Wednesday, October 22, 2014
Courts - Texas Supreme Court on Electronic Briefs
The Texas Supreme Court has a number of guides relating to elctgronic briefs and e-formatting. Check it out.
Also, see this post from Lawyerist headed "5 Tips For Writing Briefs For Tablets."
Ind. Gov't. - AG's office answers reporter's questions on funding of state's defense of the marriage law
NUVO today has a long Q&A by reporter Amber Stearns with Bryan Corbin, spokesman for the AG’s office. Some quotes:
It has been just over two weeks since the U.S. Supreme Court rejected Indiana’s cert petition and effectively changed marriage equality in the state. Although the dust has settled and marriage rights are now recognized, Indiana Attorney General Greg Zoeller continues to field criticism and questions about the role his office played in defending the now outdated marriage law and all costs associated with that defense.ILB: Some other areas that might have been explored: First, there are several other attorneys in the Solicitor General's office, which is headed by Mr. Fisher. Over the past several years, the Solicitor General's office has authored and submitted several dozen amicus briefs in non-Indiana same-sex marriage cases around the country, as well as in the earlier cases argued before the SCOTUS. What proportion of that office's time has been devoted to this issue? Was travel involved?
Bryan Corbin, spokesman for the AG’s office, took the time to answer specific questions about the role of the Attorney General’s office in one of the most heated debates to travel through the federal court system.
NUVO: You have stated several times that the money spent to defend the state’s traditional marriage statue was within the Attorney General’s budget.
Bryan Corbin: That is correct. The operations of the Attorney General’s Office are funded out of our annual budget of approximately $19 million that the Legislature approved in April 2013 and that funds our legal representation in all our cases.
NUVO: What part of the AG’s budget specifically does this come out of? What is it typically used for?
Corbin: Approximately $17.7 million of our overall budget is for personnel (attorneys, paralegals, law clerks, staff) who constitute state government’s law firm: the Attorney General’s Office. Another $1.2 million is for operating expenses. Together this covers our work representing the State in court in approximately 2,700 civil lawsuits and 1,300 new criminal appeals each year, including the case you asked about.
NUVO: Can you give a specific figure from the budget line item that was spent specifically on the marriage equality fight?
Corbin: As the state government’s lawyer whose budget is determined by the Legislature in advance, we do not track billable hours per case or charge our state government client billable hours like a private law firm would. Individual cases do not have dedicated or individual line items in the budget; we fund our attorneys’ salaries from the personnel budget and all non-salary expenses from the operation budget for all cases. Our in-house salaried attorney who was assigned to this case would have been paid the same salary whether plaintiffs’ lawyers filed this lawsuit or not. * * *
NUVO: You have also stated on several occasions stated that no outside counsel with billable hours was used to defend Indiana’s marriage law.
Corbin: Correct. No outside counsel was used. * * *
NUVO: How many people in the AG’s office were dedicated to this project? Were they exclusive or was the case a part of their regular workload?
Corbin: No one person was devoted “exclusively” to the marriage lawsuit. Solicitor General Thomas M. Fisher was the salaried attorney in our office who entered an appearance in this case, but as noted during the six-month duration of this case he continued to work on his caseload of other, unrelated cases. He was assisted by other AG’s Office staff members, amid their duties in many other cases that constitute our agency caseload.
NUVO: Was all of the work specific to the defense of Indiana’s marriage law specific to the Office of the Solicitor General or was some of the work delegated to different departments?
Corbin: The Solicitor General Division is a division of the Attorney General’s Office, not an office in itself. The Solicitor General was the attorney who entered an appearance in the Baskin litigation, with assistance by others in our office.
Second, not touched on in the Q&As trying to get a handle on the AG's budget is that many state agencies must reimburse the AG's office for legal representation. In addition, the AG's office does not represent certain agencies, these agencies have their own legal budgets.
Finally, a look at the state contracts database shows that the AG's office contracts for millions of dollars in legal services from solo attorneys or firms such as former AG Steven Carter, Lewis & Wilkins PC, and Church Church Hittle & Antrim. Are these contracts part of the $19 million?
Courts - "Justice, it may be said, may not be blind, but it is sometimes inscrutable."
So concludes Lyle Denniston's story in Constitution Daily, wherein "Denniston, the National Constitution Center’s adviser on constitutional literacy, explains how the Supreme Court’s recent actions without comments in major decisions may appear to be mysterious but are hardly uncommon."
Courts - "Pennsylvania Supreme Court Justice McCaffery Suspended over Porn Emails "
Well, things appear to be a mess in Pennsylvania's Supreme Court. Just a few short quotes from a long story today, by Angela Couloumbis, in Governing:
The Pennsylvania Supreme Court suspended Justice Seamus P. McCaffery on Monday amid allegations that he sent pornographic e-mails and threatened to entangle a fellow justice in the widening scandal after vowing not to go "down alone."
In a sharply worded order, four of the seven justices, citing an "immediate need" to protect the integrity of the state's courts, suspended McCaffery with pay on "an interim basis" from his $200,205-a-year job.
The court also ordered the state's Judicial Conduct Board to determine within 30 days if there is probable cause to file formal misconduct charges against the justice. The board handles judicial ethics complaints and has launched an investigation into McCaffery's e-mails. * * *
The order followed a tumultuous two weeks for the high court that has included allegations of personal vendettas and stunning accusations. It also marked the latest chapter in a scandal over the sharing of sexually explicit e-mails that started in the Attorney General's Office and spread to the Supreme Court. * * *
McCaffery became the second judge in 21/2 years to be suspended by colleagues. In May 2012, Joan Orie Melvin was suspended after she was indicted on corruption charges. She resigned from the court a year later, after being convicted and shortly before her sentencing.
Ind. Gov't. - "Public debate Tuesday in Lawrence about gay marriage's legality in Kansas" features Indiana Deputy AG
From the Lawrence Kansas Journal-World, a story by Elliot Hughes that begins:
At public debate Tuesday in Lawrence about gay marriage's legality in Kansas, a local attorney and Indiana's solicitor general predictably shared little common ground. But where they did come to agreement was where future court decisions would come down on the matter.
The consensus: It doesn't look good for states defending same-sex marriage bans.
"I assume that if a state supreme court or a circuit rules in favor of states, that the (U.S.) Supreme Court's hand will be forced, and I'm not optimistic about the state's chances in that event," said Thomas Fisher, who as Indiana's solicitor general argued in vain to preserve his state's ban before the Seventh Circuit Court of Appeals this past summer.
[Fisher] was joined at the Lawrence forum by attorney and Kansas University adjunct faculty member David Brown, as well as about 50 audience members at the Dole Institute of Politics to debate whether gay marriage should be governed by constitutional rights or states' rights. * * *
Brown, who specializes in working with same-sex couples in Kansas, stood in for a sick Roberta Kaplan, who represented Edie Windsor in the landmark United States v. Windsor case that struck down a section of the Defense of Marriage Act in 2013.
[Fisher] repeatedly framed same-sex marriage as an aspect of society that states have the right to regulate. He said states should prefer children to be raised by their biological parents, and that codifying marriage as one man and one woman is a way of encouraging that practice.
But Brown dismissed those arguments, saying plenty of heterosexual couples who are unable to have children, or do not intend to, are still legally allowed to wed. Marriage bans are simply a matter of equality and rights, he argued.
"The definition of marriage is it's a civil contract that entitles you to certain benefits and protections by law. Whether you're a heterosexual couple or a same-sex couple, that doesn't matter. You should be entitled to the same benefits."
Ind. Decisions - "Justices overturn pot verdict based on illegal search"
INDIANAPOLIS – The Indiana Supreme Court, finding that Fort Wayne police illegally entered a man’s home in 2012, on Tuesday reversed the marijuana convictions that resulted.
Police violated Jonathan Carpenter’s right against illegal search and seizure after they responded to a dogfight in the yard, the ruling said.
Carpenter already served a two-year prison sentence. * * *
Police and animal control officers arrived at the house in July 2012 after receiving a report of dogs fighting in the yard. A neighbor said the owner wasn’t home and gave the first officer to arrive the owner’s cellphone number.
The animal control officer jumped a 3-foot-high fence to break up the fight. Three of the four dogs were quickly rounded up, but the last dog ran inside the house.
The animal control officer and a Fort Wayne police officer then entered the home and found marijuana plants in a partially closed room.
Police generally must have an exigent or emergency circumstance to enter a home without a warrant.
Carpenter was charged with multiple felonies, as Allen Superior Court Judge Wendy Davis refused to suppress the evidence of the marijuana. The Indiana Court of Appeals agreed.
However, the Indiana Supreme Court said police did not have a reason to enter since objective evidence showed no one was at home, and any threat of danger to the public was slight since the dog was confined in a fenced yard secured by a locked gate.
Further, the police could have simply shut the sliding door through which the dogs gained access.
“The dogs’ aggressive behavior and bloodied appearance simply were not enough to give rise to a reasonable belief that a person was in danger of imminent harm or in need of immediate assistance,” the ruling said, pointing out that the officers could have called the phone number the neighbor had given to contact the owner.
Ind. Decisions - Court of Appeals issues 5 today (and 10 NFP)
ILB Note: Yesterday one posted decision was erroneously labeled NFP on the Court's website; today two NFP opinions were erroneously categorized as for publication.
For publication opinions today (5):
In Margaret Dawson v. Thornton's, Inc. , a 9-page opinion, Judge Brown writes:
The issue on appeal is whether the trial court erred or abused its discretion in not instructing the jury regarding spoliation of evidence. * * *In In Re The Paternity of B.J.N. by Next Friend, E.M. v. K.N. and On Consolidated Appeal, In Re the Guardianship of B.J.N., E.M. v. P.C., a 13-page opinion, Judge Baker writes:
In Cahoon v. Cummings, the Indiana Supreme Court stated that “[s]poliation of evidence consists of ‘the intentional destruction, mutilation, alteration, or concealment of evidence, usually a document. If proved, spoliation may be used to establish that the evidence was unfavorable to the party responsible.’” * * *
The instruction proposed by Dawson was not supported by the admitted evidence. The record reveals that, at some point at least four weeks after the accident, Dawson returned to Thornton’s, inspected the mat, and attempted to take a photograph of the mat using her cell phone, but the photograph was not usable. In addition, while Dawson’s previous counsel sent a letter to Thornton’s requesting the store’s video recording of the incident, no request was made with respect to the mat. Dawson tripped on the mat in Thornton’s on October 22, 2010, and, according to the testimony of the manager at Thornton’s and an interrogatory answer provided by Thornton’s, the mat was replaced in March 2012, over one year and four months after Dawson’s fall.1 During this period, Dawson and her counsel had ample opportunity to inspect and document the condition of the mat upon which she tripped, have an expert inspect the mat, or request that the mat be preserved. Further, Dawson has not made a showing that Thornton’s concealed or suppressed any of the facts or evidence regarding the mat from her. * * *
Based upon the record, we cannot say the trial court erred or abused its discretion in not giving Dawson’s proposed instruction regarding spoliation of evidence or that the substantial rights of Dawson were prejudiced by the court not giving her proposed instruction. ... Additionally, we decline Dawson’s request to recognize an independent cause of action for spoliation of evidence.
This consolidated appeal arises out of two orders issued by the Decatur County Circuit Court (Decatur Court) on April 16, 2013, and November 8, 2013, respectively, and one order issued by the Hendricks County Circuit Court (Hendricks Court) on February 4, 2014. E.M. (Father) raises three issues: (1) whether the Decatur Court erred when it denied his motion to vacate guardianship for lack of jurisdiction; (2) whether the Decatur Court abused its discretion when it issued an order restricting Father’s parenting time without finding that Father posed a risk of harm to his child; and (3) whether the Hendricks Court erred when it dismissed his action and ordered payment of attorney fees. Finding that the Decatur Court had jurisdiction to enter its guardianship order and did not abuse its discretion in ordering restricted parenting time, we affirm the judgment of the Decatur Court. Finding that the Hendricks Court did not err in dismissing Father’s action, but that it erred in awarding attorney fees, we affirm in part and reverse in part the judgment of the Hendricks Court.In In the Matter of the Termination of the Parent-Child Relationship of: R.A. and S.W. v. The Indiana Department of Child Services, a 19-page, 2-1 opinion, Chief Judge Vaidik writes:
S.W. (“Father”) learned that he was R.A.’s father while incarcerated awaiting trial on a number of criminal charges. R.A. had previously been adjudicated a child in need of services (CHINS), and Father was ordered to participate in a variety of services upon his release. Six months later, however—while Father was still detained pending trial—a petition was filed to terminate his parental rights. At the time of the termination hearings, Father remained in pretrial detention, and his availability to parent R.A. in the future was uncertain. However, Father’s sister was available to care for R.A. and had already begun visiting with R.A. The trial court ultimately terminated Father’s parental rights, and he appeals.In JPMorgan Chase Bank, N.A,. v. Claybridge Homeowners Associationi, Inc., v. Deborah M. Walton, et al., a 22-page opinion, Judge Brown writes:
We conclude that a number of the trial court’s findings are not supported by the evidence, and setting those findings aside, we conclude that there is insufficient evidence to support the trial court’s decision to terminate the parent-child relationship. We therefore reverse. * * *
MAY, J. concurs.
FRIEDLANDER, J. dissents with separate opinion [which begins, at p. 16] With but one minor exception, I believe the trial court’s findings are supported by the evidence and that the evidence supports termination of S.W.’s parental rights to R.A. Therefore, I would affirm the trial court’s judgment and respectfully dissent from the majority’s decision to do otherwise. * * *
Our Supreme Court has acknowledged that a trial court may consider past behavior as the best predictor of a parent’s future behavior. See In re E.M., 4 N.E.3d 636 (Ind. 2014). Moreover, in this case I am particularly mindful of one the guiding considerations when called upon to review a termination of parental rights, i.e., that “a trial court need not wait until a child is irreversibly harmed before terminating the parent-child relationship.” In re N.Q., 996 N.E.2d 385, 391 (Ind. Ct. App. 2013). S.W.’s actions and failures to act have foreshadowed what is to come. Moreover, the conclusion that the continued presence of S.W. in R.A.’s life will not be in R.A.’s best interest is supported by the evidence of what S.W. has done, and refused to do, thus far. Upon this basis, I believe the petition to terminate is sustainable on this record, and respectfully dissent from the decision to reverse it.
JPMorgan Chase Bank, N.A., (“JPMorgan”) appeals the trial court’s order of January 16, 2014, denying its December 19, 2013 “Combined Motion to Intervene, to Stay January 9, 2014 Sheriff Sale, to Vacate Order of Sale, to Vacate the May 27, 2010 Summary Judgment and Decree of Foreclosure, and Request for Expedited Hearing on Motion.” Appellant’s Appendix at 1. JPMorgan raises three issues, which we consolidate and restate as whether the court erred in denying its motion. We reverse and remand. * * *In Larracuenta R. Panfil v. Ralph E. Fell , a 14-page opinion, Judge Brown writes:
Based upon the record and under the circumstances, and keeping in mind that the timeliness requirement should not be employed as a tool to sanction prospective intervenors but to insure the original parties are not prejudiced by an intervenor’s failure to apply sooner, we conclude that the JPMorgan as the prospective intervenor met its burden under Trial Rule 24(A) and that its motion was not untimely. Accordingly, we reverse the trial court’s denial of JPMorgan’s motion to intervene and remand for further proceedings consistent with this opinion.
Larracuenta R. Panfil (“Mother”) appeals the trial court’s February 7, 2014 order terminating the obligation of Ralph E. Fell (“Father”) to pay post-secondary educational expenses for K.F. (“Daughter”) and the court’s denial of Mother’s motion to correct errors. Mother raises two issues which we revise and restate as whether the court erred or abused its discretion in entering the February 7, 2014 order and denying her motion to correct errors. We affirm. * * *
In this case, the record reveals that the dissolution decree incorporated an agreement of the parties which established in part that Father would pay for one-third of Daughter’s expenses for her college education. The court later modified its order to condition Father’s educational support obligation on Daughter “maintaining a grade point average of 2.1 and not being placed on probation or being subject to any disciplinary action for violation of school rules or policies.” Appellant’s Appendix at 38. Daughter copied three comments from other students in completing an assignment for an online course. The instructor for the course elected to give Daughter a failing grade for the course rather than report her to the Dean of Students. According to Daughter, the instructor elected this route because Daughter “was doing well in the course and the plagiarism was minimal . . . .” Transcript at 19. Clearly, the F she received was a disciplinary action for plagiarism.
The fact that the instructor and University did not pursue a formal action against Daughter is not dispositive. The court found that Daughter’s behavior was “clearly the type she was put on notice as having the potential to relieve Father of an obligation to contribute to the cost of her college education.” * * *
Daughter was subject to punitive grading in this case. We will not disturb the court’s determination that Daughter was subject to a disciplinary action for the purpose of, or as contemplated by, the court’s July 30, 2012 order.
Based upon the record and Support Guideline 8, and keeping in mind that we place a strong emphasis on trial court discretion in determining child support obligations, we cannot say that the trial court erred or abused its discretion in terminating Father’s educational support obligation related to Daughter. * * *
BRADFORD, J., concurs.
BARNES, J., concurs with separate opinion. [which concludes] Although Father’s apparent exuberance to get out from underneath his support obligation is troublesome, I must agree with the majority that the result is legally mandated, but practically repugnant.
NFP civil opinions today (2):
NFP criminal opinions today (8):
Ind. Decisions - Supreme Court decides one today
In Gary Wayne Oswalt v. State of Indiana, a 10-page, 5-0 opinion (including J.Massa concurring in result), Chief Justice Rush writes:
Under Indiana’s “exhaustion rule,” parties may seek appellate review of for-cause challenges to prospective jurors only if they have exhausted their peremptory challenges. But what if they use their last peremptory challenge for its traditional purpose of striking a candidate they consider undesirable, instead of using it to cure the trial court’s refusal to strike an allegedly incompetent one for cause? The State argues that doing so violates the exhaustion rule, thus waiving appellate review. We disagree and hold as a matter of first impression that parties satisfy the exhaustion rule the moment they use their final peremptory challenge—regardless of whom they strike. We also hold that if parties fully comply with the exhaustion rule and demonstrate they were unable to remove any prospective juror for lack of peremptories, appellate courts may review denial of any motion to strike for cause, regardless of whether a challenged juror actually served on the jury. Our holding preserves the fundamental policy of the exhaustion rule while recognizing the cherished status of peremptory challenges. Here, Defendant preserved appellate review of three for-cause challenges, but because the trial court was within its discretion to deny all of them, we affirm his conviction. * * *
Oswalt satisfied the exhaustion rule and thus preserved appellate review of his motions to strike Jurors 7, 13, and 28 for cause—but he has not carried his burden to show the trial court abused its discretion in denying his motions. We therefore affirm his conviction. On all other grounds, we summarily affirm the decision by the Court of Appeals.
Tuesday, October 21, 2014
Ind. Decsions - 7th Circuit decides one today
In USA v. Roderick Sinclair (ND Ind., Miller), a 23-page opinion, Judge Sykes writes:
Sinclair appealed, raising two issues. First, he argues that the district court violated his Sixth Amendment right to counsel of his choice by denying a continuance to allow his family to hire a private attorney. Second, he challenges the court’s decision not to group the drug and felon-in-possession counts.
We affirm. The Sixth Amendment entitles a criminal defendant to retain counsel of his choice, see United States v. Gonzalez-Lopez, 548 U.S. 140, 144 (2006), but the trial court has broad discretion in addressing a continuance motion based on the right. The court is entitled to weigh the defendant’s claim against the need to ensure the fair and efficient administration of justice. The judge did that here, and we find no abuse of discretion in his decision to deny the requested continuance.
We also find no error in Sinclair’s sentence. In the ordinary case, the drug and felon-in-possession counts are treated as specific offense characteristics of each other, see U.S.S.G. §§ 2D1.1(b)(1), 2K2.1(b)(6)(B), triggering offense-level enhancements and thus the grouping rule of § 3D1.2(c). But the guidelines specifically provide that enhancements for firearm possession do not apply when the defendant is also convicted of violating § 924(c), which carries a mandatory consecutive sentence. See id. § 2K2.4 cmt. n.4. Because the otherwise applicable offense-characteristic enhancements were not applied here, there was no basis for grouping under § 3D1.2(c).
Ind. Decisions - Supreme Court decides one today [Updated]
In Jonathan D. Carpenter v. State of Indiana, a 7-page, 5-0 opinion, Justice Massa writes:
Jonathan Carpenter appeals the admission of evidence recovered from his home after officers entered it without a warrant in pursuit of an aggressive and bloody dog. We are asked to decide whether that entry was reasonable. Because we find it was not, we hold that the search violated Article 1, Section 11 of our Indiana Constitution and thus we reverse the trial court. * * *[Updated at 6:26 PM] If you check the link to today's opinion now you will notice that it now states "Corrected" right under the date line. A check of the docket shows this entry:
Carpenter appealed his conviction, arguing the trial court abused its discretion by admitting the challenged evidence and without it, his conviction lacked sufficient evidentiary support. The Court of Appeals disagreed and affirmed the trial court, concluding exigent circumstances justified the officers’ warrantless entry into Carpenter’s home. Carpenter v. State, 3 N.E.3d 1068, 1071– 73 (Ind. Ct. App. 2014). * * *
Any threat of danger to the outside public was slight; the dog was confined in a fenced yard secured by a locked gate, and the officers could have further prevented the dog’s escape by closing the sliding door. The dogs’ aggressive behavior and bloodied appearance simply were not enough to give rise to a reasonable belief that a person was in danger of imminent harm or in need of immediate assistance. Moreover, the officers did not need to enter to address the situation. They had Carpenter’s phone number, and calling him or his employer to ensure that no one was in the residence would not have been overly burdensome. * * *
Taken together, these factors lead us to conclude the officers’ entry into Carpenter’s home was unreasonable and therefore impermissible under Section 11. Because the warrant was based on the officers’ observations made during their illegal presence inside Carpenter’s home, the admission of evidence recovered pursuant to that warrant was an abuse of discretion. And the State offered no other evidence against Carpenter. Accordingly, we must reverse his convictions.
Our opinion today does not mean that an animal’s condition or behavior could never give rise to reasonable grounds upon which a police officer could enter a residence without a warrant. All we hold is that on these facts, the trial court erred in concluding entry was reasonable without any objective evidence that a person required immediate assistance. Because we have resolved this issue under our Indiana Constitution, we need not consider Carpenter’s claim that the admission of the evidence found in his home violated his rights under the Fourth Amendment to the Federal Constitution.
Conclusion. For the reasons set forth in this opinion, we reverse the trial court.
ORDER: IT HAS COME TO THE COURT'S ATTENTION THAT THE OPINION HANDED DOWN ON OCTOBER 21, 2014 CONTAINS A TYPOGRAPHICAL ERROR ON PAGE 1.
SPECIFICALLY, ANDREW L. TEEL WAS OMITTED FROM THE LIST OF "ATTORNEYS FOR APPELLANT." THIS INADVERTENT ERROR WAS CORRECTED IN A REVISED OPINION THAT WAS DELIVERED TO THE CLERK WITH THIS NOTICE. NO OTHER CHANGES WERE MADE TO THE OPINION, AND NEITHER THE CORRECTED OPINION NOR THIS NOTICE ALTER THE DUE DATE FOR A PETITION FOR REHEARING.
THE CLERK IS DIRECTED TO (1) ENTER THIS NOTICE OF CHANGE ON THE CHRONOLOGICAL CASE SUMMARY; (2) SERVE ALL COUNSEL OF RECORD WITH A COPY OF THE CORRECTED OPINION AND THIS NOTICE; (3) MAKE ARRANGEMENTS FOR REMOVING THE ORIGINAL OPINION FROM THE COURT'S WEBSITE AND POSTING THE CORRECTED OPINION IN ITS PLACE; AND (4) SEND A COPY OF THIS NOTICE TO THOMSON/REUTERS, LEXISNEXIS, AND WOLTERS KLUWER.
MARK S. MASSA, JUSTICE (ORDER REC'D ON 10/21/14 @ 3:21 PM) ENTERED 10/21/14
Ind. Decisions - Two disciplinary rulings filed yesterday by the Supreme Court
From In re Charles E. Cohen, a 2-page, 5-0 order:
Respondent has been an attorney since 1993 and was admitted as a patent attorney by the United States Patent and Trademark Office in 2000. Respondent was employed by Eli Lilly and Company ("Lilly") from 1999 through 2009. Respondent had a duty to protect Lilly's intellectual property and preserve Lilly's confidences. In 2009, as Respondent prepared to leave his employment with Lilly, he copied documents and forms onto a disk. A Lilly administrative assistant made a copy of the disc and gave both discs to Respondent. The information on the discs ("CD Data") was property of Lilly and was considered by Lilly to be confidential. Respondent took the CD Data from Lilly's premises and retained it, knowing that he was not authorized to possess or control the CD Data after he left Lilly.From In re Marietto V. Massillamany, a 2-page, 5-0 order:
Aggravating and mitigating facts. The parties cite the following fact in aggravation: Respondent was aware that the duty of a patent lawyer is to protect the intellectual property of the client. The parties cite the following facts in mitigation: (1) Respondent has no disciplinary history; (2) Respondent was cooperative with both Lilly and the Commission in their investigations; (3) Respondent had no intent to harm the client; (4) he returned the CD Data to Lilly upon request and did not intend to share it with third parties; (5) Respondent believes that the information regarding Lilly's products on the discs was either already in the public domain or would become public in the near future; (6) Respondent has expressed that the breach of his employment agreement was not intentional, yet he takes full responsibility for and regrets his actions; and (7) Respondent's misconduct resulted in the revocation of a substantial severance payment from Lilly. * * *
For Respondent's professional misconduct, the Court suspends Respondent from the practice of law for a period of 90 days, beginning December 1, 2014.
Respondent was admitted to practice in Indiana in May 2004. The bar application asked for full disclosure of both criminal convictions and accusations of violations of the law. In 2000, he had been convicted of operating a vehicle with a BAC equivalent between 0.08 and 0.25, a class C misdemeanor. He reported this conviction on his 2003 bar application. He had also been charged in 1996 with Minor in a Tavern, a class C misdemeanor, which was resolved through a pre-trial diversion agreement. Respondent did not report this charge in his initial 2003 application nor in a renewed application.Here is a July 13, 2013 ILB post on Mr. Massillamany, as well as one from Dec. 18, 2010 and one from April 21, 2010.
In 2010, Respondent pled guilty to operating a vehicle while intoxicated ("OWI") endangering a person, a class A misdemeanor, for which he received an agreed public reprimand. See Matter of Massillamany, 946 N.E.2d 581 (Ind. 2011). Based on an incident on or about July 11, 2013, Respondent was charged with OWI with a prior conviction within five years, a class D felony. He self-reported this incident to the Commission on July 17, 2013. He pled guilty on April 9, 2014, and promptly notified the Commission of this conviction. * * *
For Respondent's professional misconduct, the Court suspends Respondent from the practice of law for a period of six months, beginning December 1, 2014, with 120 days actively served and the remainder stayed subject to completion of at least three years of probation under a JLAP long-term monitoring agreement.
Ind. Decisions - Court of Appeals issues 2 today (and 4 NFP)
For publication opinions today (2):
In Gary A. Gallien v. State of Indiana , an 18-page, 2-1 opinion, Judge Mathias writes:
Gary Gallien appeals the post-conviction court’s denial of his petition for post-conviction relief.In Georon Harris v. State of Indiana, an 8-page opinion, Judge Bradford writes:
Gallien raises one issue, which we restate as whether he was denied the effective assistance of appellate counsel. * * *
We conclude that the post-conviction court’s denial of Gallien’s petition for post-conviction relief was clearly erroneous. Gallien’s appellate counsel was ineffective for failing to raise an argument regarding the consecutive sentencing limitation of Indiana Code Section 35-50-1-2. We reverse and remand for resentencing.
BROWN, J., concurs.
BRADFORD, J., dissents with opinion [which begins, at p. 13, and which concludes]
In the instant matter, Gallien and his companions broke into a Goodwill store in Floyds Knobs and stole money and a moving dolly. Gallien and his companions then drove over four miles to a tavern in Galena. After arriving at the tavern, Gallien and his companions broke into the tavern and stole an automated teller machine, a change machine, and additional money. These facts, similar to the facts presented in Reynolds, depict two completely separate thefts. Notably, this is not a situation where Gallien and his companions broke into neighboring houses or businesses. Instead, this is a situation where Gallien and his companions committed one robbery, drove to another location over four miles away from the first location, and committed a second robbery. Based on these facts, I do not believe that there was a reasonable probability that a reviewing panel of this court would have accepted the argument that Gallien’s actions constituted a single episode of criminal conduct. As such, I would conclude that Gallien failed to demonstrate prejudice, i.e., a reasonable probability that but for counsel’s errors the result of the proceeding would have been different. I would therefore conclude that the trial court’s determination that Gallien failed to prove that he suffered ineffective assistance of appellate counsel was not clearly erroneous and would vote to affirm the judgment of the post-conviction court.
Fort Wayne police responded to a dispatch of an armed individual who had pointed a gun at a female and located Appellant-Defendant Georon Harris, who matched the description in the dispatch, sitting in front of an apartment at 810 Oaklawn Court (“the Apartment”). As two police officers approached, they saw Harris remove a black handgun from his waistband, open the front door of the Apartment, place the gun on the floor just inside the door, and close the door. The officers could not see into the Apartment. After securing Harris, one of the officers opened the Apartment’s door, reached inside, and retrieved the handgun from the floor. The State charged Harris with Class A misdemeanor carrying a handgun without a permit. Harris filed a motion to suppress the gun, which motion the trial court denied. Following trial, a jury found Harris guilty as charged, and the trial court sentenced him to 210 days of incarceration.NFP civil opinions today (0):
Harris contends that the entry into the Apartment to retrieve the gun violated his rights pursuant to the Fourth Amendment to the United States Constitution and Article I, Section 11 of the Indiana Constitution. This case calls upon us to examine the question of under what circumstances the presence of a firearm in the vicinity obviates the need to obtain a search warrant in order to seize it from a residence. Under the circumstances of this case, we conclude that the State has established that exigent circumstances relieved it of the need to obtain a search warrant. We also conclude that the seizure of the gun from the Apartment was reasonable pursuant to the Indiana Constitution.
NFP criminal opinions today (4):
Ind. Courts - "Elkhart teens appeal convictions in death of accomplice" [Updated Twice]
Madeline Buckley of the South Bend Tribune reported yesterday:
INDIANAPOLIS — Three Elkhart teenagers who are fighting felony murder convictions and sentences in the shooting death of their friend have asked the Indiana Supreme Court to review the case.ILB: The ILB has had many posts on the "Elkhart Four," here is a list.
The teenagers, popularly known as the 'Elkhart Four,' are serving decades in prison in connection with a burglary that resulted in the death of a friend and accomplice in the burglary. * * *
Layman, Sharp and Sparks appealed their convictions and sentences, and won a partial victory in September. The Indiana Appeals Court upheld the convictions, but ruled the sentences were too harsh.
The court ordered the judge to suspend 10 years of Layman's and Spark's sentences and five years of Sharp's, meaning the teenagers would only serve 45 years.
But the three defendants have asked the Indiana Supreme Court to take this case. They filed petitions to transfer the case last week.
The ILB hopes to post the transfer petitions of the defendants, plus the State's responses. In addition, I'm told two amicus briefs have been filed.
For starts, here is appellant Blake Layman's petition to transfer.
[Updated at 1:36 PM] Here are additional documents:
- Levi Spark's petition to transfer
- Public Defender Council amicus brief in support of petition to transfer. Don't miss chart on pp. 8-9.
[Updated on Oct. 22nd] Here is the second amicus brief:
- Juvenile Law Center amicus brief in support of petition to transfer.
Ind. Decisions - One Indiana opinion yesterday from 7th Circuit
In USA v. Kenneth Schmitt (SD Ind., Young), a 26-page opinion, Judge Williams writes:
Law enforcement officers found drugs and an assault rifle in Kenneth Schmitt’s home while executing a warrant for his arrest. Because they were found in plain view in the course of conducting a reasonable pro-tective sweep, the district court did not err in denying Schmitt’s motion to suppress evidence of the firearm. Nor did the district court err in allowing much of the drug evi-dence that was admitted against Schmitt at trial, including his conviction record for possessing marijuana with the in-tent to distribute it. However, the district court should not have admitted Schmitt’s conviction for possession of meth-amphetamine since Schmitt did not open the door to that ev-idence and it was not relevant at trial except to impeach the government’s own witness who claimed during direct exam-ination that the methamphetamine belonged to him. But the error was harmless because the government’s case would not have been substantially less persuasive without it. Final-ly, the district court did not err in enhancing Schmitt’s base offense level after concluding that he possessed the firearm in connection with the sale of drugs or in finding that Schmitt’s eleventh-hour decision to admit guilt—after he was convicted—was insufficient to qualify him for a reduc-tion in his offense level for accepting responsibility. There-fore, we affirm Schmitt’s conviction and sentence.
Courts - "SCOTUS Will Consider Police Searches of Hotel Registries"
Adam Liptak reports here in the NYTimes. The story begins:
The Supreme Court on Monday agreed to decide whether the police in Los Angeles may inspect hotel and motel guest registries without permission from a judge.[More] David G. Savage has a story here in the LA Times that notes:
Dozens of cities, including Atlanta, Denver and Seattle, allow such searches, which law enforcement officials say help them catch fugitives and fight prostitution and drug dealing.
A group of motel owners challenged the law. They said they were not troubled by its requirement that they keep records about their guests. But they objected to a second part of the ordinance, requiring that the records “be made available to any officer of the Los Angeles Police Department for inspection.”
The city said this means the police may look at the records at any time without the owners’ consent or a search warrant.
The case could yield an important constitutional ruling on the government's power to check private business records without a search warrant. The issue is being fought out in a different context in the dispute over the government's power to collect private phone records to search for possible terrorist plots.
Ind. Courts - "Veterans Treatment Court great for LaPorte County"
Yesterday the ILB reported plans for a veterans court in Marion County. Here is a letter, published in the Michigan City News-Dispatch, from Kurt R. Earnst is a LaPorte-based attorney, on that county's newest court:
Last year I was asked to serve as the public defender's representative on the La Porte County Veterans Treatment Court Team. Since that time, the team led by Judge Jennifer Koethe has developed a plan and received provisional certification for the La Porte County Veterans Treatment Court. The court began receiving participants on April 29 and has now passed its 90-day mark.
As a criminal defense attorney who has been practicing in La Porte County for 18 years, it is fair to say that this court is unlike any other court that I have ever participated in. Before each court session, the Treatment Court Team (consisting of myself, the prosecutor, a Veterans Justice Outreach Specialist from the VA, the County Veterans Service Officer, treatment professionals, law enforcement officers and a case manager) meets and evaluates potential candidates for the program and discusses the progress of existing candidates in the program. Each court session begins with the Pledge of Allegiance and volunteer veterans mentors are scattered throughout the audience, ready to assist fellow veterans. Judge Koethe calls each participant and the participant's assigned mentors up to the podium to discuss the participant's progress in the program.
The program is designed to help veterans in the criminal justice system with issues related to their military service. Those issues usually involve alcohol abuse, substance abuse or anger issues related to post-traumatic stress disorder. The program uses intensive judicial monitoring and links eligible veterans with individually-tailored programs and services. Each participant is assigned one or more volunteer veteran mentors. These mentors are pillars in the community and continue to serve their fellow veterans by providing friendship, encouragement and support. * * *
According to the La Porte County Sheriff's Department, it costs taxpayers $28 per day to house a person in the La Porte County Jail. The cost is approximately $54 per day if the Department of Corrections houses the same person. As a result, this program can save taxpayers a range from $10,000 to $19,710 per participant, per year. Currently the program has six participants, which means it is on track to save the county between $60,000 and $118,260 for these participants alone. The program is set up to assist 20 participants at a time. At maximum capacity we could see a taxpayer savings per year between $200,000 and $394,200.
Additionally, the only funding for the program came as a result of a grant obtained by Judge Koethe from the Indiana Supreme Court for $40,000 for training, equipment and other start-up costs involved in the certification process. All mentors serve on a volunteer basis after receiving training.
We have only just begun to identify our veterans in the criminal justice system with many returning from multiple tours in Iraq an Afghanistan with the scars of war. At a time when 22 veterans per day are committing suicide and the honorable men and women who have served their country to protect our freedom are ending up in the criminal justice system, it is truly remarkable that we have a program in our county that can save our veterans and the taxpayers so much. I feel truly honored to be a part of this program.
Environment - "Poultry manure piles targets of complaints"
Seth Slabaugh reports today in the Muncie Star-Press in a story that begins:
MUNCIE – The Indiana state chemist's office has been busy investigating complaints about piles of chicken and turkey manure since the adoption of a new manure-staging rule took full effect in 2013.More from the story:
The office has responded to at least 15 complaints in the past year, some of which resulted in fines or warnings in the case of first offenders.
To Barbara Sha Cox of Indiana CAFO Watch, the piles of manure, which are spread on farm fields as fertilizer, are no laughing matter.
"Any time there is not a berm of dirt around the manure or the pile is not covered, there is the potential for runoff to our streams and rivers," Cox said. "We have rules and yet some of our farmers continue to violate the rules even to the point of staging near a river with a slope. As a fourth-generation farm family, I am amazed at the lack of stewardship by some farmers."
In March, Cox filed a complaint about a manure pile on Ind. 1 between Hagerstown and U.S. 36 in Randolph County.
On March 17, state pesticide investigator Elizabeth Carter found the pile, which had been there since Jan. 10. It was not bermed or covered.
Air pollution is another concern to neighbors.
"The dust that blows off the piles has many pathogens," Cox said. "The smell is awful and to subject neighbors having to live with this near their homes is not responsible farming. Farming should not have elevated rights over the health, well-being and quality of life of people who have lived in the area for years. People who sent in the complaints ... understand that clean water gives us life."
Responding to another complaint from Cox, the pesticide investigator found another un-bermed, uncovered manure pile from Ohio just east of Fountain City, home of the historic Levi Coffin House in Wayne County, on March 17. * * *
Elsewhere in Indiana, farmers were warned or fined for piling turkey manure too close to a public road; too close to a house; failing to apply two manure piles to fields within 90 days; failing to install a tarp or barrier around piles; transporting chicken manure without a license; and piling manure too close to two houses.
The Star Press first received a complaint about Ohio chicken manure 10 years ago this month from Mark and Karen Rees, Dunkirk, who were forced to spray Raid and run a vacuum cleaner daily to control an infestation of beetles they believe came from a manure pile. A farmer acknowledged the bugs probably came from the manure and apologized.
A Ball State biology professor who examined a jar of the bugs believed they were darkling beetles, a native of Africa and a widespread pest in the U.S. poultry industry.
Bug complaints from households near manure piles originating in Ohio are common, the Indiana Department of Environmental Management told The Star Press.
Ind. Gov't. - "Panel punts on ethics changes: No action taken; witnesses discuss interest conflicts"
That is the headline to Niki Kelly's story this morning in the Fort Wayne Journal Gazette. Some quotes:
INDIANAPOLIS – Five House members heard testimony Monday about possible changes to ethics laws for legislators. But they won’t be recommending any solutions.Yesterday's meeting of the House Ethics Committee was little publicized. However, Tony Cook's story today in the Indianapolis Star begins:
Instead, the House Ethics Committee will simply summarize the testimony and forward it to legislative leaders for possible action in the 2015 General Assembly. The Senate Ethics Committee also did not participate.
One area that was pinpointed was conflict of interest.
“This is one of the most interesting ethical issues that we all face as public officials because it’s so gray,” said Peggy Kerns, head of the Center for Ethics in Government at the National Conference of State Legislatures. “So much of it is based on your own standards and values.”
She presented material to the group regarding Indiana’s law compared with other states.
Kerns said the backgrounds and the experience that lawmakers bring is important – especially in a part-time citizen legislature.
“But there is a fine line between advocating for a personal position and advocating for a subject area,” she said. * * *
Julia Vaughn, policy director for Common Cause Indiana, said lawmakers considering ethics reform need to adjust the law so that there is some difference between providing expertise and engaging in advocacy.
“Lobbying for the passage or defeat of legislation is a very different thing, particularly when a member has disclosed a conflict,” she said. “You all know the difference.”
Some other changes Vaughn suggested include:
•Adding a preamble to the code of ethics telling the public lawmakers will ensure the public interest is protected.
•Prohibiting any members from using their position for private gain for themselves, their immediate family or business partner.
•Posting Statements of Economic Interests online, and make them searchable. The Indiana House has posted them for years but the Indiana Senate does not.
•Requiring disclosure of any personal or business relationship between legislator and lobbyist.
•Adding the disclosure of real property interests to the economic statement.
•Allowing the public to file ethics complaints and adding a secondary ethics commission or board so that there is an independent prong to lawmakers investigating their colleagues.
•Adding or increasing penalties for late, incomplete or erroneous filings.
Perhaps the most notable thing about Monday’s meeting of the House Ethics Committee on possible ethics reforms was the number of people who showed up to voice concerns and make suggestions.From Dan Carden's story today in the NWI Times:
And two of those were former lawmakers.
The meeting at the Statehouse was supposed to give the public an opportunity to weigh in on state ethics reform – something House Speaker Brian Bosma has said Republicans will prioritize during the upcoming legislative session.
The meeting grew out of the ethics controversy surrounding Rep. Eric Turner’s role in killing legislation that would have hurt his family’s nursing home development business. Turner has since announced that he will resign if he wins re-election in November.
But for all the complaints one hears about such behavior, the response at Monday’s ethics meeting was less than robust.
Experts advised the House Ethics Committee on Monday that Indiana needs to update its public disclosure requirements for state lawmakers.
The panel is assessing the Legislature's ethical standards ahead of proposals expected in the 2015 session requiring lawmakers more fully disclose their economic interests and any conflicts of interest.
The review follows allegations that state Rep. Eric Turner, R-Cicero, improperly lobbied House Republicans in a private meeting to vote against a measure that would have financially harmed his family business.
Julia Vaughn, policy director for Common Cause Indiana, said the business world has changed greatly in the two decades since the General Assembly's economic disclosure form was last updated and items like subsidiary businesses or holding companies now ought to be reported.
"Transparency is an important piece of this and I think simply updating the Statement of Economic Interests to reflect today's business practices, and to be inclusive of the financial relationships that part-time legislators can have in the real world, will go a long way to making clear any conflicts of interest that might exist," Vaughn said.
Other states require more information from legislators than Indiana does, observed Peggy Kerns, ethics director at the National Conference of State Legislatures.
She suggested Hoosier lawmakers may want to look at requiring representatives and senators disclose all real estate they own and any personal connections to Statehouse lobbyists, reveal all sources of income for themselves and their immediate family members, along with publishing that material online.
House Speaker Brian Bosma, R-Indianapolis, said last week he is committed to improving transparency to safeguard the public's trust and plans to work with Democrats to enact meaningful ethics reforms.
Monday, October 20, 2014
Courts - The SCOTUS has gone to the dogs!
Not to be missed! Last Week Tonight with John Oliver on YouTube. The intro:
Cameras aren’t allowed in the Supreme Court, so most coverage of our most important cases looks like garbage. We fixed that problem with real animals and fake paws.Absolutely hilarious.
And it also provides this footage for you to do your own Supreme Court reenactments of your favorite cases.
Ind. Courts - "Millions forfeit in ND Ind. drug plea deal" In Nev. federal court, some forfeitures under seal
Rebecca S. Green reported this Sat., Oct. 18th in the Fort Wayne Journal Gazette:
The wine collection goes to the government, as do the $3,999 home theater system and the expansive Cherry Hill house where it all was kept.ILB: That seems to be the current norm under the federal civil asset forfeiture law. But the Las Vegas Review-Journal has a more surprising story, also on Saturday, reported by Jeff German. The headline: "Vegas prosecutors used ‘super seal’ to hide fortune seized from gamblers." The long story begins:
On Friday, Michael Fabini, 35, filed a guilty plea in U.S. District Court, admitting to two counts of a 44-count indictment pending against him accusing him of being a part of one of the area’s largest drug trafficking conspiracies.
As part of his plea agreement to one of the drug trafficking conspiracy charges and a count of engaging in a monetary transaction in property derived from drug trafficking, Fabini will be sentenced to 14 years in federal prison, according to court documents. * * *
And along with the house, the wine collection, furniture, a commercial-grade lawn mower and other items, Fabini must forfeit money held for his wife and children in brokerage accounts, according to court documents.
He must also forfeit a monetary judgment of $5 million, the “proceeds of the conspiracy,” according to court documents.
Calling their conduct “constitutionally abhorrent,” a federal judge recently chided government prosecutors for working in secret to keep millions of dollars in cash and assets seized from a Las Vegas gambler and his family in a decadelong bookmaking investigation.The ILB can't locate the magistrate's opinion. But the long Review-Journal story is certainly worth reading.
In his 31-page opinion, U.S. Magistrate Judge Cam Ferenbach cast light on the little-known court process that allowed the government to file civil forfeiture actions against Glen Cobb, his 82-year-old parents and his stepdaughter under “super seal” with no notice to anyone — not even the family it targeted.
Government documents filed under super seal, a procedure overseen by the federal clerk’s office, are stored in the court’s vault and not loaded into the electronic case management system. The documents remain secret from the public and opposing parties.
Ferenbach said prosecutors sought a level of secrecy normally reserved for cases that threaten public safety or national security.
“This is unacceptable,” Ferenbach wrote in court papers only recently made public. “Relying on various sealed and super-sealed filings, the government asks the court to rule against private citizens, allow the deprivation of their property and deny them a process to redress possible violations of their constitutional rights through a secret government action that provides no notice or opportunity to be heard.
“Saying that this would offend the Constitution is an understatement. It is constitutionally abhorrent.”
Law - "Some States' Medical-Waste Rules Complicate Ebola Fight" [Updated]
That is the heading of this story in Governing by Monte Morin of McClatchy News that begins:
Protective gloves, gowns, masks and booties are donned and doffed by all who approach the patient's bedside and then discarded. Disposable medical instruments, packaging, bed linens, cups, plates, tissues, towels, pillowcases and anything that is used to clean up after the patient must be thrown away.There is much more in the story.
Even curtains, privacy screens and mattresses eventually must be treated as contaminated medical waste and disposed of.
Dealing with this collection of pathogen-filled debris without triggering new infections is a legal and logistical challenge for every U.S. hospital now preparing for a potential visit by the virus.
In California and other states, it is an even worse waste-management nightmare.
Though the U.S. Centers for Disease Control and Prevention recommend autoclaving (a form of sterilizing) or incinerating the waste as a surefire means of destroying the microbes, burning infected waste is effectively prohibited in California and banned in at least seven other states.
"Storage, transportation and disposal of this waste will be a major problem," California Hospital Assn. President C. Duane Dauner warned Sen. Barbara Boxer in a letter.
Even some states that normally permit incineration are throwing up barriers to Ebola waste.
In Missouri, the state attorney general has sought to bar Ebola-contaminated debris from a St. Louis incinerator operated by Stericycle Inc., the nation's largest medical waste disposal company.
Because of restrictions on burning, California hospital representatives say their only option appears to be trucking the waste over public highways and incinerating it in another state -- a prospect that makes some environmental advocates uneasy.
[Updated at 3:25 PM] Here is a link to an excellent 15-minute Rachel Maddow feature last week on medical waste treatment technology for Ebola waste.
Ind. Gov't. - "The problems at the BMV stretch back at least to 2004, when the state moved to a new system for crafting and administering fees"
That is a take-away from this AP story this weekend by Tom LoBianco. More from the story:
Lawyers for the embattled Bureau of Motor Vehicles are speaking out this week in the ongoing legal battles over overcharges by the state agency.
Attorneys from Indianapolis firm Bingham Greenebaum Doll, retained by the state in February, say BMV officials are doing everything they can to identify – and fix – problems with drivers' fees.
But Wayne Turner and Carl Hayes, the pair working on the BMV suit, said Tuesday in an interview that their efforts are being stifled by plaintiffs trying to lock them up in court battles.
The BMV has been embroiled in problems since it was uncovered last year that the agency had overcharged for driver's licenses. Since then, other agencywide fee-related problems have been discovered.
Gov. Mike Pence ordered an outside audit of the agency this month after state workers discovered $29 million in overcharges on excise taxes.
Irwin Levin, who is leading the latest BMV lawsuit against the state, has argued that the overcharges are part of a systemic problem inside an agency that was seeking to make ends meet during budget struggles. In court filings, Levin has also argued the state is dragging its feet in providing critical information.
Ind. Gov't. - Ball State writes off $12.6 million from scam
RICHMOND – A report released Friday by a former federal prosecutor who investigated the Ball State University investment scandal does not include what everybody wants to know:
How did a lone employee, Gale Prizevoits, the former director of cash and investments, invest $13.165 million with two criminals without the knowledge of anyone else at the university?
"There was not a detailed, play-by-play report about what transpired and how these investment frauds were accomplished," Indianapolis attorney Rick Hall, chairman of the BSU board of trustees, told The Star Press on Friday, after he and President Paul Ferguson appeared before the State Budget Committee.
"That information was reviewed by (CPA firm) Crowe Horwath and (former U.S. Attorney) Deborah Daniels," he said, "and we will provide information in that regard to prosecutors, and they will make a decision as to who should be prosecuted."
Hall told the State Budget Committee, meeting in Richmond, that the university doesn't expect to recover any more than half a million dollars of the investments made with two perpetrators of securities fraud, one from Bronx, N.Y., and one from Boynton Beach, Fla. Both pleaded guilty to federal charges.
Ind. Decisions - Court of Appeals issues 0 today (and 2 NFP)
For publication opinions today (0):
NFP civil opinions today (0):
NFP criminal opinions today (2):
Ind. Decisions - Transfer list for week ending October 17, 2014
[Search all the Transfer Lists: The ILB feature, "Search the ILB Transfer Lists," allows you to do just that, back to Feb. 2004. Check it out. Read the instructions. Note that the search is now current through the June 20, 2014 list.]
Here is the Clerk's transfer list for the week ending Friday, October 17, 2014. It is two pages (and 23 cases) long.
Two transfers were granted last week:
- Lora Hoagland v. Franklin Township Community School Corporation - this is the June 10, 2014 COA opinion that looked at the question: "[D]id Franklin Township act unconstitutionally with respect to student transportation? Applying our Supreme Court’s reasoning in Nagy v. Evansville-Vanderburgh School Corp., 844 N.E.2d 481 (Ind. 2006), we conclude that it did. We affirm in part and reverse in part."
- The Board of Commissioners of the County of Jefferson v. Teton Corporation, Innovative Roofing Solutions, Inc., Gutapfel Roofing, Inc. and Daniel L. Gutapfel - This was a 2-1 Feb. 2, 2014 COA opinion about whether Jefferson County's property insurance policy covered the some of the courts of rebuilding the courthouse after a fires.
Catch-up: What did you miss over the weekend from the ILB?
From Sunday, October 19, 2014:
From Saturday, October 18, 2014:
- Ind. Courts - "Don’t retain Massa on state court" say letter today in the IndyStar. ILB adds needed context.
Ind. Decisions - Upcoming oral arguments this week and next
This week's oral arguments before the Supreme Court (week of 10/20/14):
Thursday, Oct. 23
- 9:00 AM - Donald W. Myers, III v. State of Indiana (76S03-1407-CR-493) Myers had been diagnosed with schizophrenia, and in 2004, he stopped taking medication and shot at motorists. At trial in the Steuben Circuit Court, unanimously the experts opined Myers had been legally insane at the time of the shootings; the State was allowed to present Myers’s post-arrest silence and request for counsel as evidence of sanity. The jury rejected the insanity defense and found Myers guilty of four counts of attempted murder. The Court of Appeals reversed in Myers v. State, No. 76A03-1305-CR-173 (Ind. Ct. App. 2014) (NFP memo. dec.), vacated. The Supreme Court has granted a petition to transfer the case and has assumed jurisdiction over the appeal.
ILB: This was an April 14th NFP opinion where the COA reversed the trial court, holding: "The trial court abused its discretion in admitting evidence of Myers’s refusal to speak with police and his request for counsel and the jury clearly erred in rejecting Myers’s insanity defense."
- 9:45 AM - Dunstin E. McCowan v. State of Indiana (64S03-1408-CR-516) Following a jury trial in the Porter Superior Court, Dustin McCowan was convicted of murdering Amanda Bach. The Court of Appeals rejected McCowan’s appellate arguments, including those relating to an instruction on the presumption of innocence and admission of certain cell phone data, and affirmed the conviction in McCowan v. State, N.E.3d (Ind. Ct. App. 2014), vacated. The Supreme Court has granted a petition to transfer the case and has assumed jurisdiction over the appeal.
ILB: This was an April 23, 2014 COA opinion regarding the admissibility of cell phone records including the text messages, and the location of the calls that were made.
- 10:30 AM - In the Matter of Dennis Alan Howell (94S00-1405-CQ-321) Pursuant to Indiana Appellate Rule 64, the United States Bankruptcy Court for the Northern District of Indiana certified the following question of Indiana law for the Indiana Supreme Court’s consideration, which the Indiana Supreme Court accepted on May 23, 2014. The question, as framed by the federal court, is: “Under Indiana Code § 27-1-12-14(e), does the phrase ‘dependent upon such person’ modify only ‘any relative,’ or does the phrase modify ‘spouse,’ ‘children,’ and ‘any relative’?”
Thursday, Oct. 30
- 9:00 AM - State of Indiana v. International Business Machines Corporation (49S02-1408-PL-513) The State and IBM sued one another for breach of contract following the termination of a contract intended to modernize and improve Indiana’s system for administering welfare benefits. After several partial summary judgment rulings and a six-week bench trial, the trial court entered judgment in favor of IBM and against the State and awarded IBM some, but not all, of the damages IBM had sought. On cross-appeals, a divided Court of Appeals panel affirmed in part, reversed in part, and remanded for further proceedings. State v. Int’l Bus. Mach. Corp, 4 N.E.3d 696 (Ind. Ct. App. 2014), vacated. The Supreme Court has granted petitions to transfer the case and has assumed jurisdiction over the appeal.
- 9:45 AM - Roy Bell v. State of Indiana (25S00-1310-LW-713) Bell was convicted of murder and burglary following a bench trial in the Fulton Superior Court, and was sentenced to life without the possibility of parole pursuant to the parties’ agreement. In this direct appeal, Bell argues the evidence was insufficient to support the murder conviction.
This week's oral arguments before the Court of Appeals (week of 10/20/14):
Monday, October 20
- 10:00 AM - Anonymous Physician, et al v. Rogers (02A03-1401-CT-1) Richard Rogers experienced escalating allergic reactions following cystoscopy procedures performed by the Anonymous Physician and Anonymous Medical Group (the “Providers”) on March 10, 2008; July 14, 2008; and January 7, 2009. After consultation with a different doctor, Rogers discovered on March 5, 2009, that he was allergic to a disinfectant used on the surgical instruments. He filed a proposed complaint for medical malpractice with the Indiana Department of Insurance on March 4, 2011. The Providers filed a motion for preliminary determination and for summary judgment alleging that Rogers’ claim was barred by the statute of limitations. The trial court initially granted the Providers’ motion and dismissed Rogers’ proposed complaint, finding that Rogers discovered the alleged malpractice within the two year statute of limitations, there was no continuing wrong or fraudulent concealment to extend the statute of limitations, and he was therefore required to file his complaint within two years of January 7, 2009-the last occurrence of alleged malpractice. The trial court subsequently granted Rogers’ motion to correct error and vacated its earlier dismissal of his complaint upon finding that there are genuine issues of material fact as to when a reasonably diligent plaintiff would have discovered the allegedly negligent conduct. The Providers now appeal the trial court’s denial of their motion for preliminary determination and for summary judgment. The Scheduled Panel Members are: Judges Baker, Kirsch and Robb.
[Where: Court of Appeals Courtroom (WEBCAST)]
- 11:00 AM - Taylor v. State (55A01-1312-CR-524) In this case, Aaron Taylor is appealing multiple criminal convictions that resulted from an incident in which he held utility employees at gunpoint after they entered his property to shut off his water and remove his water meter. Taylor argues that he should have been permitted to present evidence supporting a citizen's arrest defense and that the evidence supporting one of his intimidation convictions was insufficient.
The Scheduled Panel Members are: Judges Baker, Kirsch and Robb.
[Where: Court of Appeals Courtroom (WEBCAST)]
- 2:00 PM - Rueth Development v. Powers-Rueth & Assoc., et al (45A05-1402-PL-80) Appellant-Plaintiff Rueth Development Company ("RDC") appeals the trial court's order granting summary judgment in favor of Appellees-Defendants Powers-Rueth & Associates, Donald S. Powers, Margaret F. Powers, Frankie L. Fesko, Timothy Fesko, and Joe P. Williamson (collectively, "Appellees"). RDC contends that the award of summary judgment in favor of Appellees was improper because issues of material fact remain that would preclude an award of summary judgment. RDC further contends that the trial court abused its discretion in denying its request to submit supplemental evidence prior to the summary judgment hearing and in denying its motion for leave to amend its complaint. For their parts, Appellees contend that the trial court properly granted summary judgment in their favor, and that the trial court acted within its discretion in denying RDC's request to filed supplemental materials and amend its proceedings. The Scheduled Panel Members are: Not available. [Where: Not available]
Tuesday, October 21
- 1:00 PM - Thomson Inc. v. XL Insurance (49A02-1401-PL-9) In this case, Thomson is appealing the grant of summary judgment in favor of XL Insurance America on Thomson's action seeking indemnification and defense from the insurer. The underlying issues stem from soil and groundwater contamination at manufacturing plants located in Taiwan and Circleville, OH; Thomson's expenses incurred in investigating and remediating the contamination; and whether its insurance covered is barred by the common law known-loss doctrine. The Scheduled Panel Members are: Judges Baker, Kirsch and Robb. [Where:Krannert Center for Executive Education, Purdue University, West Lafayette, IN]
Wednesday, October 22
- 12:00 PM - Sharon Handy v. P.C. Building Materials Inc., et al (22A01-1403-CT-125) Sharon Handy appeals the trial court’s entry of summary judgment in favor of P.C. Building Materials, Inc., PC Properties, LLC, David A. Stemler, and Karen L. Stemler (collectively “PC”) on Handy’s negligence claim against PC. Handy sued PC for an injury she sustained while on property owned by PC. Handy entered onto the P.C. Building Materials store property to look at some granite countertops for sale that were leaning against the outside wall of the store, just to the side of the front entrance. The store was closed at the time. Handy pulled one of the leaning countertops toward her body to measure the second countertop that was behind it, when both countertops fell forward onto her foot, causing an injury to her toe. On appeal, the parties disagree as to Handy’s status on the property at the time of the injury. PC maintains that Handy was a trespasser, or at best a licensee, to whom PC owed only a duty to refrain from willfully or wantonly injuring or acting in a manner to increase her peril. Handy contends that she was an invitee/business visitor with an implied invitation to enter the premises and that PC owed her the duty to exercise reasonable care for her protection. PC responds that even assuming Handy qualified as an invitee, the danger posed by the granite countertops was known or obvious to Handy, and therefore PC breached no duty to her as a matter of law. The Scheduled Panel Members are: Judges Riley, Mathias and Crone. [Where:IU Maurer School of Law, 211 South Indiana Ave., Bloomington, IN]
Thursday, October 23
- 10:30 AM - Miller and Miller v. Danz (49A05-1401-PL-45) Jeffrey M. Miller and Cynthia S. Miller appeal the grant of summary judgment in favor of Kristine C. Danz, on their claims for defamation per se, defamation per quod, invasion of privacy, tortious interference with a business relationship, intentional infliction of emotional distress, and loss of consortium. At issue are (1) whether the claims asserted by the Millers are time-barred as to Danz, (2) whether the defamation claims asserted by the Millers fail on the merits, and (3) whether there remain questions of fact regarding the remaining claims asserted by the Millers. The Scheduled Panel Members are: Chief Judge Vaidik, Judges Friedlander and May. [Where:Court of Appeals Courtroom (WEBCAST)]
Next week's oral arguments before the Court of Appeals (week of 10/27/14):
Wednesday, Oct. 29
- 1:00 PM - Gentry v. Bloomquist (32A01-1406-CT-226) In May 2012, eighteen-year-old Sean Bloomquist (“Bloomquist”) hosted a party at his father’s home. Bloomquist’s father and stepmother were not at home and were unaware of the party. Bloomquist, eighteen-year-old Nathan Gentry (“Nathan”), and a third teenager gave money to nineteen-year-old Dustin Stamm (“Stamm”) to purchase alcohol. Stamm went by himself to purchase the alcohol and returned to Bloomquist’s home with a case of beer, which was kept in Stamm’s open car trunk during the party. According to seventeen-year-old party guest Christopher Hubbard (“Hubbard”), the beer was already there when he arrived, and Bloomquist told him that he could have some. Hubbard drank some beer, went to bed in Bloomquist’s home between 12:00 and 2:00 a.m., and awoke at 8:00 the next morning. Half an hour later, as Hubbard was driving Nathan and others to another partygoer’s softball practice, his car left the road and hit a tree. Nathan died as a result of the collision. Nathan’s father, Albert C. Gentry, II (“Gentry”), filed a complaint for damages against Bloomquist and others. The complaint alleged that Bloomquist was civilly liable because he violated Indiana Code Section 7.1-5-7-8, which makes it unlawful for a person to “recklessly, knowingly, or intentionally sell, barter, exchange, provide, or furnish an alcoholic beverage to a minor,” as well as Indiana Code Section 7.1-5-10-15, which makes it unlawful for a person to sell, barter, deliver, or give away an alcoholic beverage to another person who he knows is intoxicated. Indiana Code Section 7.1-5-10-15.5 defines “furnish” as including “barter, deliver, sell, exchange, provide, or give away.” Bloomquist filed a motion for summary judgment asserting that he did not “furnish” an alcoholic beverage to Hubbard. The trial court granted Bloomquist’s motion. On appeal, Gentry contends that the trial court erred in granting Bloomquist’s summary judgment motion because genuine issues of material fact exist regarding whether Bloomquist “furnished” an alcoholic beverage to Hubbard. The Scheduled Panel Members are: Chief Judge Vaidik, Judges Barnes and Crone. [Where: Notre Dame Law School, 1100 Eck Hall, Notre Dame, IN]
ONLY those Court of Appeals oral arguments presented in the Supreme or Court of Appeals Courtrooms will be accessible via videocast. [Note: This may be changing...]
The past COA webcasts which have been webcast are accessible here.
NOTE: For a printable version of this list of upcoming oral arguments, click on the date in the next line. Then select "Print" from your browser.
Saturday, October 18, 2014
Ind. Courts - "Don’t retain Massa on state court" say letter today in the IndyStar
You can read the letter yourself here. It appears in today's Indianapolis Star. The letter ends:
As general counsel to former Gov. Mitch Daniels, Massa rubberstamped a $2 million deal with a large out-of-state law firm, for a long shot appeal of two issues in the Chrysler bailout. He also voted to suspend for three years a bright Republican lawyer who exposed the above; other exploitive patterns in the legal profession; and a value system often driving them.In order to provide some context, the ILB looked up "Gordon Dempsey, Indiana."
Gordon Dempsey, Indianapolis
Dempsey is referencing himself in the last sentence. Dempsey was suspended for 3 years, without automatic reinstatement, on May 2, 2013. Here is the Supreme Court's ruling. Here is the ILB post reporting the ruling from May 7, 2013.
Here is a $$$ IndyStar story by Tim Evans from May 7, 2013, mostly behind a paywall, but this partial paragraph begins:
A disciplinary order posted Tuesday on the Supreme Court website said:The entire disciplinary decision is worth reading. Finally, here is Dempsey's listing on the Indiana Roll of Attorneys, saying he is suspended.
"Respondent's history of unethical litigation practices, his continued attacks on those involved in the bankruptcy and foreclosure actions and in this disciplinary proceeding, the virulent bigotry he has manifested in these proceedings, and his lack of any insight into his misconduct suggest that disbarment may be ...
Friday, October 17, 2014
Ind. Courts - "Hidden camera investigation prompts rule change"
The proposed "Scott" amendment to the Marion County Local Rules, filed by Circuit Judge Louis Rosenberg on Oct. 16, would strike the current rule, which allows a judge to charge "a reasonable fee for weddings," and specifies that the fee for weddings performed on the court premises during regular office hours shall be $80, but is otherwise silent.
The proposed new rule would state that a judge may perform a wedding on court premises as a free service to the public at any time. A judge may perform a "paid wedding" off premises, so long as it is not during regular office hours. The proposal then details the requisite conduct of the judge and staff in either event.
The public may comment on the proposal through Nov. 30th.
As Kara Kenney reported last evening at WRTV6:
Marion County is considering new rules for its small claims courts in direct response to a Call 6 hidden camera investigation into a judge using public resources to promote her private wedding business.
Michelle Scott resigned her Center Township position after Call 6 Investigator Kara Kenney found government workers at the City County Building, both in the small claims court office and the CCB information desk, handing out Scott’s private wedding business cards and directing people to her private office on Market Street.
“I think your series made it clear there was a problem,” said Judge Louis Rosenberg, Marion County Circuit Court and adviser for Marion County Small Claims Courts. “That’s why we acted the way we did.”
Rosenberg and small claims court judges, including Lawrence Township Small Claims Court Judge Clark Rehme, drafted a proposed rule that would impact all nine township small claims courts in Marion County.
The rule would prohibit judges from using public officials or public employees to solicit wedding business for a fee.
“You bringing this to our attention really was a big catalyst to making this rule,” Rehme told Kenney. “One bad apple spoils the whole bunch. I hope this rule helps restore, if not bolster, some more confidence in our positions.”
Rehme said he performs about a dozen weddings a year, and usually only charges a fee if he performs a ceremony on the weekend.
“We’re supposed to be there as a catch-all,” said Rehme. “If you want a nice wedding, feel free to call a wedding planner and get it done.” * * *
Numbers obtained by the Call 6 Investigators show Michelle Scott and her husband Rich perform more weddings than any other wedding officiants in Marion County.
The Scotts have officiated more than 1,300 weddings since January 2013, which is 12 percent of all ceremonies performed.
Their website shows they charge $150 for a weekday wedding at their office and $300 for a weekend wedding at the office.
“That seemed a little above and beyond,” said Rehme regarding the Scott’s wedding fees.
Ind. Decisions - AG Zoeller is appealing District Court ruling striking down current method of judge selection in Marion Co. Superior Courts
Here is the news release:
Today the Indiana Attorney General’s Office filed notice that the State is appealing a federal court ruling that struck down a state law regarding election of Marion County judicial candidates. On October 9, U.S. District Court Chief Judge Richard L. Young ruled in the Common Cause Indiana case and invalidated Indiana Code 33-33-49-13, a statute the Legislature passed in 2006.
The State defendants are appealing Chief Judge Young’s ruling to the U.S. 7th Circuit Court of Appeals in Chicago. Notice of appeal and the docketing statement were filed today in U.S. District Court and are attached. Chief Judge Young’s ruling remains stayed and will not take effect while the State’s appeal is under consideration by the 7th Circuit.
Ind. Courts - "Marion County Receives Grant to Open Veteran’s Court"
Will Healey has the story at Indiana Public Media. Some quotes:
Marion County has received a grant from the Department of Justice to set up a veteran’s court to work with veterans who commit minor crimes.
The 3-year grant from the Bureau of Justice Assistance will establish a court that is more focused on intervention than punishment.
Marion Superior Court Judge David Certo has been working with Indiana’s Department of Veterans Affairs to identify veterans that commit low-level criminal offenses and work to get them treatment. * * *
Certo said other veteran’s courts, like those in Floyd, Porter, and Allen counties have proven successful. * * *
Certo said he hopes to formally establish the court in January 2015.
Ind. Courts - "Former inmates graduate from embattled Clark Co. drug court program"
Katie Bauer of WAVE3News reported last evening in a story that begins:
JEFFERSONVILLE, IN (WAVE) - After a lawsuit and a state investigation that basically shut it down, the Clark County drug court celebrated some former inmates who completed the program and have now found freedom.Here is a list of some earlier ILB posts on the Clark County drug court.
Since the drug court has been under new leadership, they haven't been taking new participants. Those that graduated hope that will change.
Inside a Clark County courtroom on Thursday, sentences weren't handed down instead it was a celebration.
"I still have butterflies, I don't think it is real, it's great I'm excited," said drug court graduate Joelese Ellis. "I'm happy, I feel like tomorrow is a new start. I've got a second chance at life."
Ellis is one of four drug court participants to successfully complete the program and have their charges dismissed.
"It's been really, really hard, but I'm here. I did it," said Ellis.
The drug court first came under fire in early 2014 after a woman was held for five months on what was supposed to be a 48 hour sentence. The Indiana Supreme Court suspended the program after other inmates claimed their rights were violated as well and filed a class action lawsuit. New leadership is in place.
Ind. Decisions - Court of Appeals issues 0 today (and 7 NFP)
For publication opinions today (0):
NFP civil opinions today (0):
NFP criminal opinions today (7):
Courts - "SCOTUS unsigned orders, stays, and injunctions: No explanations in voter ID, abortion, and gay marriage cases"
Dalhlia Lithwick of Slate has an important article that begins:
In recent weeks, the U.S. Supreme Court has decided—by way of injunction, stay, unsigned order, and wordless denials of cert petition—some of the most urgent social and ideological issues facing the country. We have no opinions to read or dissents to celebrate. Just wordless orders that some things should change while others remain the same. Then loads of scurrying around and headlines. Are we in some persistent state of high-level judicial emergency? Not really, despite the dramatic speed at which Texas abortion clinics close and reopen, or same-sex marriages are on or off, or voter ID is needed and then not needed.Greenhouse's NY Times opinion piece from Oct. 15th begins:
For some reason, we have reached a moment in Supreme Court history at which unsigned, unexplained reasoning is the new black. No more briefing, argument, or opinion-writing. No time. It will all be done via high-frequency radio signaling and colloquies with the voices in our heads. Linda Greenhouse asks the same question another way: “What on earth is the court doing and what—with saying hardly a word—is it telling us?”
Has there ever been such a crazy opening to a Supreme Court term? One so confoundingly opaque yet mattering so much?
In the space of eight days, the justices managed to touch on American society’s hottest of hot-button issues: same-sex marriage, access to the polls, and finally – inevitably – abortion, and all without actually issuing an opinion. Review denied, stays granted, stays lifted, news-making orders appearing randomly at odd hours from an institution usually so predictable in its schedule that you can set a clock by its yearly calendar. What on earth is the court doing and what – with saying hardly a word – is it telling us?
Ind. Courts - SD Indiana Court Historical Society Announces 7th Annual CLE
"Murder, Marshals, and Bankruptcy: An Inside Look at the Southern District of Indiana" is the title of the Seventh Annual Court History and Continuing Legal Education Symposium set for November 7, 2014. Get the details, including how to register, here. Registration is $50,: it is 3 hours and 3 CLEs.
Ind. Gov't. - "LaPorte County hires attorney to study Toll Road contract"
Stan Maddux reports today in the South Bend Tribune in an interesting story that begins:
LaPorte County has taken steps aimed at encouraging the state to attempt to take back operations of the Indiana Toll Road or, if it remains under a lease, to provide revenue sharing to counties along the entire stretch of the highway.Here is the most interesting part to the ILB, with emphasis added:
The county commissioners on Wednesday hired a law firm specializing in bankruptcy proceedings to investigate if the language in the 75-year lease can be executed for allowing the state to regain daily operations of the Toll Road, which was leased in 2006 to a private operator now in bankruptcy court.
If the operations do not revert back to the state, the attorney will push for revenue sharing for LaPorte and all other counties adjacent to the highway from whatever company assumes the lease or a restructured lease in the future.
LaPorte County attorney Shaw Friedman said the preference of the commissioners is for the state to reassume operations of a highway he called a ''cash cow.'' Friedman said the state would have to ''buy back'' control of the Toll Road for about $2.4 billion to help retire whatever debt the private operator, ITR Concession Co., is responsible for after its bankruptcy proceedings. Its current debt is listed at $6 billion.
Friedman said the state can float a bond issue to finance the ''buyback.''
And, even with such a debt, figures obtained from the Toll Road show annual profits of about $80 million annually from the highway that could be applied toward the debt payments and local infrastructure, Friedman said.
Goldstein & McClintock, of Chicago, will intervene in the bankruptcy proceedings on the county's behalf.
Friedman said Mitch Daniels, when he was governor, and others claimed the Toll Road under the 2006 lease would revert back to the state if the vendor declared bankruptcy. Whether that can happen is in dispute with some officials, including those with the Toll Road oversight board, who claim bankruptcy alone is not grounds for ITR Concession to have to relinquish control back to the state.The story doesn't provide a direct link to the Urbanophile post, but here it is, from Sept. 21, 2014. It is headed "Indiana Toll Road Lease Vindicated As Win For Hoosiers As Private Operator Goes Bankrupt."
The Tribune reported Oct. 12 that a Daniels spokesperson directed a reporter to an opinion piece by urban affairs analyst Aaron Renn, who wrote on Urbanophile.com that "Daniels did once say that the state would take responsibility for the road back if the vendor declared bankruptcy. He clearly misspoke on that."
Environment - "County board approves 4,000-hog facility in southern Indiana despite worries of neighbors"
BROWNSTOWN, Indiana — A southern Indiana farmer has won permission from county officials to build a facility housing 4,000 hogs, even though dozens of residents are protesting the plans.More from the story:
A Jackson County zoning board voted 4-0 to approve the confined feeding operation for a site a couple miles north of the town of Crothersville. The vote about 1:25 a.m. Wednesday followed six hours of public comments before a crowd of more than 100 people who packed a courthouse meeting room, The Tribune of Seymour reported (http://bit.ly/1vzNtVC ).
Many facility opponents told the board they were worried about odors, truck traffic and possible water contamination to wells and the nearby Muscatatuck River from stored manure.
Trina McLain said she had health concerns about the hog facility being about a quarter-mile from her home and that it would harm the quality of life for nearly 500 homes in the vicinity.
"This is a very populated area, and most of these homes will be downwind from this site," she said.
Farmer Kyle Broshears said the hog facility would be built as far as possible from the closest home in the area about 40 miles north of Louisville, Kentucky.
Complaints about Broshears' plans echo those about similar large hog farms around the state. Neighbors of a proposed facility in neighboring Bartholomew County have file a lawsuit seeking to block its construction, while a judge this summer ruled against a lawsuit against four large hog farms in eastern Indiana's Randolph County.
Jackson County zoning board members said the proposal met the county requirements and is in an agricultural zone.
"If these confined feeding operations decrease your property (value), where are the people in Jackson County who live by these who have had their property decreased?" board member Sherry Bridges said. "If I lived by a CAFO and I lost $20,000 on my home, I would be in here jumping up and down on the table."
Thursday, October 16, 2014
Ind. Law - "Social Security snag a headache for Indiana same-sex marriages"
Jill Disis reports this afternoon in the IndyStar - here is a sample from the long story:
Though the Supreme Court’s action on Oct. 6 effectively legalized same-sex marriage indefinitely in Indiana and elsewhere, at least some federal policies haven’t been as quick to catch up.
Carmen Moreno, the communications director for the Social Security Administration’s Chicago office, said the agency is processing as many claims from newly married same-sex couples as possible.
“We remain committed to treating all Americans fairly, with dignity and respect,” she said. “We are bound by the law within the Social Security Act, and we have to respect state laws. We ask for continued patience from the public as we work closely with the Department of Justice to develop policies that are legally sound so we can process more claims.”
The Social Security Administration on Tuesday updated its policy to say it is accepting marriage documents issued to same-sex couples in Indiana for marriages that took place on Oct. 6 or later.
But the update leaves out specific mention of the more than 800 Indiana same-sex couples like Selby and Cox who were married in June.
“They are clearly valid,” said Ken Falk, legal director for the American Civil Liberties Union in Indiana. “I assume the federal government is going to be correcting itself.”
Ind. Decisions - Supreme Court decides one today
In Indiana State Ethics Commission, Office of Inspector General, and David Thomas, in his Official Capacity as Inspector General v. Patricia Sanchez, a 10-page, 5-0 opinion, Justice Massa writes:
When Patricia Sanchez was fired from her job at the Indiana Department of Workforce Development, she kept several items of state property in her possession. She was charged with theft, but those charges were dismissed. The State initiated an ethics proceeding against her, determined her conduct ran afoul of an administrative rule, and barred her from future State executive branch employment. We are asked to review that adjudication and sanction. Because we find the proceeding was properly before the Commission, there was sufficient evidence to support the Commission’s determination, and the sanction was within the Commission’s discretion, we affirm the Commission’s decision.
Law - "Author John Grisham says 'we've gone nuts with this incarceration' of child porn downloaders"
The Sentencing Law Blog today quotes from an interesting UK article headlined "John Grisham: men who watch child porn are not all paedophiles."
Ind. Decisions - Court of Appeals issues 0 today (and 7 NFP)
For publication opinions today (0):
NFP civil opinions today (2):
NFP criminal opinions today (5):
Law - "Same-Sex Marriage States Often Lack Job Protection Laws For Gays"
NPR's Morning Edition this morning has a 3:41 story by Miles O'Bryan that begins:
Wyoming is now among the majority of U.S. states where same sex marriage is legal. But while you can be gay and get married in Wyoming, being gay can also get you fired.Listen here.
Ind. Gov't. - "General Assembly should bag canned hunting"
From an editorial yesterday in the South Bend Tribune yesterday:
The Indiana General Assembly should oppose the adoption of any new rules regulating fenced-in deer hunting. The Agriculture and Natural Resources study committee this summer voted to send the issue to the full legislature for discussion when it begins its next session.
We’ve long opposed fenced hunting preserves for a variety of reasons, including the fact that they raise the threat of spreading chronic wasting disease and tuberculosis to other deer in the state. Some operations even have specially bred deer — such as those with massive genetically-altered racks — shipped in to attract high-dollar paying clients. There have even been reports of some facilities allowing their clients to kill animals remotely via the Internet.
Critics have argued that fenced hunting doesn’t give animals a fair chance to escape and therefore is unsportsmanlike. We think such actions can’t even be called “hunting.” * * *
Hunting is not a right, it’s a privilege. The sport should be regulated by the proper authorities and take place in open space, not confined to fenced land where animals have no chance of eluding their hunter.
Ind. Courts - "Conflict of Interest Complaint Targets Spencer Co. Prosecutor"
Kayla Moody reports today in a long story on TriStatehomepage.com. Some quotes:
Senior pictures are a glimpse down memory lane, often a look back at a different time in one's life. Such is the case for two photos circulating around Facebook pages in Spencer County. The photos, depicting convicted felon Michael Ray Cannon and Prosecutor Kelly Corne in her final year of high school, have gone viral among locals.Tina Motteler, who sent "the letter to the circuit court, says she filed a complaint with the Indiana Supreme Court Disciplinary Commission, which investigates lawyer misconduct."
"They're my senior photos from 1988-1989. I will be 44 next month," said Corne, adding she's tired of seeing negative accusations baring her name circulate Facebook.
It has been 26 since the pictures were taken, most of which Cannon spent inside a prison cell. According to the Indiana Department of Correction, he did hard time for robbery, possession of a controlled substance and escaping jail. He and Corne were high school sweethearts, a story that fueled a letter sent to the Spencer County Circuit Court in May alleging a conflict of interest. '
Corne prosecuted Cannon for possession of methamphetamine in 2012.
"It is hard in a county this small not to run across people that you have prior relationships with. Now, I understand that we dated but, again, that was 26 years ago. We have both moved on with our lives and in very different directions," said Corne. "I do not believe equals a conflict in 2012." * * *
Corne's democratic challenger, Dan Wilkinson, says he's heard about the allegations but adds he isn't putting much stock into the claims.
"In general I would say if there is a conflict or some kind of close relationship with a defendant the best thing to do is to request a special prosecutor ... I'm more focused on the issues that I care and that I hear about, which is the performance of the prosecutor's office," said Wilkinson, pointing to data he used in a recent blog post critical of his opponent.
Wednesday, October 15, 2014
Ind. Decisions - 7th Circuit decides one Indiana case today, a reversal - J.Posner: "[W]e have in this case ... a muddle created by the people running the jail"
In Randy Swisher v. Porter County Sheriff's Department (ND Ind., Nuechterlein), a 5-page opinion, Judge Posner writes:
The plaintiff brought this suit un-der 42 U.S.C. § 1983 complaining that while a pretrial de-tainee in a jail in Porter County, Indiana, he was denied medical care for a bullet wound to his abdomen, and other essential medical care, during his nine-month sojourn at the jail. He named as defendants the local sheriff plus jail per-sonnel, including the warden and other officers and the jail’s physician and head nurse. The district court, while fully crediting the plaintiff’s testimony at an evidentiary hearing, dismissed his suit for failure to exhaust administrative rem-edies. 42 U.S.C. § 1997e(a).
There was no record in the jail’s grievance log of the plaintiff’s having filed a grievance. But at the hearing he tes-tified that he’d never received, or been given access to, a copy of the jail’s grievance procedure, though he knew from other inmates of the jail that there was such a procedure and knowing this asked a guard for a grievance form but wasn’t given it.
Indiana requires every correctional facility to have a grievance procedure. Indiana Code § 11-11-1-2. * * *
[T]he magistrate judge credited the plaintiff’s testimony in its entirety. Yet surpris-ingly he ruled that the plaintiff had not exhausted his administrative remedies, because while knowing there was a grievance procedure he never submitted a written grievance. He had given up too soon, the magistrate judge reasoned, by failing to take additional action when his verbal requests for attention to his medical problems had no effect. The magistrate judge thought it enough to require dismissal of the suit that the plaintiff “was not prevented from obtaining a form,” was not “told that no grievance system existed,” and was not told that “he could not ever file a written grievance.”
A dose of common sense would have led the magistrate judge to a different conclusion. If you are an inmate and you speak to senior jail officers up to and including the Warden of the jail and are told not to file a grievance because the officers understand your problem and will resolve it without need for you to invoke the formal grievance procedure and they don’t tell you how to invoke that procedure, you are entitled to assume that you don’t have to file a written grievance. Anyway no one was willing to give the plaintiff a grievance form or even explain the grievance procedure to him, so he couldn’t have filed a written grievance even if he had thought it necessary. And can one imagine the plaintiff’s telling the warden: “you tell me I don’t need to file a grievance but I know better”? * * *
[W]e have in this case, as in Roberts v. Neal, 745 F.3d 232 (7th Cir. 2014), a muddle created by the people running the jail. When a jail official invites noncompliance with a procedure the prisoner is not required to follow the procedure. Curtis v. Timberlake, 436 F.3d 709, 712 (7th Cir. 2005). When jail personnel mislead inmates about how to invoke the procedure the inmates can’t be blamed for failing to invoke it. [Cites omitted]
The judgment in favor of the defendants is reversed and the case remanded for further proceedings consistent with this opinion.
Ind Decisions - Supreme Court issues one today
In Joseph Wysocki and M. Carmen Wysocki v. Barbara A. Johnson and William T. Johnson, both Individually and as Trustees of the Barbara A. Johnson Living Trust dated 12-17-1996, an 8-page, 5-0 opinion, Chief Justice Rush writes:
Even when a plaintiff proves a predicate crime under the Crime Victims Relief Act (CVRA), the trial court has discretion not to award exemplary damages when it thinks the conduct is not egregious enough to warrant punishment. And when a plaintiff pleads several alternative grounds for relief, the trial court has similar discretion not to impose CVRA liability at all, even when it awards compensatory damages under a different theory. Accordingly, the trial court here acted within its discretion to compensate Plaintiffs for their common-law damages, while also refusing to award attorney fees or exemplary damages under the CVRA. We granted transfer to clarify that point and reiterate several principles about CVRA liability. We affirm the trial court, though for different reasons than the Court of Appeals. * * *
A knowing misrepresentation on a Sales Disclosure Form is an intentional tort. But not every intentional tort is necessarily “so heinous as to require exemplary damages,” Citizens Nat. Bank, 637 N.E.2d at 195, or as to warrant quasi-criminal CVRA liability at all. In other words, not every intentional tortfeasor is a criminal. CVRA liability does not depend on whether the tortfeasor has been charged with or convicted of the CVRA predicate offense, nor even solely on the elements of the CVRA predicate offense. Instead, liability is also a matter of the factfinder’s discretionary judgment of whether the defendant is criminally culpable. When a court does impose CVRA liability, an award of costs and reasonable attorney fees is mandatory by the terms of the statute, even though additional exemplary damages remain discretionary. But when given a choice, the court need not impose CVRA liability when it believes ordinary tort liability will do. The trial court acted well within its discretion to make that judgment in this case, and we affirm its judgment.
Ind. Law - Validity of same-sex marriages resulting from licenses issued during the June "window" [Updated]
Yesterday the ILB issued a post headed "'Scott Walker says state will recognize June same-sex weddings' Is this an issue in Indiana?"
In a post from Sept. 20, the ILB discussed the efforts of the ACLU to obtain federal recognition of the Indiana same-sex marriages that took place during the June window -- June 25th -27th. With the SCOTUS action last week, however, federal recognition is no longer an issue, so long as the marriages are valid.
A memo from a Deputy AG, who is speaking on behalf of Attorney General Zoeller, dated Oct. 13th and sent to all county clerks covers another issue: After obtaining a marriage license during the June 25-27 window, did the same-sex marriage ceremony also have to take place during the window for the union to be valid? The AG says no, in a chart citing the applicable statutes. The requirements are (1) that the marriage occurred within 60 days of the license being issued, and (2) that the marriage was recorded within 30 days thereafter. And (3) that the Clerk recorded the marriage.
These are, of course, the same statutory requirements that apply with any Indiana marriage.
Then the memo continues:
However, one possible legal argument is that the stay granted by the 7th Circuit tolled the statutory deadlines, potentially meaning that the licenses may not be expired, as the order made it appropriate for clerk’s to delay processing licenses while the stay was in effect.But, it cautions, those couples who obtained a license in June and have not yet used it might be better off obtaining another one, rather than relying on the tolling argument.
See this NWI Times story by Dan Carden for more.
[Updated at 6:18 PM] Apparently the memo from AG Zoeller's office discussed above was too clear. The ILB has now obtained an email headed "Update from Attorney General's Office on Marriage License" written by Bryan Corbin, Public Information Officer:
Members of the Media:Again, the chart in the earlier AG memo indicates clearly to the ILB that if a couple obtained their license during the window, were married within 60 days of the license being issued, returned their records within 30 days after the wedding, and the clerk's office recorded the marriage, it is valid.
The Indiana Attorney General’s Office on Monday sent a memorandum to county clerks in Indiana’s 92 counties regarding questions that clerks could face in light of recent court rulings that now permit same-sex marriage in Indiana. The memorandum noted there are four steps in the marriage license process: applying for a marriage license from the clerk’s office, solemnizing the marriage within 60 days, returning the signed marriage record to the clerk within 30 days, and the clerk recording the record. Whether a couple’s marriage license is legally valid or not may depend on where a couple stood in the four-step process between the date a court order permitted same sex marriages to begin, June 25, the date that court order was stayed, June 27, and the date the stay was lifted allowing such marriages to resume, Oct. 7. Marriages solemnized during the 2 ½-day window in June where the records were returned to the clerk’s office within 30 days are likely valid, even if the returned marriage record was not immediately recorded by the clerk’s office at that time.
The memorandum noted that to avoid any question about validity, county clerks can suggest that any applicants who obtained licenses in June but did not immediately solemnize marriages or return the records at that time may wish to re-apply for licenses. County clerks have the discretion to offer refunds of licensing fees previously paid for couples who wish to re-apply for licenses and resubmit the paperwork to ensure validity.
County clerks are encouraged to consult their county attorneys or the Attorney General’s Office with respect to all questions bearing on their legal duties to issue marriage licenses.
You can attribute this to me. The Attorney General’s Office’s memo of Monday to clerks is attached, and at this link. [ILB - it is the same memo the ILB linked earlier]
But Corbin now states: "Marriages solemnized during the 2 ½-day window in June where the records were returned to the clerk’s office within 30 days are likely valid, even if the returned marriage record was not immediately recorded by the clerk’s office at that time." In other words, licensed AND married during the window MAY be okay per the AG's office, even if not recorded during the window. That is quite a backtrack, IMHO.
Ind. Decisions - Court of Appeals issues 1 today (and 1 NFP)
For publication opinions today (1):
In Erik Morales v. State of Indiana, an 8-page opinion, Judge Mathias concludes:
Morales has not overcome the presumption that he received the effective assistance of trial counsel. Accordingly, the post-conviction court properly denied Morales’s petition for post-conviction relief.NFP civil opinions today (0):
NFP criminal opinions today (1):
Courts - "Regulatory Case in North Carolina Appears to Trouble Supreme Court "
WASHINGTON — Several justices at Supreme Court arguments on Tuesday sounded troubled over efforts by a North Carolina dental board to drive unlicensed teeth-whitening services out of business.
“The object of the antitrust laws is to prevent private individuals who compete with each other in business from getting together and making agreements,” Justice Stephen G. Breyer said. “That kind of interest seems present here.”
As the argument progressed, though, some justices seemed to grow frustrated with the case, musing about how hard it would be to rule against the dental board without also upending professional regulation in other fields.
“It seems to lead to a case-by-case, state-by-state, board-by-board inquiry by the federal courts as to whether the members of a regulatory body are really serving the public interest or whether they have been captured by some special interest,” Justice Samuel A. Alito Jr. said.
The case, North Carolina State Board of Dental Examiners v. Federal Trade Commission, No. 13-534, illustrated a common worry for the justices — that the resolution of the dispute will have negative consequences in other cases. * * *
Justice Anthony M. Kennedy also appeared to be troubled by the apparent conflict of interest. “If the board says we think what’s good for dentistry is good for North Carolina,” he said, “our cases say that’s not enough because you’re pursuing your self-interest.”
Mr. Mooppan cautioned the justices not to disrupt “the most traditional way of regulating the professions that states have historically used and have consistently used for a long time.”
A supporting brief from the American Medical Association and several other medical groups said that a ruling against the dental board would discourage doctors from serving on professional boards and disrupt a “150-year tradition.” Several bar associations filed a brief making similar points on behalf of lawyers.
Justice Antonin Scalia said a ruling against the board could also threaten judges. “What do you do about a state Supreme Court that sets the ethics rules for the legal profession, including what constitutes the unauthorized practice of law?” he asked.
Justice Breyer said he would draw the line at neurologists, allowing them to decide who can practice brain surgery. “I don’t want a group of bureaucrats deciding that,” he said. “I would like brain surgeons to decide that.”
On this point, at least, Justice Scalia agreed. “I want a neurologist to decide it,” he said.
Ind. Law - "Charged with OWI? These Indiana lawyers can help"
Kristine Guerra today in the Indianapolis Star has a story highlighting seven Indiana attorneys:
... who specialize on criminal defense, particularly on OWI (operating while intoxicated) or OVWI (operating a vehicle while intoxicated). This list is based on ratings by superlawyers.com. The website's selection is based on peer nominations and evaluations by practice area. This list is neither comprehensive nor exclusive.More from the story:
In Indiana, if you're charged with an OWI for the first time, you're looking at a jail sentence of up to a year and a maximum $5,000 fine.In addition to Tomkins, the story highlights (with photos) Kathleen Sweeney, of Sweeney Hayes Attorneys at Law LLC in Indianapolis; Frederick Vaiana and J.J. Paul III, of Voyles Zahn & Paul Attorneys and Counselors at Law in Indianapolis; Patrick Arata, Arata Law Firm in Fort Wayne; Marc Lopez, of Marc Lopez Law Firm in Indianapolis; and Mark Foster, of Foster O'Daniel Hambridge & Lynch, LLP in Evansville.
If you're charged for the third time, you're looking at up to three years in jail and a maximum fine of $10,000. Or let's say you seriously injured or killed someone. You're facing a Level 5 or 6 felony and up to six years in prison.
So, the first question you might want answered is: Who can defend me? * * *
The second question you might want to ask is: How much will it cost me? The short answer: It depends.
If it's your first-time offense, nobody got hurt and you didn't drive away, expect to spend at least $2,000, Indianapolis OWI attorney John Tompkins said.
"If you're spending less than $1,000, that is a huge red flag on the quality of representation you will get," he said. "You're better off with a public defender who has some experience with the court you're appearing in."
If you're case is more complicated, expect to pay in the double digits for good representation. Let's say a serious injury is involved and you've had multiple prior offenses, or you had illegal drugs in the car, or a controlled substance was found in your system, you're looking at $7,500 to $10,000 or more in attorney fees.
That's because the more complex a case is, the more time an attorney has to spend investigating, which includes blood analysis, discovery and more.
"What you're doing is you're buying a lawyer's time," said Tompkins of Brown Tompkins Lory & Mastrian Attorneys at Law in Indianapolis. "Are we going to spend a few hours examining blood testing or blood draw?"
It's important to note that expensive doesn't always mean better.
Not every private attorney is necessarily better than a public defender, and not everyone who charges $5,000 is really good, said Tompkins, who worked as a public defender before switching to private practice.