Saturday, March 08, 2014
Courts - Long same-sex marriage trial in Michigan ended Friday
This Feb. 23rd ILB entry is headed "Federal trial begins Tuesday in Michigan same-sex marriage challenge."
Late yesterday afternoon, Steve Friess of BuzzFeed posted an update subheaded "Without the star power, location, and timing of the trial against California’s Proposition 8, the trial against Michigan’s marriage amendment has taken place under the radar. A decision in coming weeks could change all that." Some quotes:
[T]estimony in only the third courtroom trial over same-sex couples’ marriage rights in U.S. history abruptly ended with an understated flourish befitting proceedings that, for all their historic significance, nonetheless flew largely under the national radar when compared to the attention paid to similar cases in Virginia, Utah, and elsewhere.
The two-week trial – which now awaits a written decision from [ U.S. District Court Judge Bernard Friedman] that he said wouldn’t come before March 17 – was the first such event since 2010 when a federal judge considered the constitutionality of California’s Proposition 8. The first trial took place in Hawaii in the 1990s, but the result in support of marriage equality was never realized because Hawaii voters passed a constitutional amendment allowing the legislature to ban same-sex couples from marrying.
Prop 8, like the Michigan marriage statute, was a constitutional ban on same-sex marriage imposed by voters. The federal judge struck down the ban, and last June, the Supreme Court let that decision stand in dismissing the attempted appeal by supporters of the amendment.
Activists on both sides of the issue flocked to California for the Prop 8 case, each issuing a flurry of press releases at every turn. Helmed by big-name lawyers Ted Olson and David Boies, it was the subject of lawsuits over whether testimony should be broadcast live or at least on delay and later gave rise to a play written by Oscar-winning screenwriter Dustin Lance Black and performed by an A-list Hollywood cast.
By contrast, the Michigan trial drew just a couple dozen protesters on both sides to a combined picket line outside the courthouse, often in freezing temperatures and brutal winds. The courtroom was rarely full, not even on Tuesday when attorneys for April DeBoer and Jane Rowse cross-examined controversial sociologist Mark Regnerus. Regnerus’ findings, which claim children fare worse when raised by same-sex couples than their married biological parents, have been called into question by academics and LGBT advocates but have been cited by opponents of same-sex couples’ marriage rights in several cases pending around the country. * * *
Regardless of the trial’s lower profile, it produced a litany of key moments that may impact the future of ongoing marriage litigation — including what most legal experts see as an inevitable Supreme Court case — depending on how Friedman rules. Should he strike down the ban, for instance, the withering cross-examinations undergone by Regnerus and other experts called by the state this week may be cited in briefs for cases in other states, [the plaintiffs' attorney Ken] Mogill said. * * *
Mogill was practical about whether this case would be the one heard at the Supreme Court — while pointing to advantages that the case’s posture would bring to the court.
“Having a factual record is significant as appellate courts consider these cases, certainly, and that’s something the judge was very cognizant of” when he decided not to issue a summary judgment in October, Mogill said. “We’re very happy with the state of the record in this case. We think it supports our position, and what the Supreme Court’s going to do, they’re going to do, and they’re going to do it when they do it. Whichever case gets there first is just absolutely fine.”
Friday, March 07, 2014
Ind. Decisions - Supreme Court decides one today
In In the Matter of the Termination of the Parent-Child Relationship of E.M. and El.M., E.M. v. Indiana Department of Child Services, a 24-page, 4-1 opinion, Justice Rush writes:
Decisions to terminate parental rights are among the most difficult our trial courts are called upon to make. They are also among the most fact-sensitive—so we review them with great deference to the trial courts, recognizing their superior vantage point for weighing the evidence and assessing witness credibility. Because a case that seems close on a “dry record” may have been much more clear-cut in person, we must be careful not to substitute our judgment for the trial court when reviewing the sufficiency of the evidence.
We granted transfer to reiterate that caution. Father’s eventual efforts to establish a relation-ship with his children were commendable, and DCS’s family preservation efforts with him could have been stronger. Yet the standard of review requires us to consider only the evidence favorable to the judgment—and in turn, to respect the trial court’s reasonable conclusion that Father’s efforts were both too little in view of his violence and earlier pattern of hostility toward services, and too late in view of the children’s urgent need for permanency after several years in out-of-home placement. The evidence was sufficient to support termination, so we defer to the trial court and affirm its judgment. * * *
Dickson, C.J., and David and Massa, JJ., concur.
Rucker, J., dissents with separate opinion. [which begins, at p. 16 of 24] In a carefully worded and well reasoned memorandum decision the Court of Appeals concluded there was insufficient evidence to support the trial court’s judgment terminating Father’s parental rights. In re E.M., No. 45A03-1208-JT-370 (Ind. Ct. App. May 8, 2013). It therefore reversed the judgment of the trial court. I agree with the Court of Appeals and thus respectfully dissent from the majority’s contrary view. * * *
[and at p. 24] Finally, in affirming the trial court’s judgment, the majority says: “the evidence here was close” and “the trial court could reasonably have reached either conclusion [to permit or deny the State’s petition for termination of parental rights].” Slip op. at 14. But this is not a game of horseshoes and close is not good enough. In order to terminate a parent’s parental rights the State must prove its case by clear and convincing evidence. It has failed to do so. Therefore I would reverse the trial court’s judgment.
Ind. Courts - "Same-sex couples sue Indiana governor, attorney general over gay marriage ban" [Updated Again]
Suit has been filed today in federal court, in the Southern District of Indiana, according to this brief story from the New Albany News & Tribune. A quote:
LOUISVILLE — Four same-sex couples from Southern Indiana are suing Indiana Gov. Mike Pence and Attorney General Greg Zoeller in federal court to allow them to legally marry or to have their marriages recognized.This is not the case it had been anticipated that the Indiana ACLU would file.
Louisville law firm Clay Daniel Walton & Adams announced the lawsuit today at its offices. The lawsuit was filed in Southern District of Indiana, which has a courthouse in New Albany. The couples are from Clark and Floyd counties and it's the only such federal case involving Indiana.
The law firm is representing four couples in a similar case in Kentucky. In that case, a federal judge ruled last month that the state must recognize legal marriages from other states.
[Updated at 1:58 PM] Here is the story from Chris Kenning of the Louisville Courier Journal. Some quotes:
Four gay couples are filing suit in the Southern District of Indiana to seek to force that state to recognize gay marriage.The ILB will post the complaint as soon as a copy is located.
The suit mirrors the current case in Kentucky, where a federal judge ordered the state to recognize same-sex marriages legally performed elsewhere.
Daniel J. Canon of Clay Daniel Walton & Adams of Louisville announced at a noon press conference that he is filing the suit for the couples who either want to want to get married or have their marriages recognized in Indiana.
[Updated at 2:20 PM] Here is the complaint in Love v. Pence.
Ind. Decisions - Court of Appeals issues 0 today (and 4 NFP)
For publication opinions today (0):
NFP civil opinions today (1):
NFP criminal opinions today (3):
Ind. Gov't. - "Environmental groups seek probe of Duke plant: Controversial Edwardsport plant operating at 37 percent of capacity"
John Russell's story today in the Indianapolis Star reports:
A coalition of environmental and citizens’ groups called on Indiana regulators to launch a formal investigation into a growing list of problems and delays that have sharply crimped output of Duke Energy’s controversial Edwardsport power plant.
In a motion filed Thursday with the Indiana Utility Regulatory Commission, the groups say the plant has been beset by failures and outages that have cut deeply into its ability to generate electricity, even as customers continue to pay for construction and repairs on their monthly electric bills.
The plant, in southwestern Indiana, generated only 4 percent of its maximum capacity in January. From June to December, it generated an average of 37 percent of maximum capacity. * * *
In a 24-page motion, with numerous exhibits, the groups argue that Duke prematurely declared Edwardsport to be in commercial operation last summer, before it was “actually used and useful for the convenience of the public.”
Six days after the opening, the plant broke down and remained offline for nearly a month. Since then, the plant has suffered numerous problems, including leaking valves, cracked pipes and frozen machinery.
The environmental groups say that by opening the plant before it was ready, Duke could try to recover repair costs from electricity customers, despite a settlement the company reached in 2012 the set a cap of $2.595 billion, plus millions in financing costs.
Law - "Can Indiana same-sex couples marry in Illinois?"
The answer seems to be, "Yes, but ...".
As reported in this Feb. 21st ILB post, although the new Illinois statute legalizing same-sex marriage does not take effect until June 1st, in a successful class-action suit relating to Cook County a federal judge has ruled that same-sex marriage may proceed immediately in Cook County, Illinois.
A column called "Ask Gerry" in the Chicago Phoenix, written March 5th by Gerald Farinas, takes an in-depth look at whether Indiana same-sex couples may marry in Illinois. The answer is comprehensive and links to other useful information, such as a 2-page FAQ from the Cook County Clerk.
But, although the Cook County FAQ says:
If we live in a different state, can we get a marriage license in Cook County?That may not be enough. As the Phoenix column points out (in a section perhaps added later, after several Hoosiers submitted comments), Illinois statute still provides:
Yes, even if same-sex marriage is not legal in your state. Marriage licenses are issued in the county where the ceremony will occur, so you must get married in Cook County if you get your license here.
(750 ILCS 5/217) (from Ch. 40, par. 217)In other words, as "Ask Gerry" notes:
Sec. 217. Marriage by Non-residents - When Void.) No marriage shall be contracted in this state by a party residing and intending to continue to reside in another state or jurisdiction if such marriage would be void if contracted in such other state or jurisdiction and every marriage celebrated in this state in violation of this provision shall be null and void.(Source: P.A. 80-923.)
The obtaining of a marriage license, however, does not mean that the couples’ home state will acknowledge and validate it as legal. It would take legislation or a federal court order in Indiana to make that change. * * *
[E]ven within the State of Illinois, that marriage may not be legal.
Thursday, March 06, 2014
Ind. Decisions - 7th Circuit decides one Indiana case March 5th
In USA v. Carol Woodard (SD Ind., McKinney), a 16-page opinion, Judge Williams writes:
Defendant Carol Woodard, the managing director of a non‐profit organization, was indicted on one count of health care fraud for collecting $8.9 million from Medicaid based on her submissions of phony healthcare claims. As the first trial date approached, Woodard filed the first of many motions to change counsel. After the district court appointed a third attorney, it sua sponte ordered Woodard to undergo a competency examination because it felt that she might not understand the nature of the proceedings against her. After a doctor concluded that Woodard was competent to stand trial because she knew and understood the charges against her and was able to assist in her defense, the court found Woodard legally competent to stand trial. Nearly two years later, after several more delays and new attorneys, Woodard asked for a second competency evaluation, which the court denied. Woodard pled guilty and was sentenced to 80 months’ imprisonment.
On appeal, Woodard argues that the district court abused its discretion by not ordering a second competency evaluation. Because the district court reached a reasonable conclusion after it reviewed a previous psychological evaluation, considered the advice of two mental health professionals, and considered Woodard’s interactions with her attorney, we conclude that the district court did not abuse its discretion. In addition, although Woodard argues that she did not knowingly and voluntarily plead guilty during her Rule 11 colloquy, a review of the record shows that she did and that no red flags were raised that would alert the court to the contrary. Finally, we agree with her last argument that the district court violated the Ex Post Facto Clause at sentencing by sentencing her under the wrong version of the Sentencing Guidelines. Therefore, we remand this case for resentencing, but affirm the district court’s judgment in all other respects.
Ind. Decisions - Supreme Court decides one today
In Fayette County Board of Commissioners v. Howard Price, a 4-page, 4-0 opinion, Chief Justice Dickson writes:
Concluding that the decision of the Fayette County Board of Commissioners not to reappoint its County Highway Supervisor was a ministerial decision, not a quasi-judicial one, we hold that such employment decision was not subject to judicial review. * * *
The "nature, quality, and purpose" of the Board's action was not a "determination of issues" nor a "rendition of a judgment or final order regarding the parties' rights, duties, or liabilities." In the absence of these two critical factors, we find as a matter of law that the Board's em-ployment decision regarding Price was administrative and ministerial, not quasi-judicial. It is thus not subject to judicial review.
Ind. Decisions - Even more on: Supreme Court appoints special judge in Justice v. Justice case
Updating this post from Feb. 21, where it was reported that the Feb. 18th filing in the Justice case was not available for public release because of the Court's concerns regarding AR 9, the rule that governs access to court records, it now appears from the docket that new documents have been filed March 3rd:
VERIFIED RESPONSE TO TRIAL RULE 53.2 MOTION AND REQUEST TOFor background, see this Feb. 28th ILB post and its links.
REINSTATE VACATED ORDER (WITH EXHIBITS ON GREEN) (6) CERTIFICATE
OF SERVICE (6) BY MAIL 03/04/14. ENTERED ON 03/03/14 MC
Ind. Decisions - Court of Appeals issues 2 today (and 7 NFP)
For publication opinions today (2):
In In Re the Marriage of: Frank J. Ozug v. Karen S. Ozug, a 7-page opinion, Judge Kirsch writes:
Frank J. Ozug (“Husband”) appeals the trial court’s decree of dissolution (“the Decree”), claiming that it was error to award Karen S. Ozug (“Wife”) spousal maintenance despite a finding that there was no credible evidence of Wife’s medical condition and that it was error to award Wife more than 50% of the marital estate. Wife cross-appeals, arguing that Husband’s notice of appeal was not timely filed. We vacate and remand. * * *In Vinod C. Gupta v. Henry S. Busan, Heritage Federal Credit Union, an 8-page opinion, Judge Robb writes:
In the present case, Husband had the right to file a motion to correct error, and timely filed his notice of appeal after his motion was deemed denied. We conclude that his notice of appeal was timely, and we have jurisdiction over this appeal. * * *
Based on the stated inconsistencies and lack of information, we are unable to conduct a proper review of the property distribution and the grant of spousal maintenance in the present case. We, therefore, vacate the trial court’s judgment and remand for proceedings to remedy these problems and determine the issues of spousal maintenance and distribution of the marital estate.
Vinod C. Gupta appeals the trial court’s denial of his motion for summary judgment and its grant of summary judgment in favor of Henry S. Busan. He raises two issues for our review, which we restate as: whether the trial court erred in finding Gupta failed to comply with statutory notice provisions for obtaining a tax deed, and whether the trial court erred in granting summary judgment in favor of Busan. Concluding that Gupta complied with the statutory notice provisions, we reverse and remand. * * *NFP civil opinions today (3):
Under the unique facts presented in this case, where the parties and trial court did not follow the established procedures to set aside a tax deed and where the parties did not address the procedural deficiencies upon appeal, we conclude that the trial court erred in finding Gupta’s notices sent certified mail, but without return receipt requested, statutorily deficient. We further conclude that Gupta provided notice reasonably calculated to inform Busan of the tax sale and petition for the tax deed. Therefore, we reverse the trial court’s grant of summary judgment in favor of Busan and denial of summary judgment for Gupta. We remand for a grant of summary judgment quieting title for Gupta.
NFP criminal opinions today (4):
Ind. Decisions - Supreme Court posts corrected version of Judge Brown disciplinary opinion
The Supreme Court has now posted a new version of the March 4th opinion in In re Brown, marked "Corrected on March 5, 2014." However, there is no indication of what is the correction.
Here is the March 4th ILB post linking to the earlier version.
[More] The correction is in the case docket:
THE ORIGINAL PER CURIAM OPINION HANDED DOWN IN THIS CASE ON
MARCH 4, 2014, CONTAINS A NON-SUBSTANTIVE OMISSION. SPECIFICALLY
THE NAME "ELIZABETH DAULTON" SHOULD HAVE BEEN INCLUDED AS ONE OF
THE ATTORNEYS FOR THE COMMISSION ON JUDICIAL QUALIFICATIONS.
THIS INADVERTENT ERROR WAS CORRECTED BY A REVISED OPINION THAT
WAS DELIVERED TO THE CLERK WITH THIS NOTICE, AND THE CORRECTED
OPINION CONTAINS THE WORDS "CORRECTED ON MARCH 5, 2014" BENEATH
THE DATE OF THE OPINION. NO OTHER CHANGES WERE MADE TO THE
ACCORDINGLY, THE FOLLOWING SHALL OCCUR: (1) THIS NOTICE OF
CHANGE SHALL BE ENTERED ON THE CHRONOLOGICAL CASE SUMMARY; (2)
ALL COUNSEL OF RECORD SHALL BE SERVED WITH A COPY OF THE
CORRECTED OPINION AND THIS NOTICE; (3) ARRANGEMENTS SHALL BE
MADE FOR REMOVING THE ORIGINAL OPINION FROM THE COURT'S WEBSITE
AND POSTING THE CORRECTED OPINION IN ITS PLACE; AND (4) A COPY
OF THIS NOTICE SHALL BE SENT TO THOMSON/REUTERS, LEXISNEXIS, AND
KEVIN S. SMITH, CLERK/ADMINSTRATOR
Ind. Courts - "Supreme Court continues weighing future of Clark Co. Drug Court participants"
That is the headline to this long story today, reported by Charlie White in the Louisville courier Journal. Some quotes:
The drug-treatment program was suspended in mid-February by the Indiana Supreme Court following allegations of unlawful conduct by drug court staff and practices harmful to participants.ILB: See also this story from last Sunday in the News & Tribune.
It’s the first suspension of any problem-solving court in Indiana since the state began certifying them 11 years ago, according to officials with the state’s high court.
“I have full trust in the Indiana Supreme Court to evaluate any unlawful conduct by Clark County judges, and expect the investigation will be carried out thoroughly,” state Sen. Jim Smith, R-Charlestown, said.
[The 60 current program] participants are waiting on state officials to decide whether they will get to complete the program under a temporary certification.
Sarah Kidwell, outreach coordinator for the state Supreme Court, said Monday that state officials will work with the county to address outstanding issues regarding participants who agreed to enter the drug-treatment program. * * *
Eight plaintiffs in a federal class-action suit filed last month are seeking monetary damages and a court injunction. The suit includes people who allege they were arrested or were subject to arrest by drug court workers with no arrest powers, incarcerated for more than 72 hours without hearings or other due process, or face the possibility of being in violation of drug court or probation through Judge Jerry Jacobi’s court.
On Friday, Jacobi transferred all drug court cases to fellow Clark Circuit Judge Vicki Carmichael’s court, which is seeking temporary certification from the state to allow existing participants a chance to complete the program. * * *
Also on Friday, Jacobi and other Clark County officials who are listed as defendants in the federal suit were granted an extension to respond to the initial complaint. The response deadline is now April 10. * * *
While the Judicial Center evaluates the drug court, local residents can share complaints or concerns about potential wrongdoing in the Clark County court system by contacting the Judicial Qualifications Commission at (317) 232-4706 or going to www.in.gov/judiciary/jud-qual. All complaints and subsequent investigations are confidential.
Wednesday, March 05, 2014
Ind. Gov't. - Driving on a suspended license termed “a crime of poverty.”
Surprisingly, at least to the ILB, Indiana driving privileges may be suspended for numerous offenses having nothing to do with driving. Maureen Hayden of CNHI reported yesterday on HB 1279, which is currently awaiting concurrence in the House (a motion to concur in the Senate amendments failed today by a vote of 50-35).
The 127-page bill deals with a number of motor vehicle issues, including making changes to statutes dealing with driver's license suspension and revocation. Those changes are the focus of Hayden's story. A few quotes:
INDIANAPOLIS — Unpaid parking fines, falling behind on child support, drunken driving: So many offenses trigger a suspended driver’s license in Indiana that more than a half-million Hoosiers have lost their driving privileges.ILB: Hayden has a lot more information that didn't fit in the story, such as:
In fact, driving on a suspended license is the most common charged offense, prosecutors say.
A bill passed by the House and Senate hopes to keep more drivers legally on the road, supporters say, by eliminating most automatic license suspensions for non-traffic offenses and giving judges more leeway over how the penalty is used. The bill also creates a “special use” license with strict conditions such as the use of technology that monitors when certain drivers get behind the wheel.
Supporters say the law goes a long way toward helping the high number of Hoosiers with suspended licenses get back on the road legally without compromising public safety. There are about five million licensed drivers in Indiana and more than 556,000 who currently have their licenses suspended, according to the state Bureau of Motor Vehicles. * * *
David Powell, head of the Indiana Prosecuting Attorneys Council, said he’s seen many people who had few transportation options other than a car during the 20 years he spent as chief prosecutor in a rural Indiana community. People who lost a license didn’t want to lose their job so they kept driving on a suspended license, without insurance, and risked getting caught.
Powell called driving on a suspended license “a crime of poverty.”
“In my county, most of the cases I saw were people who couldn’t afford their reinstatement fees so they just kept driving and just kept getting caught and caught and caught,” he said.
That kind of decision has a spiral effect: The first time someone is caught driving with a suspended license, it’s a Class A infraction with a $150 fine. The second offense is a Class A misdemeanor with a fine up to $5,000 and up to a year in jail. A third time is Class D felony, with a jail term up to three years and a fine up to $10,000. Once more and it’s a Class C felony and up to 8 years in prison.
License reinstatement fees escalate from $100 to $300 for each offense.
The law currently allows judges to offer probationary or hardship licenses to some people who’ve had their driving privileges automatically suspended.
But the rules for granting those are prohibitively restrictive, said Chris Daniels, a lawyer with the Prosecuting Attorneys Council who helped draft the law with McMillin and Young.
“A big part of our goal is to keep the truly dangerous drivers off the road while letting people who’ve made a mistake but who can drive safely back on the road legally,” Daniels said. “Right now, we don’t have much of a mechanism in place to do that.”
Right now we have at least 8 OWI charges that carry a mandatory suspension. Most of those mandatory suspensions will go away. So will the mandatory suspensions for a lot of the non-traffic offenses. There are some administrative suspensions that 1279 is not addressing. The big one is refusing to take a chemical test when an officer has probable cause to believe you are operating while intoxicated. That mandatory suspension stays in place.It would be useful to see a chart or table setting out all the offenses which currently can lead to a suspension, along with how they would be affected by this bill.
In addition, your license will still be suspended once a judge finds PC on an OWI case, but the judge can then go back and modify the suspension. I think failure to appear in court for an infraction will also still carry an automatic license suspension. Failure to pay child support still results in a suspension.
Ind. Gov't. - Still more on "Purdue University Rejects Donor's Reference to 'God's physical laws' on Plaque Honoring Parents' Legacy" [Updated]
Updating this post from March 2nd, a settlement has been reached between the donor and Purdue University, according to a news release from Liberty Institute. Purdue University approved the following wording to appear on the plaque of alumnus Dr. Michael McCracken:
“Dr. Michael McCracken: ‘To all those who seek to better the world through the understanding of God's physical laws and innovation of practical solutions.’ Dr. Michael and Mrs. Cindy McCracken present this plaque in honor of Dr. William ‘Ed’ and Glenda McCracken and all those similarly inspired to make the world a better place.”The phrase "God's physical laws," which was the basis for the earlier rejection, remains.
Dr. McCracken's accompanying statement concludes:
“We are also especially grateful to the Liberty Institute and Covington & Burling LLP for providing their time and resources to help us resolve this issue. Without people serving as they have, most would not have the resources to have their voices heard.”The amount of the gift to Purdue was $12,500. It is unclear from the release re whether Covington & Burling's services were donated.
[Updated on March 6th] The Lafayette Journal Courier has a story this morning by Hayleigh Colombo that begins:
Purdue University has decided after all to allow a donor to reference “God’s physical laws” on a plaque recognizing the alumnus’ donation to the university.
The West Lafayette research university will avoid a First Amendment fight between itself and a donor, engineering graduate Michael McCracken, who alleged that Purdue was violating his rights by not allowing him to reference God on a plaque commemorating his parents. The plaque, in a renamed conference room in Herrick Laboratories, was offered to him after McCracken made a $12,500 donation to the university in 2012.
The argument came to a head last week when Purdue’s legal counsel, Steve Schultz, said Purdue’s status as a public institution opened the door to a costly and lengthy legal battle if Purdue accepted McCracken’s proposed language for the plaque, which referenced “God’s physical laws.”
McCracken and his lawyers argued that the speech would be considered “private speech” and would not put the university in danger.
Ind. Gov't. - An overview of the brouhaha caused by the deletion of a single provision in HB 1380
The Indiana Adjusted Gross Income Tax Act of 1963 is set out at Indiana Code Title 6, Article 3. The first Chapter, IC 6-3-1, contains the definitions that apply throughout the Article.
The definition of adjusted gross income in Sec. 3.5 explains that Indiana's adjusted gross income tax is tied to "adjusted gross income" (as defined in Section 62 of the Internal Revenue Code).
Sec. 11(a) of the definitions explains that:
The term "Internal Revenue Code" means the Internal Revenue Code of 1986 of the United States as amended and in effect on January 1, 2013.A glance at the History Line at the end of Sec. 11 shows that the section has been amended nearly every year the General Assembly has been in session since it was enacted in 1963. The reason why was explained in this April 11, 2007 ILB post:
This section defines what the Indiana Code means when it references the federal "Internal Revenue Code." The federal law changes nearly every year.This year, language to update the references in IC 6-3-1-11 to "Jan. 1, 2014" was included as SECTION 8 in HB 1380, a bill covering a miscellany of tax and administrative issues, as can be gleaned from the digest to the Feb. 28th version of the bill. You can find mention of SECTION 8's content about a third of the way down p. 2 of the digest: "Updates references to the Internal Revenue Code."
Does a reference in Indiana law to the "Internal Revenue Code" incorporate all the latest changes made by Congress? Yes, but only because the Indiana law is changed each year to reflect the most recent version of the IRC.
What is that? Because the General Assembly cannot delegate its lawmaking authority to the federal government.
On Monday, March 3, when the House bill was on second reading in the Senate, Senator Brandt Hershman, the bill's sponsor, successfully offered a motion to delete SECTION 8. It read: "Page 7, delete lines 12 through 42. Page 8, delete lines 1 through 34." Period. He added no new language to the bill.
As related in this ILB post yesterday, the ILB first learned about this motion striking SECTION 8 the next morning, through a brief, confusing and inaccurate news story that did not identify the bill and was headed "Indiana measure would ban same-sex marriage tax benefits."
Senator Hershman contacted the ILB several times during the day yesterday, helping me to understand his intent, including this statement:
We couple our tax code selectively to the federal IRC. If we did a blanket coupling, it would potentially require recognition and joint filing under state law.Indiana adjusted gross income (AGI) is derived from the AGI figure on your federal tax form. You copy that number, if you are married, from your joint tax form onto your Indiana tax form.
We aren’t doing anything to the federal ability to file jointly, we’re just not creating a state right to do so through coupling to the federal code.
The U.S. Department of the Treasury and the Internal Revenue Service (IRS) today ruled that same-sex couples, legally married in jurisdictions that recognize their marriages, will be treated as married for federal tax purposes. The ruling applies regardless of whether the couple lives in a jurisdiction that recognizes same-sex marriage or a jurisdiction that does not recognize same-sex marriage.So for the purposes of their federal tax return, Indiana same-sex couples, legally married in another state, will be treated as married for federal tax purposes.
The ruling implements federal tax aspects of the June 26th Supreme Court decision invalidating a key provision of the 1996 Defense of Marriage Act.
What of the Indiana tax returns of Indiana same-sex couples legally married in another state? The Indiana Department of Revenue issued guidance this fall, providing that because Indiana does not recognize same-sex marriages, same-sex couples who file federal returns with a married filing status must each file their Indiana income tax returns with a filing status of single. To accomplish this, each same-sex spouse needs to fill out a "sample" federal form as if single, and apply the AGI derived to an individual Indiana tax return.
Senator Hershman's concern, as set out in this story this morning in the Indianapolis Star, reported by Barb Berggoetz, was:
... that [IDOR] opinion takes precedent, unless the legislature changes the law. However, he said if lawmakers don’t “decouple” state tax policy in HB 1380 from the broad federal tax changes, then the practice of joint filing for same-sex couples would be adopted here.Some, including myself, would differ with Sen. Hershman's answer, but the Senate on second reading accepted it.
Since Indiana has an existing state law banning same-sex marriage, Hershman said, “we don’t want to do that because a tax bill is not the appropriate venue for a debate on same-sex marriage.”
A different approach: IC 6-3-1-11 governs what version of the Internal Revenue Code (a federal statute) is referenced in the Indiana adjusted gross income tax law. Currently it is the IRC as amended and in effect Jan. 1, 2013. Sen. Hershman's concerns seems to be that by upping that reference to Jan. 1, 2014, we would also be adopting DOR Revenue Ruling 2013-17. I do not believe that to be the case, but it would have been easy enough to add another exception to IC 6-3-1-11, rather than leaving the entire adjusted gross income tax law tied to the Jan. 1, 2013 version for another year. (There also appear to be several errors in the 2013 version of IC 6-3-1-11 that need to be corrected.)
Finally, yesterday the Senate voted on HB 1380 on final passage. SECTION 8 had been excised the day before. The bill contained a laundry list of tax and administrative provisions. The vote on third reading, which was 41-6, had nothing to do with which version of the IRC is referenced in state tax law. But many in the press continued to make that absent provision of HB 1380 the story. For example, where is this provision in HB 1380?
Separately, the legislation would put a previously announced Indiana Department of Revenue rule into state law by requiring gay Hoosiers who are married in other states to file their Indiana income tax returns as individuals. While federal law permits joint returns for married gay and lesbian couples, Indiana still prohibits gay marriage and state lawmakers said the state tax code should reflect that prohibition. NWI TimesBarb Berggoetz's story today in the Indianapolis Star gives a clearer picture, although I disagree with the lede:
On the heels of recent demonstrations emotions were running high after an amendment was passed Monday spelling out that same sex couples in Indiana would not be able to file their state taxes jointly, even though they can now file federal taxes jointly. WISH-TV
The Indiana Senate on Tuesday deleted a state tax provision that would have inadvertently allowed same-sex couples to file joint tax returns in Indiana.Summer Ballentine's story for the AP takes a different approach, looking at the impact of Indiana's not allowing legally married same-sex couples to file as married on their Indiana tax returns.
Ind. Decisions - Court of Appeals issues 0 today (and 1 NFP)
For publication opinions today (0):
NFP civil opinions today (0):
NFP criminal opinions today (1):
Ind. Decisions - More on: Marion County Superior Court Judge Kimberly Brown removed by the Supreme Court
The Indiana Supreme Court on Tuesday ousted Marion Superior Court Judge Kimberly Brown, only the third Indiana judge to be permanently removed from the bench for misconduct in the past 20 years.
“We conclude that protecting the integrity of the judicial system and ensuring the fair and timely administration of justice require that (Brown) be removed from office,” the Supreme Court said in an order. “This removal renders (Brown) ineligible for judicial office.”
Brown is the first Indiana judge to be permanently removed since 2004.
The disciplinary decision in Brown’s case cannot be appealed, and the court did not place any time limits on Brown’s ineligibility to serve as a judge. That means she is, effectively, permanently barred from holding judicial office.
The court did not suspend Brown’s law license, and she will be able to work as an attorney. * * *
Brown has been on a paid suspension since Jan. 9 and has filed to run in the Democratic primary in May for the party’s nomination to seek re-election. The party has slated another candidate for her post. Whether Brown’s name would remain on the primary ballot was unclear Tuesday. * * *
All five Supreme Court justices concurred with the decision to bar Brown from judicial office, but Justice Robert Rucker argued in a separate opinion that the court’s goal of preserving the integrity of the judicial system could be achieved by suspending Brown for 60 days without pay, then staying her removal for one year, during which she would be on supervised probation. He noted the charges against Brown did not involve “acts of moral depravity,” and neither the court nor the commission found that she had engaged in “willful misconduct in office.”
During the probationary period, Rucker wrote, “(Brown) would carry the burden of demonstrating that she has the capacity to manage her court efficiently and effectively. A failure to do so would result in a probation violation and immediate removal from office.”
The Supreme Court order noted Brown was not a novice judge and that her misconduct occurred as part of her official duties.
“It violated multiple Rules of Judicial Conduct, and much of it prejudiced the administration of justice. It was not singular, isolated, or limited to a particular subset of cases or persons. It was often repeated or continuing in nature.
“This misconduct not only displayed a lack of dignity, courtesy and patience required of judges, but it also negatively affected parties, court staff and others interested in the efficient operation of the criminal justice system,” the order said. * * *
The Supreme Court order noted that Brown’s “pattern of neglect, hostility, retaliation and recalcitrance toward investigating officials indicates an unwillingness or inability on her part to remedy deficiencies.”
Tuesday, March 04, 2014
Ind. Gov't. - Still more on: So who pledged "campaign cash to protect House members who were considering voting against a constitutional gay marriage ban"?
INDIANAPOLIS — Former Indiana Republican Chairman Jim Kittle says his involvement in the state's gay marriage battle has been misstated.
Kittle said Tuesday that he never offered "unlimited" campaign funds to Republican House Speaker Brian Bosma. * * *
Bosma said in January that he had rejected an offer of "unlimited" funds to make the ban "go away." He said then he was concerned it might violate state and federal law. But last week he said that he didn't think any crime was committed.
Ind. Gov't. - "Indiana measure would ban same-sex marriage tax benefits " says AP story
A wrap-up. This AP story from this morning is confused and at some points completely in error. Sen. Brandt Hershman made a second reading amendment yesterday to HB 1380 that was intended to disallow Indiana same-sex couples legally married in another state from filing as a married couple on their Indiana returns.
In this post I started this morning and updated a number of times, I make two points:
- Indiana same-sex couples legally married in another state are already prevented from filing as a married couple on their Indiana returns, meaning a change was not necessary to achieve this result.
- The change made, eliminating the annual update to the definition of the Internal Revenue Code, simply means that all references in the Indiana Code to the Internal Revenue Code will remain "the IRC as amended and in effect on January 1, 2013." This may have ramifications beyond those intended, in other areas.
Ind. Gov't. - More on: So who pledged "campaign cash to protect House members who were considering voting against a constitutional gay marriage ban"?
Ind. Decisions - Marion County Superior Court Judge Kimberly Brown removed by the Supreme Court
In The Honorable Kimberly J. Brown, Judge of the Marion Superior Court, a 22-page opinion, including a separate 5-page opinion by Justice Rucker concurring in part, the Court writes:
This matter comes before the Court as a judicial disciplinary action initiated by the Indiana Commission on Judicial Qualifications (“Commission”) against Kimberly J. Brown (“Respondent”), Judge of the Marion Superior Court. Article 7, Section 4 of the Indiana Constitution and Indiana Admission and Discipline Rule 25 give the Indiana Supreme Court original jurisdiction over this matter. After considering the evidence, the report of the Special Masters appointed in this matter, and the parties’ arguments, we conclude that the Commission has demonstrated, by clear and convincing evidence, that the Respondent engaged in significant judicial misconduct, and we conclude that the misconduct warrants her removal from office. * * *Here is a preliminary story posted by Tim Evans of the Indianapolis Star.
We conclude that protecting the integrity of the judicial system and ensuring the fair and timely administration of justice require that the Respondent be removed from office. Therefore, the Court hereby removes the Respondent from the office of Judge of the Marion Superior Court, effective immediately. This removal renders the Respondent ineligible for judicial office. See Admis. Disc. R. 25(III)(C). Although a judicial officer removed from office under such an order of discipline, “pending further order the Supreme Court, shall be suspended from the practice of law in the State of Indiana[,]” id., the Court hereby orders that the Respondent shall not be suspended or barred from practicing law in Indiana as a result of this removal from office. The Masters appointed in this case are discharged, and we thank them for their conscientious service in this matter.
Dickson, C.J., and David, Massa, and Rush, JJ., concur.
Rucker, J., concurs in part with separate opinion. [that begins, at p. 18] Three very experienced and highly-respected trial court judges serving as Masters in this case have recommended that the Respondent be removed from office. The majority has accepted the Masters’ recommendation and today orders Respondent’s immediate removal. For reasons the majority expresses I agree that Respondent should be removed from the bench. However, I disagree the removal should be ordered effective immediately.
Ind. Decisions - "Indiana shoreline jurisdiction dispute turns into 2-year legal battle"
Recall this ILB post (and the earlier linked entries) from Jan. 1st, headed "Court rules against Long Beach lakefront property owners" concerning a dispute between Lake Michigan beachfront property owners near Michigan City and the Town of Long Beach, over ownership of the "space between the water's edge and the ordinary high watermark (OHWM)."
It seems the same dispute has been going on further west along the Lake Michigan shoreline, in the Town of Dune Acres, which is on Lake Michigan just to the west of what natives of the area refer to as "Johnson's Beach" or "Porter Beach" and the Indiana Dunes National Lakeshore, which, as this story today in the Chicago Tribune, by Jennifer Delgado, reports:
Along Lake Michigan's southern shore, the Indiana Dunes National Lakeshore's 15,000 acres surrounds a checkerboard of small beach communities.You'll need to read the whole story to totally understand the dispute that resulted in a bench trial in federal court, but this section relative to the OHWM gives an idea:
But the borders that divide the towns and park don't mean much when it comes to the beach. Conflicting regulations exist on water scooters, beach fires and dogs without leashes, among other policies.
The National Lakeshore contended that the water scooter had been used within 300 feet of the shoreline, a violation of its rules. The rangers also said [Rob] Carstens had used the ATV below the ordinary high water mark, an area that falls within the park's boundaries. And signs aren't required for every park rule, they added.
The Indiana Department of Natural Resources said it does not prohibit water scooters on Lake Michigan. If another agency issues a ticket, it would be up to a court to decide what entity has ultimate jurisdiction, a spokesman said.
The town has been around since 1923, long before Congress established the national park in 1966. It wasn't until years later that the park boundaries expanded beyond the land to include 300 feet into Lake Michigan.
The ordinary high water mark, an elevation line drawn by scientists, determines the edge of the lake where the federal agency begins governing. The water line has been below average for at least 10 years, according to the National Lakeshore, meaning Carstens could be standing on the beach in federal jurisdiction. * * *
After a one-day bench trial last July, a judge on Jan. 31 convicted Carstens. Lou Mellen, president of the Dune Acres Town Council, argued that the national park does not maintain the town's beach and the ruling sets a bad precedent.
"They're threatening to change the way we use the beach and treat us as if we're just visitors when in fact we live here. We consider this our beach," said Mellen, who noted that the national park does not own the Dune Acres beach.
About 9 miles east, the Beverly Shores beaches have the same rules as the National Lakeshore with a few exceptions.
"Occasionally" the town has a minor jurisdiction issue with the park service, like when a ranger spots a dog without a leash on the beach, said Geof Benson, the Town Council president. The two have different rules on the issue, he said. "But mostly it's been settled with a phone call or discussion, not a court," he said of differences.
Ind. Gov't. -"State police open probe on Elwood mayor's campaign funds"
Ken de la Bastide and Zach Osowski reported in The Anderson Herald Bulletin March 2nd in a lengthy story that began:
ELWOOD – The Indiana State Police and FBI are investigating campaign finance expenditures by Elwood Mayor Ron Arnold for 2012 and 2013, according to local officials.
In particular, Arnold spent campaign money for out-of-state travel and personal bills, which could be seen as a violation of state election laws. A Herald Bulletin review of Arnold’s campaign finance records found that he spent $7,264 for Verizon wireless service and $3,939 for Comcast cable service.
The investigation is being conducted by the ISP Organized Crime and Corruption Unit. * * *
Madison County Prosecutor Rodney Cummings said Monday the ISP approached him before the investigation began. State police received complaints about alleged irregularities in Arnold’s campaign finance report, Cummings said.
Initially, Cummings turned down a request for a subpoena by ISP for Arnold’s campaign bank records. But after being informed that the campaign paid for a hotel room in California and cable bills, Cummings approved the subpoena of the campaign committee’s bank records.
“There are several possible statute violations,” Cummings said. “You can’t use campaign funds for your own personal use.”
Ind. Law - Stephen J. Johnson, longtime executive director of the Indiana Prosecuting Attorneys Council, dies
It is with heavy hearts that we inform you of the death of former Executive Director, Stephen J. Johnson. Steve died unexpectedly at home on Sunday, March 2, 2014. We will miss him more than words can express.Here is the obituary.
Thursday, March 6, 2014, 4:00 pm - 8:00 pm
G.H. Hermann Madison Avenue Funeral Home
5141 Madison Avenue, Indianapolis
Friday, March 7, 2014, 10:00 am - 11:00 am
Resurrection Lutheran Church
445 E. Stop 11 Road, Indianapolis
Friday, March 7, 2014, 11:00 am
Resurrection Lutheran Church
445 E. Stop 11 Road, Indianapolis
Friday, March 7, 2014
Maple Hill Cemetery
709 Harding Street, Plainfield
Courts - "Outside lawyer to appeal Kentucky gay-marriage ruling after attorney general refuses"
Gov. Steve Beshear announced Tuesday morning that the state will hire outside counsel to appeal a judicial ruling that the state must recognize same-sex marriages legally performed outside the state.
The announcement followed state Attorney General Jack Conway’s emotional announcement that he would not appeal U.S. District Judge John G. Heyburn II’s ruling and would not pursue any more stays.
Courts - More on "Kentucky Attorney General Conway faces unenviable situation"
Updating this ILB post from March 3rd, the AP is reporting that Kentucky's attorney general will not appeal Bourke v. Beshear, the federal district court opinion requiring Kentucky to give recognition to same sex marriages performed in other states.
Here is the preliminary story from Tom Loftus of the Louisville Courier Journal.
Ind. Decisions - Court of Appeals issues 1 today (and 3 NFP)
For publication opinions today (1):
In Commonwealth Land Title Insurance Company v. Stephen W. Robertson, Insurance Commissioner of the State of Indiana, et al, a 33-page opinion, Judge Crone writes:
The Indiana Department of Insurance (“IDOI”) conducted a targeted market examination of Commonwealth Land Title Insurance Company (“Commonwealth”) to determine if it was in compliance with the Indiana Insurance Code. Following the examination, the IDOI issued an order (“the Administrative Order”), concluding that Commonwealth violated Indiana Code Sections 27-4-1-4(a)(7)(C)(i) (“the Rate Statute”), 27-1-3-4 (“the Unsafe Business Practices Statute”), and 27-1-18-2 (“the Gross Premium Tax Statute”), and ordered Commonwealth to take certain actions to cure its violations pursuant to Indiana Code Section 27-1-3.1-11 (“the Cure Statute”). Commonwealth petitioned for judicial review, and the trial court upheld the Administrative Order with one exception.NFP civil opinions today (0):
Commonwealth appeals the trial court’s order, arguing that the IDOI’s determinations that it violated the aforementioned statutes are unsupported by substantial evidence and that the cures the IDOI ordered are not authorized by the Cure Statute. We conclude that Commonwealth fails to carry its burden to show that the IDOI’s determinations are unsupported by substantial evidence and that the cures are not authorized by the Cure Statute. Accordingly, we affirm the trial court’s order. * * *
We conclude that substantial evidence supports the IDOI’s determination that Commonwealth violated the Rate Statute, the Unsafe Business Practices Statute, and the Gross Premium Tax Statute. We further conclude that the cures imposed by the IDOI for Commonwealth’s violations of these statutes are authorized by the Cure Statute. Therefore, we affirm the trial court’s order.
NFP criminal opinions today (3):
Ind. Gov't. - Story reports "Indiana measure would ban same-sex marriage tax benefits" [Updated a 4th Times!]
This morning the Indianapolis Star posted a confusing, unsigned AP story with that headline. It reports:
Indiana would break from an Internal Revenue Service policy recognizing same-sex marriage for tax purposes if a late-session change becomes law.The story does not give the bill number. The ILB has tried to locate a bill with this amendment, but has been unsuccessful so cannot comment either on how the language would impact current Indiana policy, or when the "change" would take effect.
The Senate on Monday approved adding the language to another tax bill. The measure is up for a final vote in the chamber Tuesday [that would be today].
The IRS last year announced all same-sex marriages would be recognized in federal tax returns. The ruling applies regardless of whether the couple lives in an area where their marriage is recognized.
If passed into law, the Indiana bill would split from the IRS and not grant same-sex couples the same tax breaks other couples now receive.
Republican Sen. Brandt Hershman of Buck Creek says blocking the benefits would match Indiana tax policy with the state ban on same-sex marriage.
On Nov. 23, 2013 the Indiana Department of Revenue issued a document headed "Same-sex Marriage Tax Filing Guidance." Jon Murray, then of the Indianapolis Star, reported on it the same day in this story. From the story:
The U.S. Supreme Court in June ruled that the federal government must recognize legally performed same-sex marriages. Under a resulting policy announced Aug. 29 by the Internal Revenue Service, legally married gay couples will be able to file a joint federal tax return for the first time next year — no matter where they currently live.Thus, same sex Indiana couples, legally married in another state, may file a joint federal return, but for purposes of the Indiana tax, must file as unmarried.How Hershman's amendment would change this, if at all, is not clear without being able to review its language.
That creates a challenge in Indiana, which is among 24 states that have gay-marriage bans and also use state income-tax forms that rely on the federal tax return form as the basis for income calculations.
The state's new guidance, issued on the Department of Revenue's website this afternoon, advises couples who file federal returns with a married filing status to also fill out sample federal single-filer forms. To do so, they must divide their joint income.
They then can refer to those sample federal returns when they fill out Indiana's tax return for single-filers. The website offers some advice for dividing up income and specifies which lines on the federal form affect the state return.
[Updated at 10:45 AM and again at noon] Thanks to Sen. Hershman, who has sent the ILB the bill number, HB 1380 and identified the motion as Amendment 5.
However, this confuses the ILB, as amendment 5 strikes from the bill the entire SECTION 8 (of the Feb. 28 printing, at pp. 7-8), containing the annual update to IC 6-3-1-11, to define the term "Internal Revenue Code" as that in effect as of the current year.
Perhaps (likely) the amendment to IC 6-3-1-11 will appear in another bill. It is unclear to the ILB, however, how any change to Indiana tax law could prevent Indiana same-sex couples legally married in another state from filing their federal return jointly as married couples under federal law.
The State of Indiana currently does not recognize the marriage and does not permit joint filing of Indiana tax returns, as indicated earlier in this post. But as we've seen this week with Kentucky, which has been required by a federal court decision to recognize same-sex marriages performed in other states, that could change with litigation.
[More at 1:55 PM] The ILB has located the LSA fiscal note for the version of HB 1380 as it existed before the second reading Senate amendments. Here is the applicable analysis, from p. 3, of SECTION 8's changes to IC 6-3-1-11:
Internal Revenue Code: The bill updates the reference to the Internal Revenue Code (IRC) as amended and in effect on January 1, 2014. The current reference to the IRC pertains to all IRC provisions amended and in effect on January 1, 2013. There were no significant updates to the IRC enacted by Congress during 2013.Senator Hershman's 2nd reading amendment removed SECTION 8 from HB 1380 entirely. What connection any of this has to do with Indiana "breaking from an Internal Revenue Service policy recognizing same-sex marriage for tax purposes" continues to elude me.
However, some federal provisions were allowed to expire on December 31, 2013, that Indiana requires to be added back to federal adjusted gross income. Those add-backs will no longer be necessary and should not have a significant fiscal impact. (It is possible that these federal provisions could be retroactively reinstated during 2014.) The expiring provisions with an Indiana add-back are:
• Discharge of indebtedness on a principal residence.
• Increase in section 179 expensing to $500,000/$2,000,000 and expansion of the definition of section 179 property.
• Special expensing rules for certain film and television productions.
[Updated at 3:05 PM] Senator Hershman has sent the ILB this response:
We couple our tax code selectively to the federal IRC. If we did a blanket coupling, it would potentially require recognition and joint filing under state law.ILB: Repealing SECTION 8 will simply leave IC 6-3-1-11 (starts at bottom of p. 16) as it currently exists.
We aren’t doing anything to the federal ability to file jointly, we’re just not creating a state right to do so through coupling to the federal code.
Hope this helps.
Ind. Gov't. - "State, LaPorte Co. sue former worker for missing funds"
Stan Maddux reports today in the NWI Times in a story that begins:
LAPORTE | Indiana Attorney General Greg Zoeller on Monday personally filed a lawsuit in LaPorte Circuit Court aimed at recovering nearly $200,000 in public funds allegedly embezzled by a now former chief deputy LaPorte County auditor.ILB: Here is a July 16, 2011 ILB post, where a story quoted from the Goshen News began:
He said lawsuits by his office are common in cases involving theft of tax dollars.
However, the legal action taken against former chief deputy auditor Mary Ray asks for triple of the amount she allegedly took because she was in a position of trust and evidence suggests the money went for gambling and, perhaps, other personal use, according to court documents.
"It's meant to show the public that we're going to take these things seriously. We're not going to look the other way," said Zoeller.
LaGrange County Clerk Beverly Elliott is facing four Class D felony counts of official misconduct. She is also being asked to return close to $10,000 in county money and pay more than $8,000 in costs incurred during an audit by the Indiana State Board of Accounts.
In addition, State Attorney General Greg Zoeller announced Tuesday afternoon he has filed a lawsuit against Elliott seeking triple the amount in damages — $55,160. He is also seeking an injunction freezing all of her assets.
Monday, March 03, 2014
Ind. Courts - Hoosier and 7th Circuit Judge John Tinder retiring in 2015
Above the Law has the scoop (congratulations!), alerted by a letter sent by Judge Tinder to a clerkship applicant, telling him or her that he had "recently decided that I will be leaving the court in 2015."
David Lat of ATL spoke with Judge Tinder this afternoon by phone and writes:
Judge Tinder plans to continue hearing cases through February 2015, which is when he’ll turn 65 and become eligible for retirement pursuant to the so-called “Rule of 80.” Under this policy, a federal judge who’s at least 65 years old and has at least 15 years of active service as an Article III judge can leave active status and still receive full pay, whether as a completely retired judge or a judge on senior status (a semi-retirement typically involving a somewhat reduced caseload). Judge Tinder, who has served as an Article III judge for a total of more than 25 years — first on the District Court for the Southern District of Indiana, then on the Seventh Circuit — easily satisfies the rule’s requirements.(h/t AppellateDaily)
So around February 2015, Judge Tinder will stop picking up new appeals and turn to finishing up work on his still-pending opinions. He hopes to retire completely from the Seventh Circuit sometime in the spring of 2015. He does not plan to take senior status; rather, he will step down from the bench completely. What does he plan to do after departing from the court?
“I’ve got some hazy concepts in my mind, but no definite project,” he said. “I’ve been a judge since 1987 and U.S. Attorney prior to that, so it has been a while since I’ve been in the private sector. I don’t aspire to build a clientele or start a practice at this point in my career, but I can think of things I’d enjoy doing in public interest, advocacy, or arbitration. But I don’t have a particular target, just some vague notions that I will explore closer to the time.”
Serving as a federal appellate judge is many a lawyer’s dream job. Why would Judge Tinder want to step down from the bench?
“We have a wonderful court, full of really smart and collegial people, tackling the most interesting issues,” he said. “It will be hard to leave. But I just got to a point where I thought about whether I’d like to target what Bill Bauer [Judge William Bauer] is doing at 88, handling a full caseload, and I thought I’d like to try something different. It has been fascinating to serve on this court and on the district court before that.”
Thank you, Judge Tinder, for your many years of judicial service, and best of luck in your next endeavor, whatever it might be!
ILB: This is NEWS. As most know, Judge Tinder hails from Indianapolis.
Courts - "What Does the SCOTUS Really Think About the Right to Counsel?"
The subtitle to this Feb. 27th Atlantic article by Andrew Cohen is "The chief justice pens a paean to criminal defense attorneys, never mentioning the national crisis the Court has helped perpetuate."
A number of readers have sent notes referring the ILB to this article.
Ind. Gov't - What is a "timely" period for a response under the Public Records Act? More than five months?
On Feb. 28th the Public Access Counselor issued a 3-page opinion re Formal Complaint 14-FC-15; Alleged Violation of the Access to Public Records Act by the Indiana Department of Education.
The complaint to the PAC was dated a month earlier, Jan. 29th, and said that although a request had been submitted to the DOE on August 8, 2013:
The Department acknowledged receipt of your request; however, as of the date of your formal complaint they had not produced any documentation responsive to your request. The Department responded to your complaint on February 12, 2014 stating they were still in the process of satisfying numerous other requests received and had not processed your request.More from the opinion:
Your request is presumably pursuant to a debate sparked in August 2013 regarding the Department’s A-F school accountability grading system administered by the previous Indiana Superintendent of Public Instruction Tony Bennett. Most of the materials you are seeking appear to be related to that particular situation. The alleged controversy was widely covered in local and national press. Consequently, I am aware the Department’s incoming administration has received abundant requests for information very similar to your request.ILB: Here are some ILB observations, in no particular order:
I point this out because the Department’s claim they have received “numerous requests for information and we process the requests in the order we receive them” is likely under these circumstances. And while you are entitled to the records you seek (notwithstanding any confidential or deliberative material) it is to be expected the Department would be the recipient of a large number of public records request related to this controversy. * * *
Reasonableness is a subjective standard which changes on a case-by-case basis. To conclude the Department has not yet caught up with the numerous requests for information would not be beyond reason. Moreover, the APRA is not intended to interfere with the regular discharge of the functions or duties of the public agency or public employees. See Ind. Code § 5-14-3-7(a). It is my understanding the Department has only a limited number of staff members assigned to address public records requests. Considering the amount of attention this matter has generated, your request may still be waiting in queue.
You are likewise correct stating an agency should produce portions of a response as they become available in situations where the request is large. This has been my standing opinion as well as former Public Access Counselors. As your response is being processed, I encourage the Department to release the disclosable information in a piecemeal manner. However, as they have not begun to work on your request, this is not practical at this time.
Five months is certainly a long time to wait for records production. In normal circumstances, even for a request as large as yours, I would find a violation if the agency had not produced any records responsive to the request. Given the unprecedented amount of attention and public records requests received by the Department in light of Augusts’ news cycle, I do not find it unreasonable the Department has taken this amount of time to even commence investigation into the response to your request.
- Five months is indeed a long time to wait. And the Department still has not yet begun to fill the request.
- Although the opinion does not identify the entity making the request, the address on the opinion is 555 New Jersey Avenue NW, Washington, D.C. 20001. That is the address of the American Federation of Teachers. The out-of-state location make this appear to be a harder case, but one assumes the answers would have been the same for an Indiana inquirer.
- As the public access counselor notes in the opinion:
[Y]ou submitted to the Department a request for considerable amount of communication from January 2009 to the date of your request. In the first part of your request, you listed over 15 named separate senders of communication (as well as the catch-all “other immediate staff of the Office of the Superintendent”) and approximately 80-named recipients as well as an indefinite number of unnamed “group” recipients such as the Foundation for Excellence in Education and the Foundations for Florida’s Future. You also included 23 key phrases to narrow the search. Additionally, you requested a copy of all proposals, schedules and attachments received by the Department’s Office of School Improvement and Turnaround.
- Fulfilling this public records request presumably would exceed many times over the two-hour limit after which the agency may charge a fee under the changes proposed by the pending HB 1306.
- It appears that a number of the requests the Department has received relate to the same debate. From the opinion:
I am aware the Department’s incoming administration has received abundant requests for information very similar to your request.
- Would the Department be under any obligation under HB 1306, if it became law, not to charge $20 per hour for producing the same information over and over? And if so, does that mean that the first inquirer would bear the brunt of the costs?
- IC 5-14-3-7(a), cited above to support the PAC statement that the public records law "is not intended to interfere with the regular discharge of the functions or duties of the public agency or public employees," actually reads: "A public agency shall protect public records from loss, alteration, mutilation, or destruction, and regulate any material interference with the regular discharge of the functions or duties of the public agency or public employees."
- Doesn't "the regular discharge of the functions or duties of the public agency" include serving the public - making its public records accessible to the public? When did this duty begin to fall outside the definition?
Ind. Decisions - Fourteen New Cases Added to the Indiana Supreme Court’s Oral Argument Calendar
Commentary by Joel Schumm, professor at Indiana University's Robert H. McKinney School of Law
Updating this post from November 27, in the past month the Indiana Supreme Court has added the following fourteen cases to its oral argument calendar.
|THU, APR 24, 2014 at 9:45 AM||Robert Corbin v. State of Indiana||FP||Granted|
|THU, APR 24, 2014 at 9:00 AM||Curtis Sample v. State of Indiana||NFP||Granted|
|THU, APR 10, 2014 at 10:30 AM||Nick McIlquham v. State of Indiana||FP||Granted|
|THU, APR 3, 2014 at 9:45 AM||Phillip J. Griffin v. State of Indiana||FP||Granted|
|THU, APR 3, 2014 at 9:00 AM||Keion Gaddie v. State of Indiana||FP||Granted|
|THU, MAR 20, 2014 at 10:30 AM||Matter of C.H.; J.E. v. L.H.||NFP*||Granted|
|THU, MAR 20, 2014 at 9:45 AM||Detona Sargent v. State of Indiana (civil)||FP||Granted|
|THU, MAR 20, 2014 at 9:00 AM||Randy L. Knapp v. State of Indiana||Direct appeal||(LWOP)|
|THU, MAR 13, 2014 at 10:30 AM||Paternity of I.B., K.H. v. L.B.||NFP*||Pending|
|THU, MAR 13, 2014 at 9:45 AM||Michael E. Lyons, et al. v. Richmond Community School Corporation, et al.||FP||Granted|
|THU, MAR 13, 2014 at 9:00 AM||Mayor Gregory Ballard v. Maggie Lewis, et al.||Direct appeal||56(A)|
|THU, FEB 13, 2014 at 10:30 AM||Kenyatta Erkins and Ugbe Ojile v. State of Indiana||FP||Granted|
|THU, FEB 13, 2014 at 9:45 AM||Christopher Cross v. State of Indiana||FP||Granted|
|THU, FEB 13, 2014 at 9:00 AM||William Eisele v. State of Indiana||NFP||Pending|
Two of the fourteen cases are direct appeals. Ballard v. Lewis is the Marion County City-County Council redistricting case in which the Court granted emergency transfer under Appellate Rule 56(A). Knapp v. State is a life without parole case, which is a direct appeal to the Supreme Court under Appellate Rule 4(A)(1)(a).
Of the remaining twelve transfer cases, one-third (4/12) involve unpublished opinions from the Court of Appeals. Interestingly, in two of those cases the losing party (Appellant) filed a motion to publish with the Court of Appeals, which was denied.
The earlier practice of scheduling oral argument to decide whether to grant appears to be declining. Less than 17% (2/12) of the transfer cases involve pending petitions to transfer.
Finally, almost 65% (9/14) of the arguments are in criminal cases. The three criminal cases argued on February 13 were scheduled for oral argument on fairly short notice. (The two cases that had previously been scheduled for oral argument on February 13 were removed from the calendar; one was continued, and the Court dismissed the petition in the other upon the request of the Appellant.) The order in Erkins/Ojile was issued January 16, and the orders in Eisele and Cross were issued on February 4. As counsel in one of those cases, I can report that the court administrator calls and secures counsels’ consent before scheduling oral argument with less than a month’s notice.
Ind. Decisions - Court of Appeals issues 2 today (and 9 NFP)
For publication opinions today (2):
In Joseph amd M. Carmen Wysocki v. Barbara A. and William T. Johnson, both individually and as Trustees of the Barbara A. Johnson Living Trust, a 9page opinion, Judge Friedlander writes:
Joseph and M. Carmen Wysocki appeal the denial of their request for attorney fees and additional damages under Indiana’s Crime Victims Relief Act, [IC 34-24-3-] (the CVRA). We affirm. * * *In CBR Event Decorators, Inc., Gregory Rankin, Robert Cochrane and John Bales v. Todd M. Gates , a 13-page opinion, Judge Robb writes:
The foregoing reflects that the elements of common-law fraud and the criminal offense of fraud are different. So, too, is the burden of proof necessary to prove those two allegations. Thus, it cannot be said that authorization of attorney fees in the CVRA for victims of criminal offenses that can be categorized as fraud extends to the common-law tort of fraud. Simply put, in its current form, the CVRA authorizes certain fees only for victims of certain, specific criminal offenses, as well as for liability arising under I.C. § 24-4.6-5 et seq., which does not apply here. The Wysockis were not victims of the criminal offense of fraud because the Johnsons were not charged with that crime in relation to the sale of the house, much less convicted of it in a court of law. In the absence of such a conviction, the CVRA does not apply. Accordingly, the trial court did not err in denying the Wysockis’ request for attorney fees under its provisions.
CBR Event Decorators, Inc. (“CBR”) and its individual shareholders Gregory Rankin, Robert Cochrane, and John Bales (collectively, “Shareholders”) bring this consolidated appeal, challenging the trial court’s award of attorney fees and order requiring $1,000,000 from a letter of credit to be deposited with the trial court clerk. The Appellants raise the following issues for our review: (1) whether, following a decision by this court in a previous appeal in this case, the trial court erred by ordering that the Shareholders be personally liable for attorney fees on a claim against CBR for wrongful stop payment of a check; (2) whether the trial court erred by failing to hold a hearing regarding the amount and reasonableness of attorney fees; (3) whether the attorney fee award of $290,093 was unreasonable; and (4) whether the trial court erred by granting an ex parte order requiring $1,000,000 from a letter of credit to be deposited with the trial court clerk. We conclude Shareholders are not personally liable for attorney fees on the wrongful stop payment claim.1 However, we find the ex parte order requiring deposit of $1,000,000 with the trial court clerk was not reversible error. Therefore, we affirm in part and reverse in part.NFP civil opinions today (3):
NFP criminal opinions today (6):
Courts - "Kentucky Attorney General Conway faces unenviable situation"
Columnist Joseph Gerth wrote yesterday in the Louisville Courier Journal that begins:
Attorney General Jack Conway, who wants to be the next governor, is in an unenviable situation.Here is the updated ILB post on the status of the Kentucky case, which involves the issue of whether Kentucky is required to give recognition to same sex marriages performed in other states.
With U.S. District Judge John G. Heyburn issuing his final ruling last week in the case challenging a Kentucky law that prohibits the state from recognizing gay marriages from elsewhere, Conway has to decide whether to appeal his decision.
He and governor Steve Beshear have said they’ll work quickly to decide whether to take the case to the 6th Circuit Court of Appeals in Cincinnati or if they’ll do as Democrats have done in six other states — walk away believing that the framework established by the U.S. Supreme Court in the Windsor case means that they can’t win. * * *
No matter what [AG] Conway decides, he’ll surely anger a sizable portion of Kentucky’s electorate — one group that could make it tough to win a Democratic primary for governor and the other group that could make it difficult to win the general election.
And while [Gov] Beshear says he has run his last political race, he certainly wants to protect his own image, lest he sully the Beshear brand as his son, Andrew, gears up to run for Attorney General in 2015.
Ind. Gov't. - Status of HB 1306, that allows $20 per hour search fee for public records requests
As there were amendments in the Senate, it was returned to the House for concurrence or dissent. Here is the current version of HB 1306.
Authored by: Rep. William Friend
Co-Authors: Rep. Kathy Richardson
Sponsors: Sen. Travis Holdman, Sen. Randall Head, Sen. James Arnold
Ind. Gov't. - So who pledged "campaign cash to protect House members who were considering voting against a constitutional gay marriage ban"?
It turns out it was a former Republican party chairman. Tom LoBianco of the AP has the story today. Some quotes:
INDIANAPOLIS (AP) — A former Republican Party chairman's pledge to provide campaign cash to protect House members who were considering voting against a constitutional gay marriage ban offers a rare look at the private power game that plays out on tough issues at the Statehouse.
Jim Kittle offered "unlimited" campaign help to House Speaker Brian Bosma as part of a push to defeat the proposed amendment, according to multiple people with direct knowledge of the discussion. They spoke on condition of anonymity because they weren't authorized to disclose the private discussions.
Kittle withdrew his offer after Bosma questioned its legality, and it turns out the money wasn't needed after all. Only four House Republicans targeted by ban supporters face primary challenges, and changes to the proposed amendment's language will keep the issue off the ballot until at least 2016. But the back-room intrigue illustrates how election-year politics and campaign dollars shape some of the state's most important decisions. * * *
Bosma first announced an offer of campaign dollars in a January news conference but did not identify the potential contributor.
"I received a pledge of unlimited campaign funding if I were to make this issue go away," Bosma announced.
Bosma said he rejected the offer and expressed concern that it might have violated state or federal law. He has worn his decision as a badge of pride throughout the session, telling reporters he does not bow to threats or intimidation.
Bosma told The Associated Press last week that he didn't think the offer constituted a crime. But the speaker, who has never said Kittle made the offer, acknowledged voicing some concerns.
"I did bring to that individual's attention what it sounded like he was saying and I think he was pretty concerned about it after he said it," Bosma said.
Kittle did not return calls seeking comment.
Ind. Decisions - Transfer list for week ending February 28, 2014
There were no transfer dispositions last week, and hence, there is no transfer list.
Catch-up: What did you miss over the weekend from the ILB?
From Sunday, March 2, 2014:
- Law - More on "Unsealed email ties Wisconsin Gov. Scott Walker to secret email system"
- Ind. Gov't. - More on "Purdue University Rejects Donor's Reference to 'God's physical laws' on Plaque Honoring Parents' Legacy"
- Ind. Decisions - " Divided opinions on contraceptive mandate: Notre Dame only religious entity denied contraceptive injunction"
- Ind. Courts - Update on the Clark County Drug Court decertification
- Courts - "Renting Delaware Judges for Secret Rulings"
- Ind. Decisions - "Acapulco’s Owners Sentenced; One Must Pay $305K In Restitution"
From Saturday, March 1, 2014:
From Friday afternoon, February 28, 2014:
- Courts - "Ky federal judge will decide by 4 p.m. today whether to grant a stay of his ruling requiring Kentucky to recognize same-sex marriages performed in other states" [Updated]
- Environment - "Coal Ash Spill Shows How a State Watchdog Was Defanged"
Ind. Decisions - Upcoming oral arguments this week and next
This week's oral arguments before the Supreme Court (week of 3/3/14):
Thursday, March 6
- 9:00 AM - Seth Miller v. State of Indiana (63A01-1210-CR-475) Following a jury trial in Pike Circuit Court, Miller was convicted of Corrupt Business Influence, IC 35-45-6-2, and other offenses. The Court of Appeals reversed this conviction on grounds there was insufficient evidence to establish the element of an “enterprise” within the meaning of the statute. Miller v. State, 992 N.E.2d 791 (Ind. Ct. App. 2013), trans. pending. The State has petitioned the Supreme Court to accept jurisdiction over the appeal.
ILB: This is a July 31, 2013 COA opinion (see ILB here, 4th case).
- 9:45 AM - Shannon Robinson, et al. v. Erie Insurance Exchange (49S02-1311-PL-733) The Robinsons filed a complaint seeking uninsured coverage after their car was damaged in an accident caused by a Jeep that fled the scene. Erie Insurance Exchange defended on grounds its policy's definition of "uninsured motor vehicle" provides for coverage only where a hit and run vehicle causes bodily injury. The Marion Superior Court entered summary judgment for Erie Insurance. The Court of Appeals reversed. Robinson v. Erie Ins. Exch. , 991 N.E.2d 961 (Ind. Ct. App. 2013), vacated. The Supreme Court has granted transfer and has assumed jurisdiction over this appeal.
ILB: This is a June 28, 2013 COA opinion (see ILB here, 2nd case).
Thursday, March 13
- 9:00 AM - Mayor Gregory Ballard v. Maggie Lewis, et al. (49S00-1311-PL-716) The Marion Superior Court granted partial summary judgment to Lewis and others, finding that the City-County Council’s redistricting ordinance signed by the Mayor on January 1, 2012, does not comply with the statutory time requirement for redistricting in the second year following the federal census. The court later issued a final judgment dividing the County into 25 Council districts. The Mayor appealed, and the Supreme Court granted a motion to transfer jurisdiction over this appeal to this Court.
ILB: This is the Marion County redistricting case. See this Jan. 27th ILB post for links to most of the documents, and the maps.
- 9:45 AM - Michael E. Lyons, et al. v. Richmond Community School Corp., et al. (89S04-1312-PL-788) After their daughter choked during lunch in the school cafeteria and died, the Lyons's filed a complaint against the Richmond Community School Corporation and alleged tort and civil rights claims. The Wayne Superior Court granted the School summary judgment. The Court of Appeals affirmed in part and reversed in part. Lyons v .Richmond Cmty. Sch. Corp., 990 N.E.2d 470 (Ind. Ct. App. 2013), reh'g granted. The Supreme Court has denied the School's petition to transfer, granted the Lyons's petition to transfer, and assumed jurisdiction over the appeal.
- 10:30 AM - Paternity of I.B., K.H. v. L.B. (34A02-1305-JP-401) When a child, by next friend, petitioned to establish paternity, the Howard Circuit Court held a hearing, found that the evidence overcame the statutory presumption that the mother’s former husband was the child’s father, and ruled that another man, K.H., is the child’s father. The Court of Appeals affirmed and rejected K.H.’s argument that the evidence was insufficient because there was no DNA evidence. In re Paternity of I.B.; K.H. v. I.B., b/n/f L.B., No. 34A02-1305-JP-401 (Ind. Ct. App. Oct. 7, 2013) (NFP mem. dec.). K.H. has petitioned the Supreme Court to accept jurisdiction over the appeal.
ILB: Here is the Oct. 7, 2013 NFP COA opinion.
Webcasts of Supreme Court oral arguments are available here.
This week's oral arguments before the Court of Appeals (week of 3/3/14):
Tuesday, March 4
- 1:00 PM - Dustin Lee Jarrell v. Billie Jo Jarrell (42A01-1308-DR-381) This appeal involves the review of an Order modifying a child custody order in favor of Mother, the Appellee, following her relocation from Vincennes, Indiana to Carterville, Illinois. Father, the Appellant, presents this court with issues concerning the obligations of a non-relocating parent to timely object to a relocation where the relocating parent has failed to provide notice pursuant to Indiana Code section 31-17-2.2-1(a) and Indiana Code section 31-17-2.2-3, as well as issues regarding the factors a trial court must consider in determining whether to modify a custody order. Specifically, Father asserts that the trial court erred by: considering only the best interests of the child rather than the factors specifically enumerated for relocation cases under Indiana Code section 31-17-2.2-1(b); failing to find there had been a substantial change to at least one of the factors used in ascertaining the child’s best interests during the initial custody determination pursuant to Indiana Code section 31-17-2-21; and concluding that it was in the child’s best interests to award physical custody to Mother. The Scheduled Panel Members are: Chief Judge Vaidik, Judges Riley and May. [Where: Court of Appeals Courtroom (WEBCAST)]
- 10:20 AM - J.K. v. State of Indiana (66A03-1306-JS-220) J.K was adjudicated delinquent for acts of illegal possession and illegal consumption of an alcoholic beverage and aiding illegal consumption of an alcoholic beverage. J.K. argues the juvenile court admitted evidence obtained in violation of his rights under the Fourth Amendment to the United States Constitution. Police received a complaint regarding juveniles making noise in the neighborhood and arrived at J.K.’s residence at approximately 1 a.m. Two officers went around each side of the residence while a third officer remained at the front, knocking on the door. Believing that underage drinking was taking place inside, the officers remained at the residence for over an hour until two juveniles, including J.K., eventually opened the front door. An officer spoke with J.K.’s mother via telephone, and the officers entered the residence without a warrant.. J.K. argues any consent to enter was tainted by an unconstitutionally lengthy “knock-and-talk.” The State contends exigent circumstances allowed for the warrantless entry, regardless of consent. The Scheduled Panel Members are: Judges Robb, Crone, and Sr. Judge Shepard. [Where: Walden Inn and Conference Center, DePauw University, Greencastle, Indiana]
Wednesday, March 12
- 10:00 AM - West Bend Mutual Insurance Co., and K.B. Electric, LL v. MacDougall Pierce Construction, et al (06A01-1304-CT-162) After he was injured at the site of a construction project, James Wethington, an employee of K.B. Electric, LLC, filed a lawsuit against various defendants seeking compensation for his injuries. West Bend Mutual Insurance Company and K.B. Electric, LLC appeal from the trial court’s order, which disposed of motions for summary judgment, and in which the trial court entered a declaratory judgment in favor of Amerisure Insurance Company and against West Bend Mutual Insurance Company regarding indemnification clauses and coverage under the available policies of insurance. The Scheduled Panel Members are: Judges Friedlander, Kirsch, and Bailey [Where: Court of Appeals Court Courtroom (WEBCAST)]
The past COA webcasts which have been webcast are accessible here.
NOTE: For a printable version of this list of upcoming oral arguments, click on the date in the next line. Then select "Print" from your browser.
Sunday, March 02, 2014
Law - More on "Unsealed email ties Wisconsin Gov. Scott Walker to secret email system"
Ind. Gov't. - More on "Purdue University Rejects Donor's Reference to 'God's physical laws' on Plaque Honoring Parents' Legacy"
Since the ILB first broke this story last Thursday morning, a number of stories have followed. This one today by columnist Dave Bangert, in the Lafayette Journal Courier, is by far the best, and the longest. A sample:
[Donor Michael] McCracken’s attorney, Robert Kelner, said Purdue is stifling his client’s free speech rights by reneging on an offer to write an inscription. Steve Schultz, Purdue’s legal counsel, made things a bit more dicey by essentially saying the university agrees in principle with McCracken — if only there was a way to guarantee against potential lawsuits and “the hopelessly muddled state of jurisprudence in this particular area” that could wipe out the value of a donation that comes in five yearly installments of $2,500.
On one hand, you have a question on the limits of speech. Does an invitation to write something to hang as a fixture on a state-run university offer absolute First Amendment rights? (Take religion out of the mix for a second. What if he’d written: “Mitch Daniels is a doofus,” “Purdue is a lousy place to go to school,” or, heaven forbid, “Neil Armstrong was no hero of mine?”)
On the other hand, there’s an implication in Schultz’s justification that there’s a price for everything at Purdue. The McCracken donation just didn’t meet it. So what price would have eliminated what McCracken’s lawyer called the fear of defending against a “heckler’s veto?” Upward of $100,000? $1 million? $12 million? No telling.
Either way, Purdue has no decent landing zone at this point.
Bangert's long column concludes:
Will McLauchlan, a political science professor at Purdue who specializes in constitutional law, said the university is in a bind of its own making, by accepting a donation and offering carte blanche on an inscription. But now that it’s out there …
“Whether one believes in a complete wall of separation, as some of us do, or if we would tolerate some overlap, such as a ‘grace’ before dinner at a banquet in the (Purdue Memorial) Union, putting this kind of reference in a visible and semi-permanent way on the wall is not appropriate,” McLauchlan said. “Furthermore, since we value or prize diversity, which includes religious diversity, would we allow a similar reference to Mohammed on a classroom or hallway wall if the benefactor was Muslim? The university allowing ‘God’ would permit reference to any religious deity chosen by the benefactor. That is not a position the university should be in.
“The university should give the money back and thank the benefactor for considering Purdue.”
If it were only that easy — or as easy as wishing Purdue had etched McCracken’s inscription, put the plaque on the wall and quietly backed away, figuring no one would notice or care about a fairly innocuous reference to God.
Too late now. Purdue drew another line in the gray area of church and state. And everyone on both sides of that line is watching to see if it holds up.
Ind. Decisions - " Divided opinions on contraceptive mandate: Notre Dame only religious entity denied contraceptive injunction"
Madeline Buckley of the South Bend Tribune has a good, very long story in the Sunday edition with this introduction:
The form that allows religious nonprofits to opt out of paying for contraceptives is two pages long, with three fill-in boxes for information and a line for a signature and date.
Its basic simplicity on the surface is at odds with the divisive and complicated litigation it has spawned.
For the University of Notre Dame and 18 other religious nonprofit organizations that have challenged the contraceptives mandate of the Affordable Care Act, the form is just a piece of paper that still forces them to play a role in facilitating coverage that is against their religious beliefs.
But for the government, the form is a compromise that allows these nonprofits to declare their opposition and shift the payment of the contraceptives elsewhere.
It's an issue that has already resulted in divided opinions among judges who have heard bids for temporary exemptions from the mandate, making it a case that could head to the U.S. Supreme Court, some experts say.
That is if the nation's high court ruling on the similar Hobby Lobby lawsuit (expected in June) doesn't have strong implications for cases like Notre Dame's.
A key difference in the cases, though, -- Hobby Lobby is a for-profit business with no religious affiliation -- might gear up the nonprofits for a separate fight.
Ind. Courts - Update on the Clark County Drug Court decertification
Updating a long list of earlier ILB entries on the Clarke County Drug Court decertification, Gary Popp of the Jeffersonville News & Tribune, who has covered this story from the beginning, has two new reports, both dated March 1.
" Officials work to right Clark County Drug Court: Judge Jacobi relinquishes program to fellow judge" is a lengthy story, here are a few quotes:
JEFFERSONVILLE — Officials are trying to determine how to best supervise the nearly 80 participants in the Clark County Drug Treatment Court after the court lost its certification last month.The story reports that the services cannot simply be continued in the new court, because the IJC requires that any supervision must be done by a certified drug court. Much later in the story:
Judge Jerry Jacobi’s Clark County Circuit Court No. 2 ran the drug court program, until it was recently decertified by the Indiana Judicial Center (IJC) in Indianapolis. An IJC official said this week that in the 11 years of providing certification to more than 50 counties that offer problem-sovling courts, such as the drug court program, Jacobi’s drug court is the first and only program to have its certification revoked by the state agency.
Clark County Chief Deputy Prosecutor Jeremy Mull said Friday that Jacobi has followed legal procedure and transferred what remains of the program to Clark County Circuit Court No. 4 Judge Vicki Carmichael.
The program lost its certification after IJC Executive Director Jane Seigel notified Jacobi in a letter: “We have been made aware of the recent allegations of unlawful conduct by drug court staff and drug court practices harmful to participants. Regretfully, the seriousness of these allegations necessitates an immediate suspension of Clark County Drug Court operations.”Popp's second story yesterday is a report that "[a]nother possible lawsuit for Clark County officials has surfaced following alleged misconduct of Clark County Drug Treatment Court officials."
Before the certification was revoked, several drug court participants made allegations of false arrest by drug court officials and being held in the Clark County jail without due process, including not being taking before a judge during months-long incarceration. One participant involved in a class action law suit — in which Jacobi and other drug court officials are named as defendants — was incarcerated for nearly five months following a 48-hour sanction without appearing in court.
Jacobi placed the program’s director Susan Knoebel and his court bailiff and former drug court field officer, Jeremy Snelling, on unpaid leave Jan. 7. Knoebel was later terminated and Snelling remains on suspension.
While the future of a drug court program in Clark County remains unknown, [Jeffersonville attorney Drew] Adams said those suffering addiction, as well as prosecutors and court staff, all benefit from a court-operated controlled-substance program.
“Essentially, the program is a good program, if it is ran properly and executed properly,” he said. “There is a need for it in Clark County and Southern Indiana.”
County officials must take direction for the IJC, an arm of the Indiana Supreme Court, while navigating how to best handle the drug court.
“We are all trying to abide by the [the IJC’s] directive and advice and guidance on how to go forward, but the fact of matter is, this is an unprecedented situation in Indiana,” [Prosecutor] Mull said.
Courts - "Renting Delaware Judges for Secret Rulings"
The ILB had a post Jan. 23rd, quoting stories about the State of Delaware's plans to appeal a 3rd Circuit decision holding that, as Reuters reported, "the state violated the U.S. Constitution with its novel system of allowing judges to arbitrate private business disputes, which critics called secret trials."
Judith Resnik, a professor of law at Yale, had this op-ed in the Feb. 28th NY Times (there are 110 comments). A few quotes from the article:
NEW HAVEN — SHOULD wealthy litigants be able to rent state judges and courthouses to decide cases in private and keep the results secret?
The answer should be an easy no, but if the judges of Delaware’s Chancery Court persuade the United States Supreme Court to take their case and reverse lower federal court rulings outlawing that practice, corporations will, in Delaware, be able to do just that. * * *
Delaware passed a law in 2009 offering new privileges to well-heeled businesses. If litigants had at least $1 million at stake and were willing to pay $12,000 in filing fees and $6,000 a day thereafter, they could use Delaware’s chancery judges and courtrooms for what was called an “arbitration” that produced enforceable legal judgments.
Instead of open proceedings, filings would not be docketed, the courtroom would be closed to the public and the outcome would be secret. The Delaware Supreme Court could review judgments, but that court has not indicated whether appeals would also be confidential.
A group called the Coalition for Open Government, including news and civic organizations, objected that Delaware’s legislation was unconstitutional. In 2012, a federal judge agreed that the law violated the public’s right of access to civil proceedings under the First Amendment. A divided appellate court concurred. Delaware judges are now asking the Supreme Court to reinstate Delaware’s system.
Ind. Decisions - "Acapulco’s Owners Sentenced; One Must Pay $305K In Restitution"
(Lawrenceburg, Ind.) – Sentencing has come for two brothers who pleaded guilty to illegal activity at their southeast Indiana chain of restaurants.
Adolfo Lopez and Benito Lopez owned and managed Acapulco’s Mexican Restaurants in Dearborn, Ripley, and Ohio counties. Those restaurants were raided by Indiana State Excise Police in 2012 after an investigation determined the restaurants had been under-reporting their sales taxes.
Last month, Adolfo Lopez, 44, agreed to pleaded guilty to Corrupt Business Influence (Class C felony), Forgery (Class C felony), Perjury (Class D felony), Theft (Class C felony), and Money Laundering (Class C felony). Benito Lopez, 50, pleaded guilty to Perjury (Class D felony). * * *
Lopez’s cash and vehicles seized during the 2012 raid will be kept by the state, because they were the proceeds of criminal activity, according to the plea agreement. Lopez will keep $61,607 – presumably to pay the restitution lump sum – as well as a pickup truck and his home in Greendale.
Benito Lopez, of Batesville, was given one year on probation. While no restitution payment was ordered, his agreement stipulated that all cash or currency and vehicles seized, with the exception of real property, will be kept by the state.
During the raids of the restaurants in 2012, 109 arrests were made including the restaurant owners and their employees. Dearborn County prosecutors dismissed the charges against 107 of the suspects, but continued to prosecute the Lopez brothers.
Friday, February 28, 2014
Courts - "Ky federal judge will decide by 4 p.m. today whether to grant a stay of his ruling requiring Kentucky to recognize same-sex marriages performed in other states" [Updated]
The Louisville Courier Journal has the preliminary story.
See earlier ILB post here, from yesterday.
[Updated March 1st] The linked LCJ story has now been updated and now begins:
A federal judge Friday gave Kentucky officials 20 days to figure out how to implement his ruling that requires the state to recognize same-sex marriages legally performed elsewhere.Via the Kentucky Divorce Law Journal, here is a link to Bourke v. Beshear, the Feb. 12th WD Ky opinion recognizing same sex marriages performed in other states.
U.S. District Judge John G. Heyburn II said that while the delay extends “an unconstitutional policy,” it allows the state “proper time to administratively prepare for compliance.”
Environment - "Coal Ash Spill Shows How a State Watchdog Was Defanged"
RALEIGH, N.C. — Last June, state employees in charge of stopping water pollution were given updated marching orders on behalf of North Carolina’s new Republican governor and conservative lawmakers.
“The General Assembly doesn’t like you,” an official in the Department of Environment and Natural Resources told supervisors, who had been called from across the state to a drab meeting room here. “They cut your budget, but you didn’t get the message. And they cut your budget again, and you still didn’t get the message.”
From now on, regulators were told, they must focus on customer service, meaning issuing environmental permits for businesses as quickly as possible. Big changes are coming, the official said, according to three people in the meeting, two of whom took notes. “If you don’t like change, you’ll be gone.”
But when the nation’s largest utility, Duke Energy, spilled 39,000 tons of coal ash into the Dan River in early February, those big changes were suddenly playing out in a different light. Federal prosecutors have begun a criminal investigation into the spill and the relations between Duke and regulators at the environmental agency.
The spill, which coated the river bottom 70 miles downstream and threatened drinking water and aquatic life, drew wide attention to a deal that the environmental department’s new leadership reached with Duke last year over pollution from coal ash ponds. It included a minimal fine but no order that Duke remove ash — the waste from burning coal to generate electricity — from its leaky, unlined ponds near drinking water. Environmental groups said the arrangement protected a powerful utility rather than the environment or the public.
Current and former state regulators said the watchdog agency, once among the most aggressive in the Southeast, has been transformed under Gov. Pat McCrory into a weak sentry that plays down science, has abandoned its regulatory role and suffers from politicized decision-making.
The episode is a huge embarrassment for Mr. McCrory, who worked at Duke Energy for 28 years and is a former mayor of Charlotte, where the company is based. And it has become yet another point of contention in North Carolina, where Republicans who took control of the General Assembly in 2011 and the governor’s mansion last year have passed sweeping laws in line with conservative principles. They have affected voting rights and unemployment benefits, as well as what Republicans called “job-killing” environmental regulations, which have received less notice.
Ind. Decisions - Court of Appeals issues 2 today (and 18 NFP)
For publication opinions today (2):
In Mary L. Anderson v. Wayne Post 64, American Legion Corp., a 16-page opinion, Judge Najam writes:
Mary L. Anderson appeals the trial court’s order setting aside its default judgment against Wayne Post 64, American Legion Corporation (“American Legion”). Anderson raises two issues for our review, but we address only the following dispositive issue: whether the trial court erred when it set aside its default judgment against the American Legion as void because the method employed by Anderson to serve process on the American Legion was not the method best calculated to inform the American Legion of Anderson’s lawsuit. We affirm. * * *In Kenneth Seales v. State of Indiana , a 10-page opinion, Judge May writes:
Considering all the facts and circumstances, we agree with the trial court that Anderson did not adequately serve process on the American Legion. We hold that Anderson’s attempt to serve process on the American Legion was inadequate as a matter of law and, thus, that the trial court did not have personal jurisdiction over the American Legion and its default judgment was void. Accordingly, we affirm the trial court’s order setting aside its default judgment.
Kenneth Seales appeals the denial of his motion to remove him from the sex offender registry and his motion to correct error. As the additional registration requirements imposed on him after a 2006 change in the law do not amount to an impermissible ex post facto law, we affirm. * * *NFP civil opinions today (5):
[In Gonzalez] [o]ur Supreme Court held the ex post facto clause of the Indiana Constitution prohibited retroactive application of the lifetime registration requirement. The Gonzalez facts are similar in most respects to those in the case before us. However, because of one significant distinction, we cannot reach the same result. * * *
It is with the seventh factor, whether the statute appears excessive in relation to the alternative purpose assigned, that our facts diverge significantly from those in Gonzalez, where the Court noted “previous cases have reached differing results based on the outcome of this final factor.” Id. There, the seventh factor was found to be punitive for a defendant convicted and released before passage of the Act in 1994. Id. (citing Wallace, 905 N.E.2d at 384). In Wallace, it was significant that “the Act provide[d] no mechanism by which a registered sex offender can petition the court for relief from the obligation of continued registration and disclosure. Offenders cannot shorten their registration or notification period, even on the clearest proof of rehabilitation.” Wallace, 905 N.E.2d at 384. * * *
The effects of the Act were seen differently in Jensen, where such a mechanism was in place. * * *
As Seales, like Jensen, has available to him avenues of relief related to his future dangerousness “in relation to the alternative purpose assigned, protection of the public,” id. at 321, we find the seventh factor weighs in favor of treating the lifetime registration requirement as non-punitive, and we therefore cannot say it was error for the trial court to deny Seales’ petition to be removed from the sex offender registry. Affirmed.
NFP criminal opinions today (13):
Courts - Flurry of federal court same-sex marriage opinions continues
From a story today by Richard Wolf in USA Today (included in today's Star), a few quotes [ILB emphasis]:
WASHINGTON -- Some of the nation's most conservative states are propelling the same-sex marriage juggernaut back toward the Supreme Court.ILB: No federal lawsuit has been filed in Indiana, yet. Could that be changing?
Judges in Texas and Kentucky this week added their endorsements to those voiced in the last three months by colleagues in New Mexico, Utah, Oklahoma, Ohio and Virginia.
No state or federal judge has opposed gay marriage since the Supreme Court in June allowed gay men and lesbians to marry in California and struck down the Defense of Marriage Act's ban on federal benefits to legally married same-sex couples.
In addition, attorneys general in Pennsylvania, Virginia, Nevada and Oregon have quit defending their states' bans — a stance that U.S. Attorney General Eric Holder took last year and this week endorsed for his state colleagues.
And the trend shows no signs of abating. State and federal district court cases could be decided soon in Arkansas, Idaho, Michigan, North Carolina, Oregon, Pennsylvania, Tennessee and West Virginia. Appeals are pending in Virginia, Nevada, Ohio, Oklahoma and Utah. In all, nearly 50 cases are pending in 26 states.