM
Posted to Indiana Government

Ind. Decisions - More on: Ruling [3/30/15] by Federal Judge Sarah Evans Barker means three Dearborn Co. judges may face jury trial

Updating this ILB post from March 31st, which included a copy of Judge Barker's 3/30/15 45-page opinion, Daniel Suddeath of the New Albany News & Tribune reported Tuesday:

NEW ALBANY — The state will pay $124,500 to end a lawsuit brought by a man who wasn’t provided with a sign language interpreter during his mother’s criminal hearings in 2010 and 2011.

In March, the U.S. District Court Southern District of Indiana in New Albany found in favor of Steven Prakel after he claimed courts and judges in Dearborn County failed to hire an interpreter during his mother’s hearings related to operating a vehicle while intoxicated and driving on a suspended license charges.

Prakel, who is deaf, requested an interpreter, but had to eventually hire his own after the courts denied his petition. Attorneys for Prakel, including New Albany lawyer Matthew Lorch and the firm Stein & Vargas, argued the Dearborn courts and judges violated the Americans with Disabilities Act by failing to provide an interpreter for Prakel.

The defendants had argued Prakel’s mother, Carolyn Prakel, suffered “no cognizable injury as a result of her son’s failure to receive interpreter services” according to the lawsuit.

The settlement includes attorney fees and costs. The parties settled the case with no admission of liability by the judges.

According to the order filed June 22, 2015:
The parties entered into settlement negotiations and were able to resolve the matter in principle, subject to approval by the Governor.

Posted by Marcia Oddi on July 22, 2015 10:06 AM
Posted to Ind Fed D.Ct. Decisions

Ind. Gov't. - "State recommends local public hearing on pavilion alcohol license"

As mentioned near the end of this ILB post from Monday: "Pavilion Partners has applied for a liquor license, which will be considered by the state's Alcohol and Tobacco Commission on Tuesday in Indianapolis."

Late yesterday Dan Carden of the NWI Times reported in a long on the meeting:

INDIANAPOLIS | Supporters and opponents of a proposal to sell alcohol at a restored pavilion in Indiana Dunes State Park may get another chance to have their say.

The Indiana Alcohol and Tobacco Commission voted 4-0 on Tuesday to send the alcohol license application for Pavilion Partners LLC back to the Porter County Alcoholic Beverage Board for a second public hearing and board recommendation.

The local board deadlocked 2-2 following a June 11 public hearing where board members expressed frustration with the limited information they were provided and that only three residents commented on the proposal during the weekday morning meeting.

David Cook, chairman of the state alcohol licensing commission, said he's since received 264 letters and emails opposing the plan — many bemoaning the limited public notice and participation at the Porter County Board. * * *

Specifically, she said the application ownership listing differed from the company's pavilion lease with the Department of Natural Resources, a food sales estimate was tallied incorrectly and boxes required to be initialed were left blank.

She added that letters of opposition she's received also questioned the need for alcohol at the pavilion and the reputation of Charles Williams, primary owner of Pavilion Partners.

Cook said he plans to send a letter to the Porter County alcohol board urging it hold another public hearing on a corrected alcohol license application at a convenient time for maximum community participation.

Posted by Marcia Oddi on July 22, 2015 09:56 AM
Posted to Indiana Government

Ind. Decisions - 7th Circuit decides a second Indiana case yesterday

In USA v. Michael McClellan (ND Ind., Simon), a 24-page opinion, Judge Ripple writes:

After a jury trial, Michael McClellan was found guilty of one count of harboring an illegal alien, in violation of 8 U.S.C. § 1324(a)(1)(A)(iii); three counts of mail fraud, in violation of 18 U.S.C. § 1341; and one count of engaging in a monetary transaction involving criminally derived property, in violation of 18 U.S.C. § 1957. Because we believe that the evidence presented to the jury was a suffi cient basis on which to rest its verdicts, and because we believe that the jury instructions on the harboring count did not constitute plain error, we affirm the judgment of the district court.

Posted by Marcia Oddi on July 22, 2015 09:34 AM
Posted to Ind. (7th Cir.) Decisions

Tuesday, July 21, 2015

Ind. Courts - "The 7th Circuit just made it a lot easier to sue over data breaches"

Alison Frankel has just posted a long "On the Case" Reuters story on yesterday's 7th Circuit opinion in Hilary Remijas v. Neiman Marcus Group, LLC. A quote:

On Monday, a 7th Circuit panel reinstated a data breach class action against the retailer Neiman Marcus, holding that the theft of customers’ financial information was enough to satisfy constitutional standing requirements, even after Clapper.

“The Neiman Marcus customers should not have to wait until hackers commit identity theft or credit-card fraud in order to give the class standing, because there is an ‘objectively reasonable likelihood’ that such an injury will occur,” wrote Chief Judge Diane Wood for a panel that also included Judges Michael Kanne and John Tinder.

This is a really consequential decision. It’s the first time a federal appeals court has looked at a data breach class action that was dismissed because the trial judge said it fell short of Clapper standing requirements. The 7th Circuit said flatly that Clapper “does not, as the district court thought, foreclose any use whatsoever of future injuries to support Article III standing.” Sometimes, the opinion said – quoting a footnote from the Clapper opinion – standing can be established when there is a “substantial risk” of harm and plaintiffs “reasonably incur costs to mitigate or avoid that harm.”

According to the 7th Circuit, Neiman Marcus customers have standing to sue because are at substantial risk of fraudulent charges or identity theft. “Why else would hackers break into a store’s database and steal consumers’ private information?” the opinion said.

Posted by Marcia Oddi on July 21, 2015 05:30 PM
Posted to Ind. (7th Cir.) Decisions

Ind. Decisions - 7th Circuit decides Blagojevich appeal

This brief early story from the Chicago Tribune, by Jason Meosner, on the just released 7th Circuit opinion in US v. Blagojevich begins:

In a long-awaited ruling, a federal appeals court in Chicago on Tuesday threw out five of 18 counts against convicted former Gov. Rod Blagojevich, vacated his 14-year sentence and ordered him retried on the five counts.

While finding five of the counts invalid on technical grounds, the 7th Circuit U.S. Court of Appeals called the evidence against Blagojevich “overwhelming” and made clear that the former governor was not entitled to be released from prison in the meantime.

“It is not possible to call the 168 months unlawfully high for Blagojevich’s crimes, but the district judge should consider on remand whether it is the most appropriate sentence,” Judge Frank Easterbrook wrote in the unanimous opinion

This paragraph from page 5 of the 23-page opinion caught the ILB's eye:
But a problem in the way the instructions told the jury to consider the evidence requires us to vacate the convictions on counts that concern Blagojevich’s proposal to appoint Valerie Jarrett to the Senate in exchange for an appointment to the Cabinet. A jury could have found that Blagojevich asked the President-­elect for a private-­sector job, or for funds that he could control, but the instructions permitted the jury to convict even if it found that his only request of Sen. Obama was for a position in the Cabinet. The instructions treated all proposals alike. We conclude, however, that they are legally different: a proposal to trade one public act for another, a form of logrolling, is fundamentally unlike the swap of an official act for a private payment. [ILB emphasis]
The references to logrolling continue, including at p. 6-7:
A proposal to appoint a particular person to one office (say, the Cabinet) in exchange for someone else’s promise to appoint a different person to a different office (say, the Sen ate), is a common exercise in logrolling. We asked the prose cutor at oral argument if, before this case, logrolling had been the basis of a criminal conviction in the history of the United States. Counsel was unaware of any earlier conviction for an exchange of political favors. Our own research did not turn one up. It would be more than a little surprising to Members of Congress if the judiciary found in the Hobbs Act, or the mail fraud statute, a rule making everyday politics criminal.
And (skipping a couple, at p. 11:
Put to one side for a moment the fact that a position in the Cabinet carries a salary. Suppose that Blagojevich had asked, instead, that Sen. Obama commit himself to supporting a program to build new bridges and highways in Illinois as soon as he became President. Many politicians believe that public-­works projects promote their re-election. If the prosecutor is right that a public job counts as a private bene fit, then the benefit to a politician from improved chances of election to a paying job such as Governor—or a better pro spect of a lucrative career as a lobbyist after leaving office— also would be a private benefit, and we would be back to the proposition that all logrolling is criminal. Even a politician who asks another politician for favors only because he sin cerely believes that these favors assist his constituents could be condemned as a felon, because grateful constituents make their gratitude known by votes or post-­office employment.
The Tribune also has a valuable online respository of legal documents and admitted evidence for the Blagojevich trial.

Posted by Marcia Oddi on July 21, 2015 04:57 PM
Posted to Ind. (7th Cir.) Decisions

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

In CHARLES S. HOWLETT v. JEFFREY HACK, et al. (SD Ind., Pratt), a 12-page opinion, Chief Judge Wood writes:

In the early hours of October 25, 2009, the Indianapolis Metropolitan Police Department received a 911 call reporting that someone had broken into Jeffrey Hack’s house. Officer Steven Beasley responded to the call and eventually arrested Hack’s neighbor, Charles Howlett. Howlett was later charged with a variety of offenses related to the alleged break‐in, but a jury ultimately acquitted him. He then filed this suit, alleging false arrest and malicious prosecution on the part of Beasley, the City of Indianapolis, Hack, and several others. The district court granted summary judgment to all of the defendants. Howlett now appeals, though only with respect to Beasley, the City, and Hack. We affirm the district court’s resolution of all claims against Beasley and the City as well as the federal malicious prosecution claim against Hack. We conclude, however, that the court should have relinquished supplemental jurisdiction over the state‐law claims against Hack, and so we remand for that limited purpose. * * *

This resolves all of Howlett’s federal claims. What remain are his state‐law false‐arrest and malicious‐prosecution claims against Hack. In a situation like this one, where the state‐law claims have not been the focus of the litigation, the better practice is for the district court to relinquish its jurisdiction over them. See 28 U.S.C. § 1367(c)(3); Williams Electronics Games, Inc. v. Garrity, 479 F.3d 904, 907 (7th Cir. 2007) (describing the “presumption that if the federal claims drop out before trial, the district court should relinquish jurisdiction over the state‐law claims”). The district court offered no reason for declining to dismiss the remaining supplemental claims. In our view, that is what should have happened. Once the judgment is revised to show that these claims were dismissed without prejudice, Howlett will be free to seek to pursue them in state court.

III. We conclude with a few words about Howlett’s request that we certify two state‐law issues to the Indiana Supreme Court. He would like us to ask that court to rule on whether § 34‐11‐2‐4 or § 34‐11‐2‐6 governs the statute of limitations for false‐arrest claims against police officers, and on whether the filing of a criminal case by a prosecutor effectively bars a malicious‐prosecution claim against persons (including police officers) who supplied information that led to the prosecution. These questions do not, however, meet the criteria for certification found in Circuit Rule 52.

The present case does not turn on the answers to either of those questions. See State Farm Mut. Auto. Ins. Co. v. Pate, 275 F.3d 666, 672 (7th Cir. 2001). The statute of limitations question is not dispositive, because Howlett’s false‐arrest claim against Beasley and the City fails because probable cause supported the arrest, and because we are directing the district court to relinquish jurisdiction over the claim against Hack. We were able to resolve most of the malicious prosecution claims without having to delve into the issue of whether persons who supply information to a prosecutor can be liable for malicious prosecution. Finally, we have ensured that Howlett may pursue his remaining state‐law claims against Hack in state court. We see no reason to burden the Indiana Supreme Court with such matters, and we therefore deny Howlett’s request for certification.

IV. In summary, we conclude that even if Howlett’s statelaw false‐arrest claim against Beasley and the City is timely, it was properly dismissed because Beasley had probable cause to arrest Howlett. Beasley and the City are immune from Howlett’s state‐law malicious‐prosecution claim. Howlett’s § 1983 malicious‐prosecution claim against Beasley and the City cannot survive summary judgment because Howlett did not allege a separate constitutional injury and, even if he did, he has not submitted evidence that Beasley acted out of malice or lacked probable cause. Howlett cannot maintain his § 1983 malicious‐prosecution claim against Hack because Howlett has an adequate state remedy. Finally, we decline to certify any questions to the Indiana Supreme Court.

We therefore AFFIRM the judgment of the district court granting summary judgment to the defendants in all respects but one. We REMAND the case to the district court with instructions to change the dismissal of Howlett’s statelaw claims against Hack to one without prejudice, so that he may pursue them in state court.

Posted by Marcia Oddi on July 21, 2015 02:19 PM
Posted to Ind. (7th Cir.) Decisions

Courts - Ongoing Kentucky federal court trial of clerk who refused to issue same-sex marriage licenses

The ILB has just become aware of this trial.

A July 2nd Louisville Courier Journal story by Phillip M. Bailey reported:

The American Civil Liberties Union of Kentucky filed a lawsuit Thursday on behalf of four couples who were denied marriage licenses by the Rowan County clerk in the wake of the U.S. Supreme Court's historic decision legalizing same-sex marriages.

Democrat Kim Davis is among a handful of clerks who have refused to grant licenses to any couples in order to avoid handing them out to gays and lesbians. The suit alleges four couples in Rowan — two same-sex and two straight — who have sought marriage licenses are having their 14th Amendment rights violated as a result. * * *

Gov. Steve Beshear, a Democrat, had defended the state's ban on same-sex marriage, but after the High Court's ruling on June 26, he issued an executive order telling all state agencies and clerks to comply with it.

Casey County Clerk Casey Davis, a Republican, said late Wednesday evening on MSNBC that the governor should provide "some sort of relief" for clerks who have moral objections to the Supreme Court's ruling. He also likened Beshear's order to putting county clerks in "prison."

"I did not take an oath that said I would lay my personal feelings down to do this job nor will I ever do that," Casey Davis said on air. "As a matter of fact I said I would do this job to the best of my ability, so help me God, and the best of my ability does not go beyond what my conscience will allow me to do."

This July 14th AP story by Adam Beam reported:
ASHLAND, Ky. — A federal judge on Monday delayed a decision on whether a local official in Kentucky can use her religious beliefs to justify not issuing marriage licenses to same-sex couples. * * *

The lawsuit is the first of its kind in the country and could serve as a harbinger for dozens of other officials seeking to test the limits of the Supreme Court’s historic ruling.

But US District Judge David Bunning suspended the hearing until next Monday at the earliest because attorneys from the American Civil Liberties Union have still not formally notified Davis of the lawsuit against her.

‘‘The ACLU. . . aren’t really concerned in the marriages of their clients. The plaintiffs can get married in at least 117 if not 118 counties in the state of Kentucky if they want to,’’ said Roger Gannam, Davis’s attorney and the senior litigation counsel for Liberty Counsel, a group that defends religious freedom. [ILB Note: In Indiana you must get your marriage license in the county of one of the applicant's residence.]

‘‘This case was about targeting a person of faith to make a point that everyone must comply with the agenda to impose same-sex marriage on all of America,’’ Gannam said.

American Civil Liberties Union attorney Dan Cannon said his clients are not targeting anyone; they simply want to get a marriage license in the county where they live and pay taxes.

From a July 16th story by Linda B. Blackford in the Lexington Herald-Leader:
A federal judge will resume a hearing at 10 a.m. Monday on whether Kentucky's county clerks must issue marriage licenses to same-sex couples.

U.S. District Judge David Bunning will hear evidence in Covington, most likely from Rowan County Clerk Kim Davis, who has refused to issue any marriage licenses since June 26, when the U.S. Supreme Court ruled that same-sex marriage is legal.

The Kentucky chapter of the ACLU sued Davis on behalf of two same-sex couples and two opposite-sex couples from Rowan County. The ACLU asked for a preliminary injunction requiring Davis to issue licenses.

Davis did not appear at the first hearing Monday in Ashland because she had not received her summons, her lawyers said. * * *

Lawyers expect a decision by mid-August. Bunning said he would include in his decision a second lawsuit filed by a fifth Rowan County couple against Davis.

That couple, David Moore and David Ermold, sued Davis after shooting video of her refusal to give them a license. The video has been viewed 1.75 million times on YouTube.

Several county clerks have asked Gov. Steve Beshear to call a special legislative session to consider changes that would accommodate county clerks who don't want to issue licenses to same-sex couples, but he refused. Meanwhile, at least two legislators have prefiled bills for the regular legislative session that begins in January.

Rep. Addia Wuchner, R-Florence, prefiled a bill that would exempt clergy and judges from performing same-sex marriages, although no existing law compels them to do so. Rep. Stan Lee, R-Lexington, and David Meade, R-Stanford, prefiled a bill that would exempt county clerks from issuing licenses if it goes against their religious beliefs.

From the July 21st LCJ, some quotes from a long story reported by Mike Wynn:
COVINGTON, Ky. – Rowan County Clerk Kim Davis testified in federal court Monday that she prayed and fasted over her decision to refuse marriage licenses for same-sex couples and believes she is upholding her oath under the Constitution.

“It wasn’t just a spur-of-the-moment decision,” she said. “It was thought out, and I sought God on it.”

Davis’ refusal to provide licenses has drawn wide attention after the U.S. Supreme Court ruled last month that marriage is a fundamental right for all couples and Gov. Steve Beshear ordered clerks to comply with the decision.

On the stand Monday, Davis described herself as an Apostolic Christian who believes marriage is defined as the union of one man and one woman under the Bible — “God’s holy word” — and said she contemplated her policy for months beforehand.

She choked back tears at times as she argued that issuing licenses under her name would violate her religious beliefs, even if a deputy clerk performs the task in her stead.

“If I say they are authorized, I’m saying I agree with it, and I can’t,” Davis said.

Monday’s testimony marked a second hearing in the case, and U.S. District Court Judge David Bunning said he expects to have a decision around Aug. 11. Davis, meanwhile, is denying licenses to all couples to avoid discriminating against those in same-sex relationships, she said. * * *

Daniel Canon, an attorney working with the ACLU, said after the hearing that Davis’ reasoning, if applied statewide, would create chaos, allowing anyone to deny a license at any time based on personal religious beliefs. He called it an “unsustainable policy.”

“Why should the taxpaying citizens of Rowan County have to go anyplace else aside from their own county to get a marriage license,” he said. “Why should they be held to a different standard than anybody else?”

But, attorneys from the Liberty Council, a religious freedom organization representing Davis, say people can still obtain licenses in surrounding counties and that Davis’ First Amendment liberties protect her decision — even in public office. * * *

Davis is among a number of clerks in Kentucky who have cited concerns over issuing licenses, though most have continued providing them. Gov. Steve Beshear’s office has received letters of concern from 10 clerks so far.

Though Beshear says he will not call a special session of the General Assembly, some lawmakers say they want to pass legislation that would allow couples to obtain licenses directly from the state or apply online. And it’s unclear how Bunning’s ruling might impact other county clerks.

Posted by Marcia Oddi on July 21, 2015 01:17 PM
Posted to Courts in general

Ind. Decisions - Court of Appeals issues 1 opinion(s) today (and 8 NFP memorandum decisions)

For publication opinions today (1):

In The First Bank of Whiting, as Trustee of Trust dated 12/30/86 a/k/a Trust No. 1865 v. 524, LLC, a 13-page opinion, Judge Friedlander writes:

On August 27, 2012, 524 LLC (524) purchased two parcels of real property (the Parcels) in Lake County, Indiana at a tax sale. After the time for redemption expired on August 27, 2013, 524 filed a Petition for Issuance of Deed. The First Bank of Whiting (the Trustee), as Trustee of Trust Dated 12/30/86 a/k/a Trust No. 1865 (the Trust), filed an objection to 524’s petition. The Trust appeals the granting of 524’s petition and the entry of 7/17/2015 Order Directing the Auditor of Lake County, Indiana to issue Tax Deed with respect to the Parcels. The following issues are presented for review: 1. Did the tax sale notices substantially comply with the requirements of Ind. Code Ann. § 6-1.1-24-4,1 I.C. § 6-1.1-25- 4.5,2 and I.C. § 6-1.1-25-4.6?3 2. Was the trial court’s order to issue tax deeds untimely? * * *

We understand that the Trust contends that the mailings should have been sent to the Westchester address “c/o SSAY Corp” because that was the owner’s listed address in the auditor’s office. In this context, however, “SSAY Corp” was merely a conduit by which the required notices were to be delivered to the owner, the Trust. SSAY Corp. simply did not have an ownership or beneficial interest in the property. Thus, it did not matter whether SSAY Corp., as a conduit, received notice. It mattered only that the Trust did. Moreover, the beneficiary and the Trust, by the Trustee, appeared by counsel at the hearing to contest 524’s request. Under these circumstances, we conclude that the various notices substantially complied with the applicable rules and therefore that the Trust’s due process rights were not violated. * * *

Pursuant to the terms of the statute, the trial court must enter an order directing the county auditor to issue a tax deed within sixty-one days of the time of the filing of the petition for tax deed, but only after certain enumerated condition are met. The fifth condition is that the petitioner has complied with all requirements that entitle the petitioner to the requested deed. The language of subsection (b)(1)-(5) focuses upon affirmative steps that a petitioner must undertake and accomplish in order to be entitled to a tax deed. It would seem in this case that 524 accomplished all of those steps upon the August 28, 2013 filing of its motion asking the court to order the auditor to issue a tax deed for the Parcels. * * *

[W]e conclude that there is implicit in the statute a sixth condition, which is that the petitioner is legally entitled to a tax deed after completing all of the requisite steps. * * *

In the present case, the trial court’s rejection of the Trust’s challenge was simultaneous with its order directing the auditor of Lake County to issue the tax deed for the Parcels. Therefore, we conclude the order was timely pursuant to I.C. § 6-1.1-25-4.6(b).

NFP civil decisions today (2):

In the Matter of: A.B. and C.S. (Minor Children), Children Alleged to be in Need of Services, S.W. (Mother) and M.S. (Father) v. The Indiana Department of Child Services, et al (mem. dec.)

Westville Lounge, Ltd., d/b/a Crossroads, and Michael Ganz d/b/a Crossroads Lounge v. Walter Wesley (mem. dec.)

NFP criminal decisions today (6):

Danney R. Lowery v. State of Indiana (mem. dec.)

Clayton Labarr v. State of Indiana (mem. dec.)

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

Robert S. Kaufman v. State of Indiana (mem. dec.)

Shawn Wayne Kinningham v. State of Indiana (mem. dec.)

Cory Alan Neal v. State of Indiana (mem. dec.)

Posted by Marcia Oddi on July 21, 2015 12:45 PM
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Supreme Court issues disciplinary opinion today, a Fort Wayne attorney is disbarred

In In the Matter of: Steven J. Ouellette, a 4-page, per curiam opinion, the Court writes:

We find that Respondent, Steven Ouellette, committed attorney misconduct by converting client funds and failing to cooperate with the disciplinary process. For this misconduct, we conclude that Respondent should be disbarred. * * *

In January 2005, “Clients” retained Respondent to represent them in their Chapter 13 bankruptcy. In December 2010, the bankruptcy trustee issued a refund check for $8,725.35, payable to Clients. For almost two and one-half years, Respondent did not disclose the existence of this check to Clients. Instead, Respondent fraudulently endorsed and deposited the check into an account that was not his attorney trust account, and thereafter used the proceeds for his own personal purposes. When the trustee’s final report (issued in June 2013) revealed the issuance of the refund check, Clients confronted Respondent, and Respondent promised to repay the amount to Clients. Respondent later issued a check in the amount of $8,725.35, drawn on an account other than his attorney trust account, but Clients were unable to negotiate the check due to insufficient funds in the account. When Clients later retained successor counsel, Respondent refused to return Clients’ file.

Based on the above events, Clients filed a disciplinary grievance against Respondent in October 2013. Respondent refused to cooperate with the Commission’s investigation and demands for information. Respondent has been suspended under a separate cause since August 2014 due to his noncooperation with the Commission. * * *

Respondent already is under indefinite suspension for failure to cooperate with the Commission’s investigation. For Respondent’s professional misconduct, the Court disbars Respondent from the practice of law in this state effective immediately. Respondent shall fulfill all the duties of a disbarred attorney under Admission and Discipline Rule 23(26). The costs of this proceeding are assessed against Respondent, and the hearing officer appointed in this case is discharged.

Posted by Marcia Oddi on July 21, 2015 11:18 AM
Posted to Ind. Sup.Ct. Decisions

Ind. Courts - "First veteran graduates from special St. Joseph County court"

Christian Sheckler of the South Bend Tribune reports on "the first graduate of the St. Joseph County Veterans Court" - some quotes:

The veterans court, established in 2013 and run through the superior court, is designed to help military veterans avoid jail time and criminal records when they run into trouble with the law, diverting them instead to an 18-month program that requires them to undergo counseling, drug testing and other requirements. * * *

[Air Force veteran Wayne] Kuritz was arrested in October 2013 for growing marijuana. He could have served six months in jail, but when he reached a plea agreement with prosecutors he was deemed eligible for the veterans court. He was able to keep his job throughout the 18-month program and have his felony wiped from his record.

"The program is good for vets. It's a more compassionate way of dealing with them," he said. "It was much better that I was outside, doing some good, than sitting in jail doing nothing with my life."

About 15 other veterans are working their way through the program. Along with the required counseling and drug testing, veterans in the program may be required to obtain a high school diploma, if they did not already graduate, and maintain steady employment, said Tara Paiano, a supervisory probation officer and coordinator of the county's special "problem-solving" courts.

Posted by Marcia Oddi on July 21, 2015 09:47 AM
Posted to Indiana Courts

Ind. Courts - Exterior repairs to Tippecanoe County Courthouse planned

Hannah Smith Kiefer reports in the Lafayette Journal&Courier:

Workers soon will study the Tippecanoe County Courthouse to see the extent of exterior damages.

The Tippecanoe County Commissioners on Monday approved a $25,000 feasibility study regarding the repairs. The contract was awarded to Arsee Engineers Inc., which Commissioner David Byers said has a history of working on older courthouses. The study will look at the large cupola and four smaller cupolas, the flat roof and the fountain, among other things. Byers said the fountain has a leak that can lose 20,000 to 30,000 gallons of water per year.

The study will begin in the next week or two, Byers said, and it will hopefully conclude by September. That way officials can build repair costs into next year’s budget. Work may begin this year, depending on funds. Byers said the repairs will likely take a year or more.

Posted by Marcia Oddi on July 21, 2015 09:39 AM
Posted to Indiana Courts

Ind. Courts - "Greene County's First Magistrate Judge Sworn In"

There are plenty of photos in this story from last Friday, reported by Anna Rochelle, Editor, Greene County Daily World. A few quotes:

Greene County's first magistrate judge was sworn in during a ceremony in the Greene County Courthouse on Thursday afternoon.

Judge Lucas Rudisill was introduced by Greene Circuit Court Judge Erik "Chip" Allen and Greene Superior Court Judge Dena Martin to a standing-room-only crowd gathered to witness the historic moment for the county's court system.

The addition of a magistrate court promises to relieve the growing caseload burdening both existing Greene County courts. * * *

Earlier this year, seven Indiana counties were given approval to appoint new magistrate judges to serve their local courts and the legislation was signed by the governor on May 5. The new law, which went into effect on July 1, also expanded the abilities of a magistrate judge, allowing them to approve criminal plea agreements, approve settlements in civil matters, and approve dissolutions and other agreements in domestic relations and paternity actions.

A magistrate must be admitted to practice law in Indiana but may not engage in the practice of law while holding the office of magistrate. Under Indiana law, a magistrate may perform a number of duties including: administer oaths, solemnize marriages, take and certify affidavits and depositions, order subpoenas, issue warrants, set bail, enforce court rules, conduct various hearings and trials, enter orders, conduct sentencing hearings and impose sentences, and issue judgments in small claims cases and issue protective orders to prevent domestic or family violence.

Unlike the county's two current judge positions, the new magistrate is an appointed position, selected by the Greene and Superior Court judges who will oversee the activities of the magistrate.

One photo from the story is captioned:
This is a photo taken a few months ago of the posting of one day's docket of cases scheduled to be heard in Greene Circuit and Greene Superior Courts. The length of the schedule leaves little doubt that local courts have been bearing a heavy case load. (Photo by Anna Rochelle)

Posted by Marcia Oddi on July 21, 2015 09:27 AM
Posted to Indiana Courts

Monday, July 20, 2015

Ind. Decisions - 7th Circuit decides two Indiana cases today

In Kent Higgins v. Koch Development Corporation (SD Ind., Young), a 13-page opinion, Judge Flaum writes:

After the district court disqualified plaintiff Kent Higgins’s causation expert—enlisted to prove that Higgins developed asthma and reactive airways dysfunction syndrome as a consequence of inhaling chlorine gas at an amusement park—he argued that he did not need an expert to prove negligence at all. Alternatively, Higgins argued that his treating physician could serve as such an expert. The district court disagreed, considering the causation issue too complex for an unassisted jury, and deeming Higgins’s treating physician’s qualifications and methodology too uncertain to permit her to opine on such matters. Consequently, the district court granted summary judgment in favor of the defendant. We affirm. * * *

In this diversity action, Indiana law governs whether an expert is needed to prove causation. See Wallace v. McGlothan, 606 F.3d 410, 419–20 (7th Cir. 2010). Under Indiana law, proving negligence in a case like this one requires proof of both general and specific (or individual) causation. 7‐Eleven, Inc. v. Bowens, 857 N.E.2d 382, 389 (Ind. Ct. App. 2006). The law of the Seventh Circuit acknowledges this same dichotomy. See Myers v. Ill. Cent. R.R. Co., 629 F.3d 639, 641–42 (7th Cir. 2010). General causation refers to “whether the substance at issue had the capacity to cause the harm alleged, while ‘individual causation’ refers to whether a particular individual suffers from a particular ailment as a result of exposure to a substance.” 7‐Eleven, 857 N.E.2d at 389. The district court concluded that, without an appropriate expert, Higgins could not establish specific causation—that is, that the inhalation of chemical fumes caused his health conditions. Higgins, however, maintains that he does not need an expert to establish that the incident at the Bahari River sparked his ailments. * * *

For all of these reasons, we conclude that a causation expert is required in this case.

We therefore turn to an evaluation of Higgins’s contention that Dr. Haacke can serve as such an expert. * * *

Higgins also contends that because Dr. Haacke has twenty years of experience as a board certified pulmonologist, “[i]t goes without saying she understands … reactive airways dysfunction syndrome.” Again, Higgins seems to misunderstand the requirements of Daubert and Rule 702.

As Judge Tinder articulated when he was a district judge in the Southern District of Indiana, although a doctor may have “experience diagnosing and treating asthma … that does not make him qualified to ‘assess its genesis.’” Cunningham v. Masterwear, Inc., 2007 WL 1164832, at *10 (S.D. Ind. Apr. 19, 2007). Higgins, however, put forth no evidence that Dr. Haacke has ever treated another patient for chlorine gas exposure or has any training in toxicology. Nor has Higgins established that Dr. Haacke employed a reliable methodology in forming her causation opinion (even assuming she is qualified to do so). The record demonstrates that Dr. Haacke essentially diagnosed Higgins after listening to his own description of his symptoms and the events at Holiday World—some fourteen months after the fact—and after looking at the results (though not the underlying data) of the pulmonary function study conducted by another doctor the year before. But the record is silent on whether Dr. Haacke considered other possible causes of Higgins’s ailments and, if so, how and why she ruled them out. * * *

“Many times we have emphasized that expertsʹ work is admissible only to the extent it is reasoned, uses the methods of the discipline, and is founded on data.” Lang v. Kohl’s Food Stores, Inc., 217 F.3d 919, 924 (7th Cir. 2000). Here, Higgins simply failed to demonstrate this to be true with respect to Dr. Haacke’s causation opinion. Accordingly, we conclude that it was well within the district court’s discretion to deem Dr. Haacke unqualified to proffer expert testimony, even setting aside Higgins’s non‐compliance with Rule 26.

III. Conclusion For the foregoing reasons, we AFFIRM the district court’s grant of summary judgment.

In USA v. Keon Thomas (and Styles Taylor) (ND Ind., Moody), a 13-page opinion, Judge Posner concludes:
The facts regarding Taylor’s personal history, if true (they have not yet been submitted to full evidentiary procedure), are possible grounds for mitigation—for reducing his sentence from life to a term of years. For they suggest that external forces beyond his ability to control created cognitive and psychological impairments that greatly diminished his ability to resist engaging in serious criminal activity. When substantial grounds for mitigation are presented, the sentencing judge must explain his reasons for rejecting them, see, e.g., United States v. Morris, 775 F.3d 882, 886–88 (7th Cir. 2015), and this the judge failed to do. The government agrees that Taylor’s sentence must therefore be vacated and the case remanded for resentencing. Although Thomas’s upbringing was not as awful as Taylor’s, it was similar enough to persuade the government that he too is entitled to be resentenced. In all other respects (including rulings that we have not discussed because the defendants’ challenges to them are plainly devoid of merit) the judgments are affirmed. AFFIRMED IN PART, REVERSED IN PART, AND REMANDED

Posted by Marcia Oddi on July 20, 2015 05:55 PM
Posted to Ind. (7th Cir.) Decisions

Ind. Decisions - Court of Appeals issues 2 opinion(s) today (and 12 NFP memorandum decisions)

For publication opinions today (2):

In In the Matter of the Civil Commitment of T.D. v. Eskenazi Health Midtown Community Mental Health Center, an 11page opinion, Judge Pyle writes:

Appellant-Respondent, T.D., appeals the trial court’s order granting Appellee-Petitioner, Eskenazi Health Midtown Community Mental Health Center’s (“the Hospital”), application for the emergency detention and involuntary civil commitment of T.D. based on her mental illness. She argues that the trial court erred in ordering her regular commitment because there was insufficient evidence that she was “gravely disabled,” as the Hospital was required by statute to prove. The only evidence in the record supporting her commitment was one isolated incident of unusual behavior, the fact that T.D. lived in a hotel, her psychiatrist’s recommendation, and her refusal to seek treatment. Because this did not constitute clear and convincing evidence to support her involuntary commitment, we reverse the trial court’s decision and remand for the trial court to vacate the commitment.
In Charles R. Ferguson v. The Estate of Lera V. Ferguson, a 10-page opinion, Judge Bradford writes:
Lera V. Ferguson passed away intestate in 2013 and was survived by her two children and sole heirs, Appellant Charles Ferguson and Nancy Mosson. Mosson was appointed personal representative of Lera’s estate (“the Estate”). Charles eventually filed a claim for over one million dollars against the Estate for services provided to Lera over her lifetime, a claim that Mosson disallowed.

Meanwhile, Mosson had petitioned the trial court for authority to sell real estate, namely a parcel that was the family farm (“the Farm”). Charles objected to Mosson’s petition and requested the trial court to set a bond sufficient to stay the sale. After a hearing, the trial court ordered Charles to deliver a surety bond of $1,133,833.71, which represented the amount of his claim plus some administrative costs, within thirty days in order to stay the sale of the Farm. Charles now appeals, contending that the trial court erred in setting his bond. The Estate argues that Charles’s interlocutory appeal should be dismissed because the trial court’s order did not give him an interlocutory appeal of right and he did not follow the procedures for discretionary interlocutory appeals. Because we conclude that Charles’s interlocutory appeal was properly taken and that the trial court abused its discretion in setting the amount of Charles’s bond, we reverse and remand with instructions.

NFP civil decisions today (3):

Raymond D. White v. Yvonne R. White (mem. dec.)

In re: the adoption of A.A., A.A. v. D.J. (mem. dec.)

In the Matter of the Termination of the Parent-Child Relationship of E.B., Mother, C.T., Father, and K.B., Child, C.T. v. Ind. Dept. of Child Services (mem. dec.)

NFP criminal decisions today (9):

Sherri Lane v. State of Indiana (mem. dec.)

Rodney S. Perry v. State of Indiana (mem. dec.)

Paul Scott Campbell v. State of Indiana (mem. dec.)

Jacob McDaniel v. State of Indiana (mem. dec.)

Kerry D. Ketchem v. State of Indiana (mem. dec.)

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

Trent Fitzmaurice v. State of Indiana (mem. dec.)

Deandre Averitte v. State of Indiana (mem. dec.)

William Eugene Slaton v. State of Indiana (mem. dec.)

Posted by Marcia Oddi on July 20, 2015 01:06 PM
Posted to Ind. App.Ct. Decisions