Wednesday, May 27, 2015
Ind. Decisions - Three new disciplinary rulings, filed May 19
In the Matter of: Darren T. Cole (St.George, Utah) - Order imposing reciprocal discipline:
Respondent was admitted to practice law in Indiana and in Tennessee. On November 5, 2014, the Chancery Court for Williamson County, Tennessee, issued an order suspending Respondent in Tennessee for three years, beginning November 7, 2014. On February 3, 2015, the Supreme Court of Tennessee issued an order approving and adopting the Chancery Court’s order.In the Matter of: Bruce N. Munson (Muncie) - Order approving statement of circumstances and conditional agreement for discipline:
The Court finds that there has been no showing, pursuant to Admission and Discipline Rule 23(28)(c), of any reason why reciprocal discipline should not issue in this state.
Being duly advised, the Court orders Respondent suspended indefinitely from the practice of law in this state as of the date of this order.
The Commission received an overdraft notice for Respondent’s attorney trust account. An investigation revealed that Respondent made several cash withdrawals from his trust account, that Respondent did not keep accurate and contemporaneous individual client ledgers, and that Respondent’s internal trust account records did not reconcile with the bank statements. There is no allegation that client funds were missing from Respondent’s trust account.In the Matter of Diane R. Hurtt (Lafayette) - Order finding respondent in contempt of court and imposing suspension and fine. Respondent did not timely respondent to a Commission motion:
In aggravation, the parties cite Respondent’s substantial experience in the practice of law and the fact that Respondent’s failure to keep accurate and contemporaneous records was not an isolated event but rather his established means for maintaining his trust account. * * *
For Respondent's professional misconduct, the Court suspends Respondent from the practice of law for a period of six months, beginning on the date of this order, all stayed subject to completion of at least two years of probation.
... asserting Respondent accepted a new client and legal matter during the time she was prohibited from doing so. * * * We therefore find, as asserted by the Commission, that Respondent accepted a new client and legal matter during a time she was prohibited from doing so, in violation of this Court’s order of October 24, 2014, and Indiana Admission and Discipline Rule 23(26)(b).
Being duly advised, the Court GRANTS the Commission’s motion. Respondent shall be suspended from the practice of law for a period of not less than ninety (90) days, without automatic reinstatement, beginning June 25, 2015.
Ind. Decisions - Court of Appeals issues 5 opinion(s) today (and 7 NFP memorandum decisions)
For publication opinions today (5):
In Kathy L. Siner, Deceased, and John T. Siner, prior Enduring Power of Attorney and Medical Representative of the Deceased v. Kindred Hospital Limited Partnership, et al., a 19-page, 2-1 opinion, Judge Bradford writes:
In 2013, Appellants-Plaintiffs Kathy and John Siner (collectively “the Siners”) brought a medical malpractice suit against Appellee-Defendant Kindred Hospital and its employees Appellees-Defendants Dennis Nicely and David Uhrin (collectively “Kindred”) as well as Appellee-Defendant Dr. Mohammed Majid. The Siners alleged that Kindred and Dr. Majid (collectively the “Defendants”) were negligent in their medical treatment of the Siners’ mother, Geraldine Siner, resulting in her injury. The Siners filed their complaint after a medical review panel determined, in 2012, that the Defendants were negligent and that their negligence may have caused injury to Geraldine. The trial court granted separate motions for summary judgment in favor of Dr. Majid and Kindred, finding that the Siners had failed to designate evidence which created an issue of material fact with regards to whether Defendants’ allegedly negligent conduct proximately caused injury to Geraldine. We affirm the trial court’s grant of summary judgment with regards to Dr. Majid and reverse with regards to Kindred. * * *In Tommy Lampley v. State of Indiana , a 7-page opinion, Judge Pyle concludes:
[T]he medical panel’s decision was inconclusive regarding causation, so the burden was on the Siners to offer evidence sufficient to create a material issue of fact on causation. As such, the Defendants were under no duty to offer such evidence and the existence of Dr. Krueger’s affidavit, valid or not, is irrelevant to our decision. See Clarian Health Partners, Inc. v. Wagler, 925 N.E.2d 388, 393 (Ind. Ct. App. 2010) (A medical review panel’s opinion stating that it cannot determine from the evidence whether a defendant’s conduct caused the injury to patient affirmatively negates the causation element and shifts to the patient the burden of demonstrating the existence of a genuine issue of material fact as to causation). * * *
[T]he medical panel opinion is not sufficient to support a verdict under the Noblesville Casting standard. “A court must grant summary judgment…against a party who fails to make a showing sufficient to establish the existence of an element essential to that party’s case, and on which that party will bear the burden of proof at trial.” Briggs, 631 N.E.2d at 963. Therefore, the medical panel opinion did not create an issue of material fact regarding causation sufficient to preclude Dr. Majid’s motion for summary judgment. * * *
Vaidik, C.J., concurs.
Kirsch, J., concurs in part and dissents in part with opinion. [That begins, at p. 17] I fully concur in the decision to reverse the trial court’s grant of summary judgment with regard to the Kindred defendants, but I respectfully dissent form the decision to affirm the grant of summary judgment for Dr. Majid. * * *
To me, the fact that Dr. Krueger issued a different opinion several months after the process is immaterial. The expert medical opinion arising from the Medical Review process remains that Dr. Majid “failed to comply with the appropriate standard of care, and that [his] conduct may have been a factor of some resultant damages, but not the death of the patient.”
The second basis from my dissent rises from the fact that the Medical Review process was created by our General Assembly. That process is mandated in nearly all legal proceedings alleging medical malpractice. The process includes a number of mandated procedural and evidentiary safeguards to protect the rights of all parties to the proceeding. That process should not be impeached or undermined months after it is concluded by an affidavit from a member of the panel issued without those procedural safeguards.
[ILB: The opinion includes a significant footnote  at pp. 9-10 that begins: "We note that the Defendants have cited to the cases Colaw v. Nicholson, 450 N.E.2d 1023, 1030 (Ind. Ct. App. 1983) and Topp v. Leffers, 838 N.E.2d 1027, 1033-1034 (Ind. Ct. App. 2005). These cases reiterate the standard provided in Noblesville Casting. However, the court in Colaw misquotes Noblesville Casting, and that misquotation is subsequently repeated in Topp and cited in Kindred’s appellate brief.]
Lampley argues that “the record is barren of any evidence that [he] engaged in unlawful conduct . . . .” (Lampley’s Br. 6). We disagree. As we previously observed, Lampley admitted at the evidentiary hearing that he smoked marijuana in celebration of leaving the Department of Correction, resulting in his positive urine screen at work release. Though Lampley was not arrested, the State does not have to show that he was convicted of a new crime. * * *In Lamont Wilford v. State of Indiana , a 19-page opinion, Judge Bailey writes:
Lampley’s confession to smoking marijuana is sufficient evidence to support revocation of his probation, and we find no abuse of discretion with the trial court’s order. See, e.g., Smith v. State, 504 N.E.2d 333, 334 (Ind. Ct. App. 1987) (probation revocation affirmed where defendant confessed to new crime).
Wilford presents one issue for review: whether the trial court abused its discretion in admitting into evidence the handgun and photographs of the gun discovered during a vehicle inventory search. * * *In Nickole Nichols v. State of Indiana , a 9-page opinion, Judge Pyle writes:
“In determining the reasonableness of an inventory search, courts must examine all the facts and circumstances of a case.” Id. Here, the police initiated a traffic stop of an unsafe car, which was in the sole possession of a driver with suspended privileges who did not own the vehicle. As a result of the driver’s arrest for the driving-related offense, the car would be left unattended for an unknown period of time. The officer testified that, based on the totality of the circumstances, police procedure provided for impoundment in that situation. Under these circumstances, we hold that Officer Raisovich’s decision to impound the vehicle was reasonable. * * *
Based on our review of the facts and circumstances of this case, it was reasonable under the Fourth Amendment for the police to impound the car Wilford was driving and inventory the contents before towing. Accordingly, the trial court did not abuse its discretion in admitting the gun and photographs of the gun into evidence. * * *
For the same reasons the search in this case was reasonable under the Fourth Amendment, the officer’s decision to impound and conduct an inventory search of the car Wilford was driving was reasonable under Article 1, Section 11 of the Indiana Constitution.
Appellant/Defendant, Nickole Nichols (“Nichols”), appeals her conviction, after a bench trial, for Class A misdemeanor prostitution.1 Nichols was arrested for prostitution after she agreed to have sex in exchange for money with an undercover detective outside of a strip club. At trial, she filed an Indiana Trial Rule 41(B) motion to dismiss the charge after the State presented its case-in-chief, raising the affirmative defense of entrapment and arguing that the State had not presented sufficient to rebut the defense. In support of this argument, she noted that the undercover detective had solicited the criminal activity. The trial court denied the motion, finding that, while there was evidence that the detective had induced Nichols’ behavior, there was also evidence that she was pre-disposed to prostitution and, therefore, the detective did not entrap her. On appeal, Nichols disputes the trial court’s denial of the motion and argues again that she was entrapped into committing prostitution. Because we find that the undercover detective presented Nichols with a mere opportunity to commit prostitution, but did not otherwise induce the offense, we conclude that there was no entrapment. In addition, there was sufficient evidence to support Nichols’ conviction. We affirm.In Somchanh Amphonephong v. State of Indiana , a 16-page opinion, Judge Pyle writes:
Following a jury trial, Somchanh Amphonephong was convicted of three counts of child molesting, one as a Class A felony and two as Class C felonies. At sentencing, Amphonephong informed the trial court that he wanted to appeal his convictions. The trial court told Amphonephong that it would appoint appellate counsel, but it failed to do so. Eighteen months later, Amphonephong filed a petition seeking permission to file a belated notice of appeal. The trial court, acknowledging that it had failed to appoint appellate counsel, granted Amphonephong’s petition.NFP civil decisions today (4):
On appeal, Amphonephong challenges only his Class C felony child molesting conviction as charged in Count III, arguing that there is insufficient evidence to support the conviction. The State cross appeals the trial court’s order granting Amphonephong permission to file a belated notice of appeal. The State acknowledges that Amphonephong was not at fault for the failure to timely file a notice of appeal but contends that we should reverse the trial court’s order and remand for a hearing on Amphonephong’s petition because: (1) the trial court did not make an express finding that Amphonephong was not at fault and was diligent in his attempt to file the belated appeal; and (2) Amphonephong failed to specifically allege that he was diligent.
Concluding that the trial court did not abuse its discretion by allowing Amphonephong to file a belated notice of appeal and that there is sufficient evidence to support Amphonephong’s Class C felony child molesting conviction as charged in Count III, we affirm.
J. Richard Presser, Rachel E. Presser, Kevin Kelley, Richard Sanderson, Rosemary Sanderson, Thomas Reis and Mary Reis v. North Indiana Annual Conference of the United Methodist Church, et al (mem. dec
NFP criminal decisions today (3):
Ind. Decisions - Transfer list for week ending May 22, 2015
No transfer list for last week has yet been posted by the Court.
Ind. Courts - Man settles with Indy in federal court for 11 months in jail - wrongful imprisonment
Jill Disis reported May 23rd in the Indianapolis Star:
Carlos Starks will never regain the 11 months he spent behind bars, awaiting trial for a murder he knew he didn't commit.The ILB has been advised that the Star reporter ultimately learned the amount of the settlement from Starks' attorney Kevin Betz.
But nearly five years after his initial arrest, the days Starks spent mired in court battles are over. The lawsuit he filed against an Indianapolis Metropolitan Police Department detective and the city for what he says was a wrongful arrest and imprisonment has been settled for $650,000 in federal court — the largest amount in such a case in recent city history and perhaps ever.
The 2012 lawsuit filed against Detective Lesia Moore alleged that she made false and misleading statements to pursue a murder warrant for Starks' arrest in the 2010 slaying of Douglas Craft * * *
Although the suit was settled April 28, the city's first public acknowledgment of the resolution came in an e-mailed news release early Saturday morning that did not include the settlement amount. In addition to the financial agreement, the city said it also supports the expungementof the murder charge from Starks' record, though it does not admit to any liability in the case. * * *
An e-mail reply from Samantha DeWester, the city's public access counselor, indicated she was unavailable until Tuesday. Attempts to reach Moore through police authorities for a comment on the settlement were unsuccessful. * * *
Bob Hammerle, a local defense attorney, called the settlement "profound" – but he stressed that it will prove most valuable only if it extends to the city's future training of police investigators.
"It will only have meaning down the road," he said, "if they're going to instruct their detectives to use this case as a model not to make this mistake again."
Ind. Courts - "Fish farm facing big court judgments, questions"
An Albany-area fish farm that fell out of contact with Delaware County economic development officials is now facing more questions — and more than $200,000 in court judgments stemming from lawsuits."Bell Aquaculture" may sound familiar -- the ILB posted another Star-Press story, just last year, on Feb. 26, 2014, headed "Fish farm plans $30 million expansion; but neighbors raising a stink." This was followed by a March 31, 2014 post quoting the Star-Press: "The Metropolitan Board of Zoning Appeals on Thursday night voted 4-3 to approve a variance that will allow Bell Aquaculture to install a fish feed mill that supporters say will act as a catalyst to grow the state’s aquaculture industry."
Bell Aquaculture has been sued by businesses owed money by the fish farm. In at least two cases, Bell officials lost in court because they never responded to the lawsuits, court records show.
People who have done business with Bell tell The Star Press the company’s behavior is baffling and wonder if it indicates a business in serious trouble. Companies that won court judgments hope that is not the case. * * *
When it opened in Albany and Redkey in the mid-and-late-2000s, the company promised to create jobs by growing millions of pounds of fish for consumers. Bell’s products have been sold in restaurants and stores.
The company has said it hoped to raise $15 million from private investors and, in 2012, Bell — through the Economic Development Alliance — asked the county to issue $16.6 million in economic development revenue bonds. The county created a tax increment financing (TIF) area for Bell and subsequently also agreed to build a $1-million-plus road to Bell to get truck traffic off Albany streets.
After hearing nothing from Bell this year, the county stopped that road project, although land had already been purchased for the road’s construction.
Ramey, who successfully sued Bell over his bill for trucking, said he was owed $10,000. The company is negotiating with companies it owes to bargain down its debt, Ramey said.
“They’ve got $20 million worth of equipment on the floor crated and not in use,” Ramey said. The Star Press was also told that electric service to Bell was cut off earlier this year for non-payment of utility bills.
Tuesday, May 26, 2015
Law - "The fall and rise of lawyers" - A cold-eyed examination
Benjamin H. Barton, a law professor at the University of Tennessee, has this commentary today at CNN.com. This section on the futility of mandatory pro bono efforts caught my eye:
Study after study show that legal fees are too high for most middle- and low-income Americans, even when they face a very serious legal problem.This is followed by:
Even junior lawyers charge more than $200 an hour, and relatively simple matters like drafting a will or incorporating a business take 10 hours or so. As a result, many Americans cannot afford to get divorced, change child custody arrangements or defend themselves in eviction/foreclosure proceedings.
Bar associations have argued for years that increased legal aid funding, required pro bono service, or a constitutional right to a free lawyer in civil cases are the answers to these problems, i.e. more individualized legal services by more lawyers.
This is an unrealistic analog, 1960s-era solution to a very serious problem. There will never be sufficient funds to pay for enough individualized legal work to meet the needs of the poor, let alone the middle class.
Fortunately, except for in-court representation, computerization is on the verge of bypassing the legal profession altogether and solving these problems. Start with the basics of American law -- statutes, regulations, and reported court decisions.
Nonprofits and government entities have put almost all of the raw materials of American law online and Google and other search engines have made that law easier to find than ever. An American with a smart phone now has more access to legal sources than most lawyers or judges did fifteen years ago.
After a wrenching period of change, the profession itself will be improved. The profession will benefit greatly as fewer students enter law school with a more realistic idea of what lawyers do and earn. The actual job of being a lawyer will also improve.
Virtually all of the legal work that is repetitive or simple -- whether corporate document review or a basic divorce -- will be automated, outsourced or handled by less expensive non-lawyers. Only the most complicated, important and interesting work will remain. As Richard Granat puts it, "lawyers will practice at the top of their license."
Ind. Decisions - Tax Court posts opinion filed May 22nd
In Marion County Auditor v. State of Indiana, a 10-page opinion, Judge Wentworth writes:
The Marion County Auditor has filed an appeal with this Court challenging the constitutionality of Indiana Code § 6-1.1-15-12. * * *
Indiana Code § 6-1.1-15-12 permits only taxpayers to appeal to the Indiana Board from a PTABOA determination on a Form 133. I.C. § 6-1.1-15-12(e). See also Musgrave, 658 N.E.2d at 141. Consequently, the Auditor lacks statutory standing to appeal the PTABOA’s determination on Grandville’s Forms 133 to the Indiana Board and, ultimately, to this Court. The Auditor acknowledges as much.
Despite the lack of statutory standing, the Auditor urges the Court not to dismiss her case because she has “traditional standing” in that she has been “aggrieved” (i.e., she has suffered an injury). Specifically, she states:* * * However, [Indiana Code § 6-1.1-15-12] does not provide a similar remedy to [county auditors and assessors across the State] nor does it provide [them] with a direct avenue for judicial review of a PTABOA determination, effectively foreclosing [them] from judicial review of an administrative tax determination . . . [A]s a result ... [Indiana Code § 6-1.1-15-12] is invalid under the Indiana Constitution. ... Th[is] issue before the Court affects all county auditors across the State and is likely to recur. Thus, this Court should . . . address the merits of [my] claims[.]* * *
By its plain terms, Indiana Code § 6-1.1-15-12 denies standing to the Auditor to appeal the PTABOA’s decision on Grandville’s Forms 133 to this Court. Consequently, the fact that she is a governmental official who is challenging the constitutionality of a statute is of little significance here. * * *
This Court is a creature of statute. As such, it may only determine the constitutionality of Indiana Code § 6-1.1-15-12 when a case containing such a claim is properly before it. Here, the Auditor does not have statutory or common law standing to appeal the PTABOA’s decision on Grandville’s Forms 133 to this Court. Accordingly, the issue of whether Indiana Code § 6-1.1-15-12 is unconstitutional must be decided another day. The State’s motion to dismiss the Auditor’s appeal pursuant to Trial Rule 12(B)(6) is hereby GRANTED.
 The Auditor has asked the Court to declare Indiana Code § 6-1.1-15-12 unconstitutional but that very statute bars the Court from deciding the issue. The irony of this situation is not lost on the Court. Nonetheless, the Auditor’s remedy lies with the Indiana General Assembly.
Ind. Decisions - SCOTUS reverses 7th Circuit opinion on authority of bankruptcy judges
As Patrick Fitzgerald reported in the $$$ WSJ late this morning:
The ruling clarifies the role of some 1,000 judges in the federal court system, a group whose constitutional authority has come into question since a 2011 high-court decision involving the late Playboy playmate Anna Nicole Smith.
Bankruptcy-court judges have worked under a cloud of uncertainty since a 2011 Supreme Court decision that found bankruptcy judges only have the authority to offer a final ruling on a dispute that “stems from the bankruptcy itself”---a phrase whose definition has become cause for much debate. Other issues, the court ruled, must be decided by the district court.
Ind. Decisions - Court of Appeals issues 4 opinion(s) today (and 8 NFP memorandum decisions)
For publication opinions today (4):
In James E. Reed v. Review Board of the Indiana Department of Workforce Development, and A.W. Holdings, LLC, a 21-page opinion, Judge Brown writes:
James E. Reed (“Employee”) appeals a decision by the Review Board of the Indiana Department of Workforce Development (the “Board”) denying his claim for unemployment benefits. Employee raises two issues, which we revise and restate as whether the record supports the Board’s decision. We reverse. * * *In Willie B. Jenkins v. State of Indiana, a 9-page opinion, Judge May concludes:
We conclude that the record lacks substantial evidence to support a finding that Employee knew that his conduct violated Employer’s professional conduct rule that employees “in no way exploit, neglect or inflict physical or psychological harm on a client.” Exhibits at 18. The record does not establish Employee knew or could be charged with the knowledge or reasonably anticipate that his action to restrain Client D in the vehicle under the circumstances could result in the termination of his employment. We reverse the decision of the Board that Employee was terminated for just cause and denying Employee unemployment benefits and remand for further proceedings consistent with this opinion.
The State presented sufficient evidence Jenkins committed Class A felony burglary. Blackmon’s testimony was not incredibly dubious, and any error in the admission of the picture of Jenkins’ co-actor was harmless. Accordingly, we affirm.In Bobby Dunn v. State of Indiana, a 10-page, 2-1 opinion, Judge May writes:
Bobby Dunn and the State entered into a plea agreement, which the court accepted. Then on the morning of his sentencing hearing, the State moved to withdraw the plea agreement. The court granted the State’s motion. We reverse and remand for sentencing. * * *In William Bowman v. State of Indiana, a 6-page opinion, Judge May writes:
The State and Dunn reached a plea agreement and presented it to the court. The trial court accepted it on May 16, 2014, when it found Dunn guilty and scheduled the sentencing hearing. While Dunn had no right to be offered a plea agreement and the State could have withdrawn it at any point prior to acceptance by the court, once it was accepted, the court could not revoke or vacate it. * * *
To the extent the trial court permitted withdrawal based on Deputy Prosecutor Baldwin’s assertion at the sentencing hearing that the victim had not been notified, any error in the trial court’s original acceptance of the plea was invited by the State, as Deputy Prosecutor Kelly’s affidavit represented at the guilty plea hearing that the State had, in fact, notified the victim. * * *
Pyle, J., concurs.
Barnes, J., dissents with separate opinion. [that begins on p. 7 and that concludes] Here, because the victim never knew of the proposed plea agreement, she could not have intentionally relinquished her constitutional rights to be consulted about the plea and to be present at the change of plea hearing. That the original prosecutor may have misrepresented having consulted with the victim, as found by the trial court, does not change that fact.
In my view, this is a case in which withdrawal of the plea agreement before sentencing was warranted. The trial court did not abuse its discretion in reaching that conclusion. I vote to affirm.
William Bowman appeals his conviction of and sentence for Class A felony dealing in a narcotic within 1,000 feet of a school and his adjudication as an habitual offender. As the State did not prove Bowman committed Class A felony dealing in a narcotic within 1,000 feet of a school, we reverse. * * *NFP civil decisions today (3):
Because the State did not prove the product of the “controlled” buy was heroin, there was not sufficient evidence Bowman committed Class A felony dealing in a narcotic within 1,000 feet of a school. Accordingly, we reverse.
NFP criminal decisions today (5):
Ind. Gov't. - "Did patronage lead to BMV overcharges?"
Great reporting this weekend from Tony Cook and Tim Evans of the Indianapolis Star. Some quotes:
The Indiana Bureau of Motor Vehicles' chief financial officer, a man who oversees a $110 million budget, lacks one of the most basic qualifications typical of CFOs.There is much more in the lengthy, must-read story. It concludes:
Harold Day has no college degree.
Day does have something else valued in state government — political connections. He is a longtime GOP ward boss whose wife was an Indianapolis councilwoman. He got his job with a recommendation from former Republican Perry Township Trustee Jack Sandlin. * * *
Despite repeated hints, Day, for example, was unable to say what branch of government he worked for: judicial, legislative or executive.
He also testified that he neglected to collect interest on a BMV account that routinely contains $5 million to $20 million.
"That's a sign that this is not somebody who is well-equipped to do their position," said Trevor Brown, director of the John Glenn School of Public Affairs at The Ohio State University. "The transgression is not that you have a political appointee, it's that you have appointed a political appointee that doesn't have requisite skills required to perform the task."
And Day's credentials were not the only ones called into question.
Ron Hendrickson, who until recently was the BMV's deputy commissioner in charge of driver's licenses, was a former snowplow driver and pizza shop manager without a college degree. But he was a former Republican precinct committeeman from the city's Eastside.
Even Scott Waddell, the former BMV commissioner who ignored warnings that the agency was gouging motorists with excessive and illegal fees, had no experience in government, despite having a college degree. He got his job through Jim Kittle, a prominent political fundraiser and former Indiana Republican Party chairman. * * *
While license fees no longer go directly to the parties, political appointments of top officials are still common at the BMV, and all across government. Experts say that can cause problems when appointments are made with too little consideration for professional expertise. * * *
More clear is that a lack of expertise among top BMV officials likely cost the state money.
In discussing the BMV's primary bank account during a deposition in the ongoing lawsuit, Day explained that it had $5 million to $20 million in it on any given day. When asked if he ever sought interest on those funds, he said: "No."
"Have you ever even thought about the possibility that a bank might be willing to pay interest on somebody whose deposits average between $5 (million) and $20 million every day?" Irwin Levin, the Indianapolis attorney representing plaintiffs, asked.
"No, I have not," Day said.
"Can you think of any reason not to ask the bank to pay the Bureau of Motor Vehicles interest on the $5 (million) to $20 million that it has parked in the bank on any given day?" Levin asked.
"No," Day said.
In another exchange, Day expressed confusion about which branch of government the state budget office falls under. Levin then asked, "Do you know what branch of government the BMV is in?"
"No, I do not," Day said.
Gov. Mike Pence has said his administration is working to clean up the agency, and lawmakers plan to study potential reforms before next year's legislative session begins.The story has sidebars about some of the players, including:
In the meantime, no one from the BMV has been publicly disciplined or fired, despite the massive financial blunders.
Waddell returned to the private sector in November 2013 as the state was settling the first lawsuit. Hendrickson moved to another state agency, the Family and Social Services Administration, where he receives $80,750 a year. Day is still the BMV's chief financial officer, with an annual salary of $74,000.
Harold Day: A longtime Republican ward boss, he landed a job at the BMV as a budget analyst in 2007. Before that, he worked in the finance departments of some construction companies. Later, he was a deputy for Republican Perry Township Trustee Jack Sandlin, who recommended him for a job at the BMV when he left office. In less than a year, Day was promoted to chief financial officer, a position he still holds today at an annual salary of $74,000. [ILB: From the main story - "he neglected to collect interest on a BMV account that routinely contains $5 million to $20 million."]ILB: In my experience, "The governor's office wants you to find a place for this guy" is a message decades of state agency heads have received and followed.
Ron Hendrickson: The former Republican precinct committeeman did stints as a snowplow driver for the state, a pizza store manager and a salesman for a charter airplane company before getting a job as a regional manager at the BMV, overseeing about 20 license branches. He was later promoted to deputy commissioner of policy and programs. He still works for the state, but not at the BMV. He left his job as deputy BMV commissioner of policy and programs in September 2013 and is now an information technology project manager for the Family and Social Services Administration. He receives a salary of $80,750. [ILB: Really.]
Catch-up: What did you miss over the weekend from the ILB?
From Monday, May 25, 2015:
- Ind. Gov't. - "The In-State Tuition Break, Slowly Disappearing" - Purdue named as example
- Ind. Law - "Cyber sleuths eager to link Messel, other IU cases"
- Ind. Gov't. - "Flash mob mentality hits political scene"
- Ind. Law - "New Indiana law: Move over, slowpokes"
- Ind. Courts - "Changes to slash Tippecanoe Court Services staff in half"
- Ind. Gov't. - More on: "Indiana pays $650,000 in Legal Fees to Marriage Law Challenges - So far"
- Ind. Gov't. - "The Public Works Committee of the City County Council voted Thursday to sue the Ballard Administration over the Vision Fleet electric car deal"
- Ind. Gov't. - "Loss of Obamacare subsidies could be dire"
- Ind. Decisions - Upcoming oral arguments this week and next
Monday, May 25, 2015
Ind. Gov't. - "The In-State Tuition Break, Slowly Disappearing" - Purdue named as example
Kevin Carey, of the NY Times feature, The Upshot, wrote in a column May 18th:
Over the last decade, state governments and universities have been chipping away at a pillar of American opportunity: in-state tuition.
Part of this story is familiar to anyone who has watched public universities raise tuition and fees, in some cases by 50 percent or more. But there’s another, less obvious, part of the story. Many of the most elite public universities are steadily restricting the number of students who are allowed to pay in-state tuition in the first place.
A result is the creeping privatization of elite public universities that have historically provided an accessible route to jobs in academia, business and government. One of the most important paths to upward mobility, open on a meritocratic basis to people from all economic classes, is narrowing.
To understand why, it helps to divide public universities into two categories. The nonprofit Carnegie Foundation classifies 147 public universities as national leaders in conducting research. These are the flagship universities and land-grant institutions that often have selective admissions criteria and Division I football teams. An additional 500 regional public universities conduct less research and often have less selective admissions policies. These two groups — national and regional public universities — each educate about the same number of students. [ILB - Purdue University and Indiana University are examples of national public universities.]
Most students attending public universities stay in the state where their parents reside, in large part because in-state students have traditionally received a steep tuition discount. Out-of-state students have long been in the minority and pay tuition closer to that charged by private universities. As recently as 2000, national and regional public universities were similar in this regard. That year, 80 percent of national public university students were in-state, compared with 86 percent at regional public universities.
But in the years that followed, the two groups began to diverge. At regionals, little changed. College enrollment swelled in every state after 2000 as the baby boom echo generation finished high school and a larger share of high school graduates enrolled in college. The additional students at regional universities looked much like the old ones. From 2000 to 2012 (the latest year of available federal data), nine out of 10 additional regional public university students were in-state.
The pattern at elite national universities was very different. There, the majority of additional students were from other states. Instead of extending their traditional mission of providing an affordable, high-quality education to local residents, national universities focused on recruiting students from other states and nations, many of whom paid much higher tuition rates. As a result, the number of in-state spots relative to the college-going population as a whole declined significantly at national public universities. * * *
Alabama accomplished this in part by substantially expanding the total number of students it enrolls, including in-state students. Other public universities have made space for out-of-state students by allowing fewer in-state ones to attend. * * *
Purdue University cut annual in-state slots for incoming freshmen by more than 500 students, the University of Illinois at Urbana-Champaign by more than 300, and Auburn and Michigan State by more than 200, with each enrolling hundreds of additional out-of-state and international students in their stead.
Replacing in-state with out-of-state students can be easier than raising prices because tuition increases are highly public and are frequently regulated by state legislatures and governing bodies. Universities often have more discretion over the in-state/out-of-state of mix. * * *
The slow death of in-state tuition is a case where declining public investment and selfish institutional interests tend to coincide. National public universities are cutting in-state enrollment in part to make up for state budget cuts. But they also have a strong desire to become more like elite private universities — Stanford, Duke, the Ivy League — that have the freedom to enroll the best and the brightest from around the world and charge whatever prices the market will bear. Budget cuts give them an excuse to become what they wanted to be all along.
Ind. Law - "Cyber sleuths eager to link Messel, other IU cases"
A mystery of sorts involving a 14-year-old composite police sketch and possible threads some think might connect the disappearances of three Indiana University students, two slain and one still missing, is solved.
Turns out the sketch, being compared by online sleuths to Daniel Messel’s recent jail mugshot and connected on Facebook and other online sources to 19-year-old IU student Jill Behrman’s 2000 abduction and murder, has no relevance to the Behrman case. Or to Messel, charged with murder in last month’s beating death of 22-year-old IU senior Hannah Wilson.
But the path of the drawing shows how social media and its wide, fast reach can affect public perception.
The sketch actually is the suspect in the attempted abduction of a bicyclist on a rural road near Bowling Green, Kentucky, that happened on Mother’s Day 2001. The woman who was attacked, contacted last week, confirmed that the composite sketch some say resembles Messel is one she helped create after a man knocked her off her bike on Old Richardsville Road and tried to abduct her 14 years ago.
“That is definitely the police sketch that came out of my case,” she said.
The description she gave was of a young white man, 5-foot-11 and 190 pounds, with reddish hair, a fair complexion and acne-scarred face. It does not match Messel, who is taller, heavier and has brown hair. Police in Warren County, Kentucky, actually identified a suspect in the abduction attempt there, a 24-year-old man with a criminal record. Both the victim and a witness picked him out of a series of photographs.
The man was detained and questioned but never charged in the incident, which remains unsolved. When Bowling Green television station WBKO aired a news segment naming the suspect and showing a mugshot of him days after the incident, the Warren County sheriff complained the story foiled the investigation.
Behrman had disappeared while on a bicycle ride near Bloomington. At the time, local police and the FBI looked into the possibility the two bicyclist cases might be linked. Behrman’s body had not been found when the Kentucky abduction attempt occurred, and leads were slim.
Ind. Gov't. - "Flash mob mentality hits political scene"
That is the heading to an insightful Doug Ross column this weekend in the NWI Times illustrating how, using social media, recent objectors have more easily organized their protests than in the past. As in Arab Spring, but here in Indiana. Some quotes:
Perhaps you're familiar with the term flash mob, which refers to the sudden appearance of a big group of people at a single site. Flash mobs often burst into song. Well, there's a different kind of flash mob developing in politics.
This kind of flash comes when an issue suddenly gains a lot of attention, and it can catch people by surprise. We've seen some recent examples of it right here in Indiana.
A Mid-America Press Institute panel discussion for journalists in Schererville last week dealt with coverage of the Religious Freedom Restoration Act. Dan Carden of The Times, Chelsea Schneider of the Evansville Courier & Press and Tom Davies of the Associated Press, the three panelists, were all covering the Indiana General Assembly this session. (Schneider and Davies are proud alumni of The Times.)
The national outcry over RFRA seemed to be spontaneous combustion, a flash mob of public opinion against RFRA. It came a month after the Indiana Senate had already approved the legislation. The opponents of the legislation overwhelmed the proponents, and the law was quickly "fixed" to mollify opponents and keep the tourists coming to Indianapolis, a city where tourism is its bread and butter.
Two days prior to the panel discussion, on Monday, Robert Sands and family pulled the plug on their proposed Morgan Township concentrated animal feeding operation, which would have housed about 5,600 hogs, with a capacity of 7,000 hogs. The Porter County Plan Commission was to have held a public hearing Wednesday on the CAFO operation.
This, too, saw a sudden groundswell of public opinion against the proposal. Anyone who has seen hogs knows that slop goes in the front end and manure comes out the back end. And that manure stinks. * * *
The point here is that a sudden uprising developed in opposition to the hog farm.
It's similar to what happened when news broke of plans to refurbish the pavilion at Indiana Dunes State Park and add a banquet facility to the main structure on an existing concrete pad.
The proponents were clearly unprepared for the backlash, although the Indiana Department of Natural Resources, at least, should have been. The outcry over the proposal to add a hotel at the park several years ago was so strong that Potato Creek State Park near North Liberty was chosen instead for the site of a new inn, the first to be built in decades.
Some of the opponents have even talked about suing over the project to try to stop the building from being erected.
There are other groups that have popped up quickly in opposition to various proposals recently.
With opponents emboldened by the RFRA and hog farm successes, I'm predicting we'll see more of this flash mob mentality in the future.
Ind. Law - "New Indiana law: Move over, slowpokes"
Dan Carden of the NWI Times reported this weekend:
The never-ending battle over use of the left lane on interstate highways almost certainly is intensifying this Memorial Day weekend as millions of motorists travel to or through Indiana, the "Crossroads of America."The story also points out:
Speedy drivers tend to believe the left lane is reserved for them to pass all the slowpokes and trucks in the highway's right lane.
Meanwhile, motorists traveling the speed limit often insist they are free to use the left lane because it is illegal to drive any faster than they are going.
Who is right?
Come July 1, a new Indiana law enacted by Republican Gov. Mike Pence gives speeders the right-of-way and motorists obeying the speed limit in the left lane could get slapped with a fine.
House Enrolled Act 1305 permits police to issue $500 tickets to left lane drivers who fail to move into the right lane if they know, or should reasonably know, another vehicle is overtaking them — even if the other vehicle is exceeding the speed limit.
State Rep. Jud McMillin, R-Brookville, said he sponsored the law to ensure "individuals who are driving in the fast lane slowly are properly incentivized to get out of your way."
The mandate does not apply during traffic congestion, bad weather, when exiting on the left, paying a toll or pulling over for an emergency vehicle, according to the new law.
But at all other times a motorist risks a fine if he or she is in the left lane and does not move to the right when another vehicle wants to pass.
The law was approved by the Republican-controlled House 97-0, but just barely passed the Republican-controlled Senate, 29-20.
State Sen. Karen Tallian, D-Ogden Dunes, said during debate on the measure that it was "the silliest, most unjustifiable proposal of the entire session."
"It really doesn't make sense to put law-abiding citizens as the criminal here," Tallian said. "You can be driving down the road at 70 miles per hour, doing the speed limit, and some joker comes up behind you doing 90 and you're the one who gets the ticket?"
She also pointed out, along with state Sen. Jim Tomes, R-Wadesville, that the new right-lane mandate likely won't be enforced since a police officer probably would pull over and ticket the speeding driver, instead of the person who does not get out of the speeder's way.
Illinois law prohibits motorists from using the left lane of an interstate highway in all circumstances, except when passing other vehicles or traffic congestion, weather or road conditions necessitate left lane use.Here is HEA 1305. The amendment is found in SECTION 69, beginning on p. 28.
Ind. Courts - "Changes to slash Tippecanoe Court Services staff in half"
This story by Steven Porter today in the Lafayette Journal & Courier appears to have ramifications beyond Tippecanoe County. Some quotes:
Four of the seven existing full-time staff positions will be cut this summer from the Tippecanoe County Court Services payroll.
The reduction in force, effective June 30, was announced Friday afternoon as part of a broader reorganization effort to streamline the way defendant needs are met locally.
Tippecanoe Superior Court 6 Judge Michael Morrissey, one of the three judges who oversee Court Services, said it will be difficult to part ways with dedicated employees. * * *
The reorganization calls for Court Services to position itself as a division within the Tippecanoe County Probation Department, which means all Court Services evaluators and case managers must be eligible for certification as a probation officer, according to the release.
“It’s a move many counties are making,” Tippecanoe Superior Court 5 Judge Sean Persin said Sunday, citing St. Joseph County as one recent example.
A decline in the number of misdemeanor cases filed in recent years is just one of several factors that have converged to make this a prime time to reorganize, Persin said.
Earlier this month, Gov. Mike Pence signed a new law that, among other things, calls for counties to eliminate redundancies in the services they offer.
The policy change dangles state grant money as an incentive.
“If you duplicate services, you’re not given priority,” Persin said, noting that he, Morrissey and Tippecanoe Superior Court 4 Judge Laura Zeman have interpreted the new rule to mean that jurisdictions with redundancies simply wouldn’t receive the funding.
“You have to prove to the state that your drug and alcohol program, your probation department and your Community Corrections department aren’t doing the same things, which makes sense,” Persin said.
Accordingly, the reorganization will discontinue Case Alert Tracking and pretrial release programs currently offered by Court Services because similar programs are already offered by Probation and Community Corrections. * * *
Court Services, which evaluates low-risk offenders and refers them to outside service providers, will remain distinct from other county entities that serve high-risk populations, Persin noted.
Ind. Gov't. - More on: "Indiana pays $650,000 in Legal Fees to Marriage Law Challenges - So far"
In this March 13, 2015 post, the ILB reported:
It appears that the $650,000 is likely well less than half of the total payout in legal fees the State will be making to the various plaintiffs who successfully contested the Indiana prohibition against same-sex marriage in federal trial court and then again in the 7th Circuit. There were five sets of plaintiffs. Federal civil rights law awards prevailing parties - in this case the plaintiffs - their attorney fees.Today Stephanie Wang reports in the Indianapolis Star:
The state paid more than $1.4 million in fees to plaintiffs’ attorneys in five federal court cases that challenged — and ultimately helped overturn — Indiana’s ban on same-sex marriages, according to the attorney general’s office. * * *
Here’s how much Indiana spent on each of the five federal cases, according to information provided by the state attorney general’s office:
- The most costly case for the state was that of Amy Sandler and Niki Quasney, a Munster couple who fought to have their marriage recognized as Quasney was dying of cancer. Theirs became the lead case in Indiana on same-sex marriage. Quasney died in February — as a legally recognized married woman. The state paid a total of $650,000 to two law firms in this case, including Lambda Legal.
- The American Civil Liberties Union was part of a lawsuit filed on behalf of six couples, a widow and two children. The widow, Midori Fujii, was not allowed to make funeral decisions after her wife died, because Indiana did not recognize their same-sex marriage, which had been perfomed in California. That also created an inheritance tax issue. In this case, Indiana paid about $196,000 in fees.
- Four public servants — police officers and a fire battalion chief — sued after the state would not recognize their same-sex spouses as pension beneficiaries. This case, filed by Indiana Equality Action, cost the state about $336,000 in fees.
- Four same-sex couples filed a federal lawsuit for the legal right to marry or have their out-of-state marriages recognized. The case was brought against Gov. Mike Pence but was dismissed after a question was raised over whether he was the proper defendant to be named, “because the Governor cannot remedy the harms alleged by them,” as the court noted. The state paid $45,000 in fees for this case.
- Another lawsuit was filed by two same-sex couples seeking to have their out-of-state marriages recognized in Indiana. The state paid $195,000 in fees.
Ind. Gov't. - "The Public Works Committee of the City County Council voted Thursday to sue the Ballard Administration over the Vision Fleet electric car deal"
That was the lede to this lengthy May 21st CBS WTTV4 story by Russ McQuaid that included a number of interesting quotes - here are a few of them:
Council members have complained that the Administration avoided council and Public Works Board scrutiny and approval in awarding the no-bid contract to Vision Fleet as a services agreement instead of a supplies lease deal.
Council Attorney Fred Biesecker told the committee that a deal involving vehicles, though the compensation to Vision Fleet may be based on a miles driven fee, was clearly a lease and under the council’s purview.
“It is voidable for failure to satisfy 202-204 it may well be void from the beginning under IC 36 4 8 12 and a couple other statutes and it’s still not in compliance with state and local procurement law,” Biesecker said.
Union members, the public and councilors complained that they have been denied information on the deal since its inception in the summer of 2013 and only became aware of the ramifications after the release of a heavily redacted version of the company’s contract with the city. * * *
Top aides to Mayor Ballard cautioned the committee to not vote in favor of litigation, claiming Vision Fleet’s reputation as a young company still trying to sign more customers than its single Indianapolis partner was at stake.
“There is a company’s reputation at stake as they go out and get investors and try to move to other cities. They’re unfairly pulled into the situation and that could have all been avoided,” said Deputy Chief of Staff David Rosenberg.
The Ballard aides neglected to mention the well-being of taxpayers, city employees, Metro police officers or respect for the council authority in their plea to halt the committee vote.
Rosenberg encouraged the council committee to direct its attorney and chief financial officer to hire an outside lawyer to mediate the dispute between the council and the mayor as he blamed the threatened legal action on election year politics.
“Third party counsel,” said Rosenberg in a last desperate attempt to head off a political embarrassment for the outgoing mayor who committed to greening Indianapolis government. “A party that has no interest in it can find an appropriate way to move forward again before we drag a company through the mud unintentionally and continue to tarnish the reputation of Indianapolis.”
“I don’t blame the company at all for any of this,” said committee chairman Zach Adamson, a Democrat who told Rosenberg the administration could have avoided this dispute by bringing the council and Public Works Board into the conversation two years ago.
“It’s not the company that did this,” said Councilman Frank Mascari, a Beech Grove Democrat. “It’s Corporate Counsel here in this building that messed this up.”
Ballard told CBS4 News that the Office of Corporation Counsel under Andy Seiwert provided, “sloppy legal work,” on the deal that the mayor intended to last long after he left office.
One legal scholar told CBS4 News that the work under Seiwert’s leadership amounted to, “poor lawyering” that would prove a cautionary tale for his law students.
“You have all this other documentation,” said McKinney Law School Vice Dean Antony Page as he leafed through the contradictory contracts collected by CBS4 News, “and it really looks as though…well, frankly, it looks as though they were trying to hide something.
“Who thought it was a good idea to white these out? To white out these dates?” Page asked rhetorically as he examined clearly altered signature pages that may or may not commit the city to the Vision Fleet deal. “Somebody had to physically do that? Who did that and what were they thinking, you know? Whiting out a document?”
Seiwert, who struggled to answer council questions as he stood by Rosenberg’s side at the end of the meeting, admitted to CBS4 News that, “a clerical error,” led to the signature sheet from a discredited and discarded Lease Agreement, without a page number, being slipped into the final Master Fleet Agreement.
That, “inadvertently included,” page went undetected in a packet of documents handed to the media and city county council members until discovered by CBS4 News.
It was later confirmed as accurate by the mayor’s office only to have Seiwert walk that claim back when confronted repeatedly by CBS4 News.
“It certainly looks suspicious though it were again intended to deceive somebody,” said Page. Though the fact that they have since come clean and said it was a mistake means whatever deception hasn’t lasted particularly long but it’s a curious mistake to make.”
Councilman Mascari told the committee that the city’s failure to revoke the Lease Agreement when it rewrote the Master Fleet Agreement as a rental services deal means Indianapolis has two unenforceable and contradictory contracts with Vision Fleet.
Ind. Gov't. - "Loss of Obamacare subsidies could be dire"
That was the headline to a column this weekend in the Indianapolis Star, by John Ketzenberger. A few quotes:
You would think contingency plans are being readied as we await the Supreme Court’s decision, expected next month.For background, see this ILB post from March 4, 2015, headed "Indiana urges high court to terminate Hoosiers health insurance subsidies," quoting a NWI Times story that began: "Gov. Mike Pence and Attorney General Greg Zoeller are asking the U.S. Supreme Court to effectively cancel the private health insurance policies of more than 100,000 Hoosiers by the end of June."
You would be wrong.
And the consequences reach far beyond those who might lose their subsidies. Many experts think the entire health insurance market could go into a death spiral if the Supreme Court determines the subsidies are illegal. * * *
The Supreme Court’s decision carries high stakes, according to a white paper produced by Gregory and Appel, a large local insurance agency. The decision “could do real damage — even kill the ACA over time and change how health care is paid for in the country,” according to the paper, authored by Gregory and Appel’s Susan Rider and Karl Ahlrichs.
“If those individuals lost access to subsidies, the cost of coverage would be unaffordable for the vast majority of them,” the paper determined. “A subsidy shutdown could result in 9 million fewer people with coverage by 2016, a 70 percent decline. The resulting adverse selection caused by healthy people leaving the risk pool would spike insurance premiums in the individual market.”
That’s the market beyond those who receive subsidies, so those who currently can afford insurance would soon find that’s not the case anymore. If this happens, health insurers like Indianapolis-based Anthem would have a smaller base over which to spread costs, which means rates for group plans provided through employers likely would spike, too.
“The loss of a healthier risk pool would create unprecedented premium price growth and insurers leaving the marketplace would create an even more uncompetitive insurance market,” the Appel paper observed. “The industry would be in a ‘death spiral.’” * * *
Indiana joined several other states in asking the Supreme Court to eliminate the subsidies. What we don’t know is what they’ll do if the court gives them what they want.
Ind. Decisions - Upcoming oral arguments this week and next
This week's oral arguments before the Supreme Court (week of 5/25/15):
- No oral arguments currently scheduled.
Thursday, June 4
- 9:00 AM - State of Indiana v. John Buncich (45S00-1409-PL-587) IC 2-11-1.5-3-4 requires that a committee of the Lake County Board of Elections identify precincts with fewer than 500 active voters and determine the potential savings in the administration of elections resulting from the combination of small precincts, and requires the Board to adopt an order implementing the committee’s findings. The Lake Superior Court declared the statute was unconstitutional as a violation of Indiana Constitution Article 4, section 23 (prohibiting special legislation) and Article 3, section 1 (relating to the separation of powers). This is a direct appeal. See Ind. Appellate Rule 4(A)(1)(b).
- 9:45 AM - Termination of Parent-Child Relationship of V.A.; A.A. v. Indiana Department of Child Services (02A04-1405-JT-233) The Allen Superior Court terminated father’s parental rights after determining father was unwilling or unable protect child from mother, who suffered from mental illness. Mother’s rights were terminated in the same proceeding. Father appealed the termination of his rights and the Court of Appeals affirmed. In re V.A., No. 02A04-1405-JT-233 (Ind. Ct. App. Dec. 18, 2014) (Mem. Dec.). Father has petitioned the Supreme Court to accept jurisdiction over the appeal.
ILB: This was a 2-1, NFP Feb. 10, 2015 COA opinion.
- 10:30 AM - Anonymous Physician, et al. v. Richard L. Rogers (82A03-1401-CT-1) Patient sued physician for malpractice. The Allen Superior Court denied physician’s motion for summary judgment, finding a question of fact as to when the statute of limitations on patient’s claim began to run. The Court of Appeals reversed in a divided opinion, holding physician’s actions did not constitute a “continuing wrong,” and patient’s claim was barred by the medical malpractice statute of limitations. Anonymous Physician v. Rogers, 20 N.E.3d 192 (Ind. Ct. App. 2014). Patient has petitioned the Supreme Court to accept jurisdiction over the appeal.
ILB: This was 2-1 Nov. 22, 2014 COA opinion, holding: "Concluding that Physician’s last act of negligence occurred January 7, 2009 and that the doctrine of continuing wrong does not apply, Rogers’s claim is barred by the Medical Malpractice Act’s occurrence-based statute of limitations."
This week's oral arguments before the Court of Appeals (week of 5/25/15):
- No oral arguments currently scheduled.
Next week's oral arguments before the Court of Appeals (week of 6/1/15):
- No oral arguments currently scheduled.
ONLY those Court of Appeals oral arguments presented in the Supreme or Court of Appeals Courtrooms will be accessible via videocast. [Note: This may be changing...]
The past COA webcasts which have been webcast are accessible here.
NOTE: For a printable version of this list of upcoming oral arguments, click on the date in the next line. Then select "Print" from your browser.
Friday, May 22, 2015
Ind. Decisions - Court of Appeals issues 2 opinion(s) today (and 4 NFP memorandum decisions)
For publication opinions today (2):
In Charles D. Howard v. State of Indiana [ILB summary revised], a 17-page opinion, Judge Pyle writes:
Howard makes three disjointed arguments on appeal under a general issue of due process. First, he mainly argues that we should reverse and dismiss his convictions for resisting law enforcement and public intoxication because the trial court never ruled on part of his motion to suppress/dismiss. Second, he argues that any evidence obtained after his arrest should have been excluded because the police did not give him a Miranda warning upon his arrest. Third, he contends that the trial court should have dismissed all charges against him pursuant to Criminal Rule 4.In Leonard Blackmon v. State of Indiana , a 19-page, 2-1 opinion, Judge Baker writes:
We conclude that Howard’s arguments are either waived or otherwise without merit because: (1) the trial court issued a ruling on his motion to suppress/dismiss, and Howard did not object to the admission of evidence at trial; (2) the State did not introduce or seek to admit into evidence any of Howard’s post-arrest statements; and (3) Howard did not file a motion for discharge under Criminal Rule 4 or object to the trial court’s setting of any of his trial dates. Accordingly, we affirm his convictions. * * *
Howard makes a mish-mash of arguments under the general guise of one issue alleging that he was deprived of his due process rights. His main argument is that the trial court erred because it did not rule on his motion to suppress/dismiss in regard to his argument that there was a warrantless entry and arrest. As an offshoot of this argument, he contends that any evidence of resisting law enforcement and public intoxication should have been suppressed. He also makes peripheral allegations of error, contending that the police did not advise him of his Miranda rights at his house when they arrested him and that his right to a speedy trial, pursuant to Criminal Rule 4, was violated.
The State contends that Howard has waived these arguments because he did not raise a relevant objection at trial, he makes no cogent argument now on appeal, and/or the arguments are otherwise meritless. We agree.
Leonard Blackmon appeals his conviction for Intimidation, a Level 5 felony. Finding that the evidence was insufficient to prove that Blackmon acted with the intent that Donald Courtway be placed in fear of retaliation for a prior lawful act, as required by the intimidation statute, we reverse. * * *NFP civil decisions today (0):
May, J., concurs
Bradford, J., dissents with an opinion. [that begins, at p. 17] must respectfully dissent from the majority’s opinion as I would affirm Blackmon’s conviction for intimidation. * * *
Regardless of Courtway’s knowledge, Blackmon seems to have been of the mind that he had been caught and reacted aggressively. As such, I think it was reasonable for the jury to find that Blackmon threatened Courtway in retaliation for the prior lawful act of catching Blackmon stealing water.
Furthermore, I cannot agree with the narrow re-characterization of events to find that Blackmon only threatened Courtway in retaliation for his threatening to call the police, as opposed to his catching Blackmon stealing water. I see little logic in separating the act of catching someone performing illegal activity and subsequently calling the police regarding said activity; the two actions are part of the same series of events and, as such, the same prior lawful act.
NFP criminal decisions today (4):
Ind. Courts - "First Church of Cannabis could test RFRA"
Vic Ryckaert of the Indianapolis Star had a long story May 21st subheaded "Courts ultimately might have to decide whether practices amount to sincere religion." Some quotes:
[Bill Levin, the founder of the newly formed First Church of Cannabis] is daring police to arrest him and his followers in what will likely be one of the first tests of the state's new RFRA protections. * * *ILB: But perhaps they should not be surprised. From a June 30, 2014 entry in Constitution Daily:
RFRA, designed to protect religion from being infringed upon by the government, drew unanticipated attention on the Hoosier state when it became widely viewed as a license to allow business owners to refuse service to same-sex couples.
Under intense public pressure, Indiana lawmakers amended RFRA to specify that it can't be used to undermine local human rights ordinances that protect lesbian, gay, bisexual and transgender people from discrimination in Indianapolis and 10 other cities.
Experts say the act opens a new doorway in Indiana that invites a host of legal challenges from religious practitioners throughout the state. Challenges like this one from the First Church of Cannabis.
"It's not the type of plaintiff that was expected or that probably most supporters of RFRA had in mind," said Robert A. Katz, a professor at the Indiana University Robert H. McKinney School of Law in Indianapolis.
Here is the back story: In Employment Division v. Smith (1990), two American Indians who worked as private drug rehab counselors ingested peyote as part of religious ceremonies conducted by the Native American Church, and they were subsequently fired. The U.S. Supreme Court upheld the firing, with Justice Antonin Scalia saying that using a religious exemption in conflict of a valid law “would open the prospect of constitutionally required exemptions from civic obligations of almost every conceivable kind.”More from the Star story:
A near unanimous Congress passed RFRA in 1993 and President Bill Clinton signed the law. RFRA said that “governments should not substantially burden religious exercise without compelling justification” and “the compelling interest test as set forth in prior Federal court rulings is a workable test for striking sensible balances between religious liberty and competing prior governmental interests.”
Once a case gets to the courts, the state under RFRA must prove a compelling reason for government to interfere with religious practices, said Ken Falk, legal director of the American Civil Liberties Union of Indiana.
This elevated legal scrutiny makes it "very difficult for the government to win," Falk said. "That's something the court will have to wrestle with."
Falk pointed to other well-established religious traditions that are allowed. Catholics, Jews and members of other faiths drink wine at their services. Sometimes that wine is consumed by people who are under age 21.
"If you're drinking wine (and underage) in a nonreligious setting, you would be breaking the law," Falk said. "What's the justification if you smoke marijuana as part of your religion?"
Katz, the IU law professor, said the First Church of Cannabis will have to prove it's a sincere religion, not just an excuse for users to get together and smoke.
Courts - More on "Indiana church sues JPMorgan for millions"
In Jan. the ILB quoted a long CNNMoney story about a lawsuit by Christ Church Cathedral, which is the church on the Indianapolis Circle: "The church claims that JPMorgan intentionally mismanaged its funds, which shrank in the past decade. Meanwhile, the fees the church paid JPMorgan skyrocketed."
In a 16-page order dated May 21st, federal Judge Larry McKinney concluded:
For the reasons stated herein, the Court GRANTS Defendants JPMorgan Chase and Company’s and JPMorgan Chase Bank, N.A.’s, Motion to Dismiss, with leave to re- plead certain Counts: Count I is DISMISSED WITHOUT PREJUDICE as to both Defendants, with leave to re-plead; Count II is DISMISSED WITHOUT PREJUDICE as to JPMorgan Chase and Company only, with leave to re-plead; Count III is DISMISSED WITH PREJUDICE. Plaintiffs, The Rector, Wardens and Vestrymen of Christ Church Cathedral of Indianapolis, have 28 days from the date of this Order to file an Amended Complaint. Partial judgment shall not issue at this time.
Ind. Gov't. - "In very short order every police department at every private college is going to have to open their records"
That statement is Frank LoMonte, executive director of the Student Press Law Center, who is quoted in this story today by Jake New of Inside Higher Ed:
Sworn police departments at private colleges in Ohio are public entities and subject to state open-records laws, the state’s Supreme Court ruled Thursday, saying that a college being a “private institution does not preclude its police department from being a public office.”ILB: Here is yesterday's Ohio decision, and here is an April 30th South Bend Tribune call for the General Assembly to clarify Indiana's law. However, ESPN announced May 20th that it will "appeal a northern Indiana judge's ruling that the University of Notre Dame police department is not subject to the state's open records law," as reported in this Chicago Tribune story:
The ruling came a day after the Texas House of Representatives passed a bill requiring private institutions’ police departments to release some records, and one month after a judge in Indiana reached the opposite conclusion in a lawsuit against the University of Notre Dame.
“The handwriting is on the wall,” Frank LoMonte, executive director of the Student Press Law Center, said. “This is the direction the country is going in, and in very short order every police department at every private college is going to have to open their records. The legal fig leaf just got a lot smaller.” * * *
Unlike other sworn law enforcement agencies, sworn police officers at private colleges historically have not been seen as subject to open-records laws, even though they have the same authority as the agencies that are required to release records. That was the case at Otterbein, which has used sworn police officers since 2011.
A recent study by the Bureau of Justice Statistics found that nearly 40 percent of private colleges now use sworn, state-certified police officers, a growing trend that LoMonte said should result in more states requiring private colleges to release police records to the public.
While a judge rejected a similar argument in Indiana, LoMonte said he expects that decision to be appealed. In that case, ESPN is suing the University of Notre Dame for access to campus police records regarding sexual assault cases involving athletes.
In April, a Superior Court judge ruled that while Indiana state law allows private colleges to hire sworn officers, those police departments are not separate legal entities from the university. “If Notre Dame is a ‘public agency’ because it appoints police officers, it is a public agency, period,” the judge wrote.
“The Indiana judge just flat got it wrong,” LoMonte said. “He got really hung up on this idea that you can’t separate the police force from the institution. He treated it as an all-or-nothing question where, in order to open the police department, you have to open every record at Notre Dame. I think the judge really got hung up on a nonexistent technicality, and I think that will get corrected.”
Lawyers for ESPN filed a notice Wednesday with the Indiana Court of Appeals that it would appeal the April 20 ruling by St. Joseph Superior Court Judge Steven Hostetler.ILB: Here is the 11-page, April 20th opinion by Judge Hostetler.
See also this Jan. 21, 2015 ILB post on the Indiana Public Access Counseler's opinions which "put Notre Dame on notice about its handling of police records after complaints filed by ESPN and the South Bend Tribune," according to the SBT story.
Thursday, May 21, 2015
Courts - "Ohio: Private college police subject to records law"
From the start of an AP story this afternoon in the South Bend Tribune:
COLUMBUS, Ohio — Private colleges' police departments in Ohio are subject to the state open records law, a divided Ohio Supreme Court ruled Thursday in a case involving a lawsuit brought by a student journalist.Here is the story by Cory Shaffer | Northeast Ohio Media Group at Cleveland.com. It includes a link to the opinion and begins:
The court's 4-3 decision said the police department at Otterbein University near Columbus is a public office because its personnel are state-certified police officers.
"Here, the mere fact that Otterbein is a private institution does not preclude its police department from being a public office," the court said in an unsigned majority opinion.
The case is similar to one in Indiana, in which ESPN this year sued the University of Notre Dame for refusing to release campus police records requested by the Bristol, Conn.-based sports network. Notre Dame officials maintain that, because it's a private university, Notre Dame Security Police records are not subject to Indiana's public records law.
A St. Joseph Superior Court judge last month ruled in Notre Dame's favor. ESPN on Wednesday filed a notice with the Indiana Court of Appeals that it will appeal the ruling.
COLUMBUS, Ohio -- Documents kept by an Ohio private university's police department should be available to the public, the state's high court said in decision Thursday that could open up police records at many private universities across the state.
Otterbein University was ordered to hand over police documents to a campus publication, because the university's police department was established by state law and performs a key action of the government, the Ohio Supreme Court ruled in a 4-3 decision.
The case, Schiffbauer v. Banaszak, was brought by Anna Schiffbauer, editor of Otterbein360.com. Schiffbauer sued campus police chief Larry Banaszak after he denied to release police reports and other documents, claiming that since the university and the police department were private entities, its records are not subject to Ohio's Public Records Act.
Ind. Courts - Updated: Whether SCOTUS will grant cert in Manzano v. Indiana likely to be decided tomorrow [Updated]
[Updated at 3:43 PM] Still not action, one way or the other, per this SCOTUSblog post this afternoon: "Even with the two-week intermission since the last Conference, the Court didn’t clear out its lingering relists this week."
Ind. Decisions - Court of Appeals issues 0 opinion(s) today (and 2 NFP memorandum decisions)
For publication opinions today (0):
NFP civil decisions today (2):
NFP criminal decisions today (0):
Ind. Decisions - Supreme Court dismisses now moot certified question
On July 7, 2014, the ILB posted that the Supreme Court had accepted a certified question from the federal district court for the ND Indiana, in the case of Robertson v. Medical Assurance Co., Inc. n/k/a Proassurance Indemnity Co., Inc.
Today the Court has posted an order, filed May 19th:
The district court tendered its certified question on June 6, 2014.
On May 12, 2015, the District Court entered an order dismissing the underlying federal action with prejudice, based on the parties' stipulation of dismissal, and directing its clerk to notify us that the certified question “has been rendered moot by this dismissal.”
Being duly advised, the Court now DISMISSES this proceeding as moot.
Ind. Gov't. - "Indiana nursing home developer seeks to skirt Wisconsin's nursing home limits"
A lengthy, interesting story this morning in the Milwaukee Journal Sentinel, reported by Kathleen Gallagher, begins:
An Indiana nursing home company that was tied to a legislative ethics scandal in that state last year says it wants to build more than two dozen facilities in Wisconsin, a proposal that would require it to bypass a decades-old cap on nursing home beds here.
Critics worry that an amendment accommodating the proposal could be slipped into Wisconsin's budget bill on Thursday, which would allow it to avoid the public scrutiny given to ordinary legislation.
Wednesday, May 20, 2015
Ind. Courts - "Newburgh attorney pleads guilty to impersonating public servant"
Mark Wilson of the Evansville Courier & Journal reports today [ILB emphasis]:
PRINCETON, Ind. - A Newburgh attorney who has pleaded guilty to impersonating a public servant could have the charge dismissed if he successfully completes probation.
Brian J. Oberst, 39, was accused of showing a Vanderburgh County Prosecutor’s Office badge to a deputy and claiming to still be with the office during a January traffic stop in Gibson County. He was charged with the crime as a level 6 felony.
Oberst maintains a law practice in Evansville. He has not worked as a prosecuting attorney since 2009.
He appeared in Gibson Circuit Court on May 15 and pleaded guilty to the charge as a class A misdemeanor as part of a plea agreement.
Judge Jeffrey Meade accepted the plea and ordered Oberst to participate in six months of probation in the county’s first-time offender program. The program allows first-time offenders a chance to have their cases dismissed if they successfully complete probation requirements. If Oberst successfully completes probation, no conviction would be entered.
“According to my understanding, the (Indiana Supreme Court) Disciplinary Commission does not take formal action against an attorney if a criminal charge is not recorded,” said attorney Douglas Walton, who represents Oberst. * * *
A second felony charge of impersonating a public servant is still pending in Warrick County for what officials say was a similar incident there two weeks after Oberst’s Gibson County traffic stop. He is next scheduled to appear in court there at 9 a.m. June 15.
Ind. Courts - Whether SCOTUS will grant cert in Manzano v. Indiana likely to be decided tomorrow
On April 10, 2015, SCOTUSblog named the petition for cert now pending in Manzano v. Indiana as its "Petition of the Day." A look today at the SCOTUSblog case page shows that the petition appears to be inching closer to a grant, or at least a decision one way or another, perhaps at tomorrow's SCOTUS conference.
Ind. Courts - "Bond sought for suspect in fatal shooting"
That is the headline to this story today by Mark Wilson of the Evansville Courier & Press, who reports:
EVANSVILLE - Just four days after two brothers turned themselves in to face charges in a fatal Evansville shooting, the Indiana Court of Appeals made a ruling that could influence the case here.The May 12th opinion in Satterfield is available here.
A defense attorney on Wednesday argued that bail should be set for Darius Suggs, one of the brothers charged with murder in the shooting — something not normally granted in Indiana murder cases.
However, the appeals court ruled in an Indianapolis case that a judge erred in not considering all the evidence in a bail hearing for a murder suspect, and that the right to bail "is founded on a presumption of individual innocence."
Darius Suggs, 29, and Robert Suggs, 27, are charged in the death of 28-year-old Chavar "Nupin" Snider, who was shot in the head on South Morton Avenue on May 6. The brothers turned themselves in after a warrant was issued for their arrests on May 8.
"No witnesses said they saw him fire a weapon or that he had a weapon, if we are basing this just off probable cause," said John Brinson, lawyer for Darius Suggs.
Vanderburgh Superior Court Judge Robert Pigman took the arguments under advisement. * * *
Brinson cited the May 12 Indiana Court of Appeals ruling which overturned a Marion County judge's decision not to set bail for James Satterfield because the judge did not consider evidence of self-defense.
The appeals court ruling cited Indiana Constitution wording which says: "Murder or treason shall not be bailable, when the proof is evident, or the presumption strong."
"Thus, the denial of the right to award bail where the proof of guilt is not evident or the presumption of guilt is not strong would be a deprivation of liberty without due process of law, in violation of the Constitution, which would — rightly — call for prompt corrective action," according to the appeals ruling.
The nine-page affidavit mentioned a feud between Robert Suggs and Snider several times but did not specify what the exact issue was between the two men. However, police interviewed several people during the investigation who said the victim and one of the suspects were in an ongoing feud over their rap music.
The affidavit also was unclear on who investigators believed was involved in the gunfire. Witnesses told investigators that they believed several shots were fired during the incident. However, Snider was only shot once — in the back of the head — according to the affidavit.
Ind. Gov't. - Plans for hog CAFO in Porter County withdrawn
"Porter County residential, agriculture interests clash over proposed pig facility" was the heading of this April 13th ILB post about, to quote the NWI Times, "a request for Porter County to rezone 40 acres in Morgan Township to allow for a confined feeding operation designed to raise 5,600 pigs at a time."
The Times' Matthew Stefanski reported May 13th on a meeting to review a rezoning proposal to allow the CAFO. The long story includes photos and maps. Some quotes:
The proposal for the concentrated animal feeding operation, which will be owned by Robert Sands at 181 S. Smoke Road, has generated controversy after residents raised concerns about its potential odor, increased traffic and decreased values for nearby properties.On May 18th the same reporter wrote:
About 50 people attended the meeting, which was not a public hearing and did not offer the opportunity for public comment.
Porter County Plan Commission Executive Director Bob Thompson said the meeting was simply a technical review of the proposal before it goes to the Porter County Plan Commission. Owners of the CAFO are seeking to rezone 40 acres from general agriculture to a high impact district, which would have to be approved by the Plan Commission.
The CAFO proposal calls for two 101-by-10-by-261-feet buildings that will house about 2,800 hogs per building. Pigs will be brought into the buildings when they weigh about 15 pounds, said Mike Veenhuizen of Livestock Engineering Solutions of Greenwood, Ind., who represented Sands at the meeting. They will stay at the CAFO until they weigh about 280 pounds, which takes about six months.
The buildings will house self-contained storage areas to keep manure, where it will be stored for about one year. Veenhuizen said the storage areas will be able to house about seven feet and four inches of manure in an eight foot tank. Veenhuizen asserted Sands would be able to manage the appropriate amount of nutrients in manure, by testing the manure at least once a year in accordance with Indiana Department of Environmental Management requirements.
Committee members voiced their concerns regarding potential odors in the area. Veenhuizen referred to a field test model from Purdue, and said the odors would be 99 percent contained within a half-mile of the facility.
If the proposal is approved, water and sewer would need to be provided to the CAFO through local utilities, due to high impact redistricting. In addition, committee members said Sands would have to comply with a Porter County ordinance that prohibits any discharge other than storm water into water drains.
Porter County Highway Superintendent David James voiced concerns about transportation to the farm on Ind. 8 near the proposed location, which currently doesn't accomodate regular semi-truck traffic. Semis will be used to transport livestock every six months when hogs are shipped out and new shipments are brought in. Trucks will also regularly transport feeding supplies to the facility.
Soil and Water Conservation District engineer Harvey Nix raised concerns about where the remains of dead hogs will be placed. Veenhuizen said there is no current plan regarding a location for dead hogs. He said due to the size of the facility, on-site burials would not be possible. Veenhuizen suggested incineration and composting would be possible options.
The family proposing a hog farm in Morgan Township has decided not to pursue the project after facing wide opposition from local residents.The same day Amy Lavalley reported in the Gary Post-Tribune in a legthy story:
Robert Sands and family announced their plans to withdraw a rezoning proposal for the concentrated animal feeding operation at a press conference on Monday at the family’s farm.
Opponents of an industrial hog farm proposed for Morgan Township called their efforts a success Monday after they learned that the proposal for the 5,600-hog operation has been withdrawn.See also Post-Tribune columnist Jerry Davich's May 19th article, "Grass-roots activism flexes more muscle, less pork."
Robert Sands announced Monday afternoon on his property that he had withdrawn a zoning change petition that would have accommodated the proposed facility. His son, Brandon, an agricultural student at Ivy Tech Community College in West Lafayette, had pitched the proposal to his father as a way of growing the family farm at 181 S. Smoke Road. * * *
The proposal, which required a land rezoning from general agriculture to high-impact use because it needs a permit from the Indiana Department of Environmental Management, was scheduled to go before the Porter County Plan Commission for a May 27 hearing. That meeting has been canceled. * * *
On Friday, Mayor Jon Costas filed a letter against the farm with the Porter County Plan Commission. City staff members recently toured Belstra Milling's operation at Fair Oaks.
"I'm glad to hear the petition was withdrawn because it was simply not a good location for this operation," Costas said Monday, adding other places are better suited for industrial farms. "These operations are necessary and everyone likes bacon, but to have such an intense operation that close to a growing city is not good planning."
A plan would not have been the first CAFO in Porter County. One that has 4,000 hogs operates in Kouts.
Ind. Decisions - "Neither party’s appendix is particularly helpful to this court"
A reader points to a footnote in a NFP decision today, In re: The Adoption of A.S.B., S.B. v. K.E. (mem. dec.) that includes useful information of broader interest that might otherwise be overlooked. Footnote 1 on p. 2 [which the ILB has paragraphed]:
Neither party’s appendix is particularly helpful to this court.
S.B.’s appendix consists of the Chronological Case Summary (“CCS”), the appealed order, and excerpts from the transcript and selected exhibits from the contested adoption hearing.
K.E.’s appendix consists of excerpts from the transcript and additional exhibits from the contested adoption hearing.
Indiana Appellate Rule 50(F) provides: “Because the Transcript is transmitted to the Court on Appeal pursuant to Rule 12(B), parties should not reproduce any portion of the Transcript in the Appendix.” The “Transcript” is defined to include any exhibits associated with the proceedings. Ind. Appellate Rule 2(K).
In essence, then, two appendices have provided only the CCS and the appealed order.
In addition, we may not have the entire CCS. S.B. notes that the Noble County Clerk provided a CCS with “a sideways orientation” and was unwilling to provide “a correctly oriented” copy. Appellant’s Appendix, Table of Contents n.1. However, it does not appear that the CCS was printed in landscape orientation but rather, the bottom of each page may be cut off. And if part of each page is not actually missing, it is certainly obscured by the binding.
Ind. Courts - So ... Where did the rollercoaster come from?
The ILB sent an inquiry to Martin DeAgostino, the Communications Director for the Indiana Court of Appeals, re the photo of the rollercoaster that appears in the archived videocast of the oral argument yesterday in the challenge to the Indianapolis smoking ban. The response:
The image you’re asking about is a stock image that is preloaded into our recording system. The image inadvertently appeared during the webcast when the system operator made a stray keystroke. It in no way involves any question of system integrity or “hacked” access to the webcast or the Court’s webcasting system.Good to know!
Ind. Decisions - Court of Appeals issues 3 opinion(s) today (and 8 NFP memorandum decisions)
For publication opinions today (3):
In Erica L. Jackson v. State of Indiana , an 11-page opinion, Judge Bailey writes:
Jackson did not deny that the acts charged by the State were committed. She claimed that another individual was the perpetrator. As there was no controversy regarding whether a lesser offense was committed while a greater offense was not, the trial court did not abuse its discretion by refusing the instruction. * * *In Tiras D. Johnson v. State of Indiana , a 9-page opinion, Judge Mathias writes:
Jackson claims that the trial court abused its discretion by admitting State’s Exhibits 5 and 6 and related testimony because Jackson’s photograph was a higher quality close-up causing her features to be more distinguishable than those of the women in jail intake photographs. * * * Here, our examination of the photo array does not lead to the conclusion that the distinction identified by Jackson is critical such as to likely lead to misidentification. Each of the photographs is of sufficient clarity to allow an examination of facial features. * * *
Jackson did not establish that the trial court abused its discretion by refusing her proffered instruction, nor did Jackson establish that the trial court abused its discretion in the admission of evidence.
Tiras Johnson (“Johnson”) appeals the Madison Circuit Court’s revocation of his probation and argues that the trial court abused its discretion when it denied his motion to suppress evidence seized during a warrantless search of his friend’s residence. * * *In Michael Whittaker v. State of Indiana, a 7-page opinion, Sr. Judge Darden writes:
For all of these reasons, we conclude that the trial court acted within its discretion when it admitted evidence that the officers discovered a large quantity of marijuana in Johnson’s backpack when they executed the search warrant. Therefore, we affirm the trial court’s order denying Johnson’s motion to suppress and finding that he violated his probation.
Michael Whittaker appeals his sentence for his conviction of theft, a Class D felony, Indiana Code section 35-43-4-2 (2009), and his adjudication as an habitual offender, Indiana Code section 35-50-2-8 (2005). We affirm.NFP civil decisions today (1):
Whittaker presents one issue for our review, which we restate as: whether the savings clause of the 2014 criminal code revision violates the Equal Privileges and Immunities Clause of the Indiana Constitution. * * *
Specifically, he argues that the savings clause improperly prohibits the ameliorative sentencing statutes of the new criminal code to apply to certain offenders, including himself. * * *
Whittaker argues that the savings clause unconstitutionally created two classes of offenders: those who committed their offenses before the new criminal code went into effect on July 1, 2014 but were sentenced after that date and those who committed their offenses after the July 1, 2014 effective date. He maintains that the date of the offense is not reasonably related to any inherent characteristic that distinguishes the two classes. * * *
Whittaker, in an act of free will, selected his offense date as August 31, 2013, thereby choosing to commit theft as a Class D felony subject to a sentence of six months to three years. See Ind. Code §§ 35-43-4-2(a), 35-50-2-7(a). By doing so, he differentiated himself from those offenders who committed the offense of theft after July 1, 2014. Thus, we find that Whittaker is not similarly situated to those defendants who committed offenses after July 1, 2014, and, therefore, he has no viable equal privileges and immunities claim.
NFP criminal decisions today (7):
Ind. Decisions - Supreme Court decides two today
In Kevin Charles Isom v. State of Indiana, a 5-0, 30-page opinion, Justice Rucker writes:
After a trial by jury Kevin Charles Isom was found guilty of three counts of murder for which the jury recommended and the trial court imposed a death sentence. In this direct appeal Isom raises the following rephrased issues: (1) did the trial court err by denying Isom’s for-cause challenges to certain prospective jurors; (2) did the trial court err in denying Isom’s motions for mistrial; (3) did the trial court abuse its discretion in instructing the jury; (4) did the trial court err by refusing to allow a witness to answer a question posed by a juror; (5) did the State commit prosecutorial misconduct during closing arguments in the penalty phase of trial; (6) is revision of Isom’s death sentence warranted; and (7) did the trial court issue an illegal or void sentence. We affirm Isom’s conviction and death sentence, but remand with instructions to issue a new sentencing order consistent with this opinion. * * *In Roy Bell v. State of Indiana, an 8-page, 5-0 opinion, Justice Rucker writes:
A trial court cannot impose consecutive sentences in the absence of express statutory authority. Mask v. State * * *
Accordingly, “the death penalty is not ‘a term of imprisonment’” within the meaning of I.C. § 35-50-1-2. Id. In consequence the trial court here exceeded its statutory authority by ordering Isom’s death sentences to be served consecutively.
We affirm Isom’s convictions and remand this cause to the trial court with instructions to issue a new sentencing order consistent with this opinion.
Twenty-four-year-old Roy E. Bell was charged in a multi-count information with murder, felony murder, burglary, robbery, and criminal confinement. The State also sought life imprisonment without parole. After a bench trial Bell was found guilty as charged, and the trial court sentenced him to life imprisonment for the murder conviction. In addition the trial court sentenced Bell to a term of years for the burglary and robbery convictions. Bell now appeals challenging the sufficiency of the evidence supporting his murder conviction. We affirm the judgment of the trial court.
Ind. Decisions - 7th Circuit reaffirms its Notre Dame ACA opinion, notwithstanding the SCOTUS ruling in Hobby Lobby
On March 9th, the SCOTUS sent Notre Dame v. Sebelius (now Burwell) back to the 7th Circuit. As Lawrence Hurley reported on March 9th for Reuters:
The Supreme Court on Monday threw out an appeals court decision that went against the University of Notre Dame over its religious objections to the Obamacare health law’s contraception requirement.Late yesterday the 7th Circuit decided in a 50-page, 2-1 opinion by Judge Posner, University of Notre Dame v.
The justices asked the 7th U.S. Circuit Court of Appeals to reconsider its decision in favor of the Obama administration in light of the June 2014 Supreme Court ruling that allowed closely held corporations to seek exemptions from the provision.
The court’s action means the February 2014 appeals court ruling that denied the South Bend, Indiana-based Roman Catholic university an injunction against the requirement has been wiped out. * * *
The Notre Dame case was the only appeals court decision on that issue that pre-dated the Hobby Lobby ruling.
Sylvia Mathews Burwell, joined by Judge Hamilton (beginning on p. 26), with Judge Flaum dissenting (beginning on p. 41), to again affirm the trial court's denial of preliminary relief.
Tuesday, May 19, 2015
Ind. Decisions - Supreme Court issues a second opinion today
In Cornelius Hines v. State of Indiana, a 5-0, 14-page opinion, Justice Dickson writes:
Following a jury trial, the defendant Cornelius Hines was convicted of Criminal Confine-ment and Battery. He has appealed claiming violations of both Indiana's constitutional and com-mon law proscriptions against double jeopardy and seeking review of sentence inappropriate-ness. We find that the defendant's two convictions do not violate the common law but do run afoul of the Double Jeopardy Clause of the Indiana Constitution. * * *
The continuous crime doctrine does not apply to the facts of this case, but the circum-stances of the trial establish a violation of the Indiana Constitution's Double Jeopardy Clause un-der the actual evidence test. We vacate the defendant's conviction for Battery as a Class D fel-ony and its concurrent three year sentence but affirm his conviction and eight year sentence for Criminal Confinement as a Class C felony. We decline to grant relief under Appellate Rule 7(B) for sentence inappropriateness. This cause is remanded to the trial court for further proceedings consistent with this opinion.
Rush, C.J., and Rucker and David, JJ., concur.
Massa, J., concurs in result.
Environment - "Cases of avian influenza have spread through 15 states, including Indiana"
Ind. Courts - More on "Appeals court hears challenge to Indianapolis smoking ban"
A reader watching the oral argument the ILB linked to this AM, in the Indianapolis smoking ban challenge, points out that at about 4:24 into the argument, the video cuts to a shot of a rollercoaster while the judges' voices continue in the background. The ILB was able to take a screenshot:
Ind. Decisions - Court of Appeals issues 1 opinion(s) today (and 6 NFP memorandum decisions)
For publication opinions today (1):
In City of Fort Wayne v. Katie Parrish, an 11-page opinion, Judge Pyle writs:
Appellant/Defendant, City of Fort Wayne (“the City”), files an interlocutory appeal of the trial court’s grant of Appellee/Plaintiff, Katie Parrish’s (“Parrish”), motion in limine seeking to exclude evidence from her personal injury/tort claim trial regarding the fact that she was not wearing a seatbelt when a car in which she was a passenger was involved in an automobile accident.NFP civil decisions today (3):
On appeal, the City argues that the trial court abused its discretion when it granted Parrish’s motion because evidence that she was not wearing a seatbelt when she was involved in an accident involving a Fort Wayne police officer was admissible to prove that she was guilty of contributory negligence for her injuries. In support of this argument, the City claims that Parrish was negligent per se for violating Indiana’s mandatory passenger restraint act (“Seatbelt Act”). In response, Parrish argues that a violation of the Seatbelt Act cannot be used as evidence to prove fault under a theory of contributory negligence.
Because we conclude that the Indiana Legislature did not clearly intend to deviate from common law when it enacted the Seatbelt Act, we agree that a violation of the Seatbelt Act may not be used to prove contributory negligence, and therefore the trial court did not abuse its discretion when it granted Parrish’s motion in limine.
NFP criminal decisions today (3):
Ind. Decisions - Supreme Court suspends former Lake Co. Clerk for 4 years, without automatic reinstatement
In In the Matter of: Thomas R. Philpot, a 3-page, 3-2 per curiam opinion, the Court writes:
We find that Respondent, Thomas Philpot, engaged in attorney misconduct. For this misconduct, we conclude that Respondent should be suspended from the practice of law in this state for at least four years without automatic reinstatement. * * *ILB: The ILB has many earlier posts on Mr. Philpot's legal troubles.
In September 2011, Respondent was charged in the United States District Court for the Northern District of Indiana with three counts of mail fraud and two counts of theft from a federally-funded program, all felonies. In August 2012, Respondent was convicted by a jury on all counts. After post-trial proceedings, Respondent was adjudicated guilty on the jury’s verdicts as to two counts of mail fraud and one count of theft. Respondent’s convictions were affirmed on appeal. U.S. v. Philpot, 733 F.3d 734 (7th Cir. 2013), reh’g and reh’g en banc denied. Respondent’s convictions resulted from his use of federal funds to pay himself impermissible bonuses in connection with work he performed in his capacity as the elected Clerk of Lake County, Indiana. ** *
All Justices concur except Rush, C.J., and Dickson, J., who dissent, believing Respondent should be disbarred.
Ind. Courts - "Task force aims to unclog tax court backlog"
Dan Carden reports in the NWI Times:
INDIANAPOLIS | A state appellate court specializing in difficult tax issues is going under the microscope in hopes of discovering the causes of a growing case backlog.ILB: Although the story also notes:
The Indiana Supreme Court last week established a nine-member advisory task force to study over the next year the workload, resources, staffing, performance and operations of the one-judge Indiana Tax Court.
Chief Justice Loretta Rush said it will be the first comprehensive review of the specialty court in its nearly 30 years of operation, and is needed now because the tax court appears to be concluding fewer cases than in the past.
For example, under Judge Thomas Fisher, a former Jasper County prosecuting attorney who moved to senior judge status in 2011, the tax court typically resolved 70 to 100 cases a year and carried over about 130 into the next year, except in his final year when just 91 cases remained.
Productivity dropped significantly after tax court Judge Martha Blood Wentworth was appointed by Republican Gov. Mitch Daniels to replace Fisher four years ago. She was retained by Hoosier voters in 2014 for a 10-year term.
In 2011, Wentworth's first year on the bench, the tax court ruled in just 48 cases, leaving 140 remaining at the end of the year. The number of pending cases grew to 175 in 2012, 193 in 2013 and totaled 191 on Dec. 31, 2014.
Tax court cases tend to be among the most complicated in the Indiana judiciary, often involving corporate tax disputes over multiple tax years with significant potential refund ramifications for the state and local governments.This is often not the case. The area is specialized, but the majority of the cases are straighforward.
For more, see this ILB post from May 15th and the links to background at the end of that post.
Courts - "The New Orleans Advocate intervenes in federal litigation, seeking transparency"
From the May 19th story in The Advocate, reported by Gordon Russell:
The matter is before the 5th U.S. Circuit Court of Appeals.
The newspaper’s filing states that the sealed matter before the appellate court “may concern” a petition for writ of mandamus originating from the government’s case against Frank Fradella, a convicted businessman who bribed [former New Orleans Mayor Ray] Nagin and then served as one of the lead witnesses against the former mayor in his 2014 trial.
But determining such basic information is impossible because the entirety of the case is under seal at the appellate level. On the Public Access to Court Electronic Records system, or PACER, the case is listed simply as “In re: Sealed Petitioner” — meaning it’s impossible to know even the names of the parties to the dispute. * * *
The newspaper’s filing cites U.S. v. Moussaoui, in which members of the media were permitted by a federal appeals court to view various aspects of the government’s case against an accused al-Qaida operative that had initially been kept secret.
Ind. Courts - "Appeals court hears challenge to Indianapolis smoking ban"
An Indiana Court of Appeals panel heard oral argument yesterday in the case of Whistle Stop Inn et al v. City of Indianapolis et al. You may watch the videocast here.
Jill Disis reports today in the Indianapolis Star:
The owners of two Indianapolis bars believe they've found an argument that could overturn the city's 2012 smoking ban once and for all — and it starts with a single question:What is different now? The story continues:
Why should the city be allowed to permit smoking in its sole off-track betting facility, while simultaneously prohibiting it in bars that don't offer gambling?
It shouldn't, says attorney Mark Small, who argued Monday before the Indiana Court of Appeals on behalf of the Whistle Stop Inn and the Thirsty Turtle. In fact, Small said, that gambling exemption might be unconstitutional.
"What we have here is simply unequal treatment in Indiana," he said.
The legal challenge heard before the appellate court is the latest attempt to reverse the city's smoking ban, which went into effect in June 2012. A Marion Superior Court judge earlier granted summary judgment to the city in the case.
Small also was involved in a previous case heard before the 7th U.S. Circuit Court of Appeals in November 2013. That court upheld the ban.
Small's case hinged in part on a ruling made by the Indiana Supreme Court in February 2014, when it struck down an Evansville ordinance that extended a city smoking ban to bars and restaurants but exempted the Tropicana casino.Here is a link to the Feb. 11, 2014 3-2 Supreme Court opinion in two combined cases challenging the Evansville smoking ordinance amendment.
In that case, the court rejected the ordinance, ruling 3-2 that the ban violated the Equal Privileges and Immunity Clause of the Indiana Constitution, which says the General Assembly "shall not grant to any citizen, or class of citizens, privileges or immunities, which, upon the same terms, shall not equally belong to all citizens." If the state wants to carve out an exemption, the court said, it needs to show that there is an "inherent difference" in the item or organization for which that exemption is being made.
The exemption made for the Winner's Circle, Small claims, is no different from the one for the Tropicana casino.
"What is there about betting on horses and drinking that inherently involves smoking?" he said. "That's not an inherent part of the activity."
Mark Crandley, the attorney representing Winner's Circle owner Hoosier Park LLC, argued that the Evansville case is not comparable to the latest challenge.
"In this very unique circumstance, it is different than riverboat gambling," Crandley said, pointing to the differences in how off-track betting facilities and riverboat casinos are regulated. "The General Assembly chose to include in the Horse Racing Commission statute a provision requiring review of the smoke handling and other smoking issues. There is nothing like that in the riverboat casino statute."
Adriana Katzen, an attorney representing the city of Indianapolis, backed that argument. She said the regulations put in place by the Horse Racing Commission require those types of gambling facilities to take into account the "public welfare" and "public interest," including a requirement for air ventilation.
Monday, May 18, 2015
Ind. Decisions - Supreme Court denies another transfer petition; revises 5/15/15 transfer list.
In a 4-page published order filed May 15th but just posted this afternoon, the Supreme Court has denied transfer, after oral argument, in the case Thomson Inc. n/k/a Technicolor USA. Inc. v. Insurance Com. The 6/19/14 Court of Appeals opinion is to be certified as final.
The vote is 3-2:
Dickson, David, and Massa, JJ., concur.This order was not included on the transfer list posted this morning, but it does appear as the next-to-last entry in a list revised and reposted this afternoon.
Rush, C.J., dissents to the denial of transfer with a separate opinion, in which Rucker, J., joins. [It begins]
I respectfully dissent from the denial of transfer because, like Chief Judge Vaidik, I see no material difference between the policy language in this case and the similar language we interpreted in Allstate Ins. Co. v. Dana Corp., 759 N.E.2d 1049 (Ind. 2001). Simply changing “all sums” to “those sums,” and placing “during the policy period” in the insuring clause rather than in the definition of “occurrence,” does not unambiguously permit Thomson’s various insurers to prorate coverage between themselves—and any ambiguity in that regard must be strictly construed against the insurer. There is also no principled method to calculate such a proration—only guesswork under the guise of “factfinding.” We should not burden trial courts with that task based on policy language that is ambiguous at best.
Ind. Law - Summer Training Camp for Litigators
The Litigation Section of the ISBA is holding the Summer Training Camp (6 hrs. CLE/1.5 hrs. Ethics) on June 26th in the NCAA Hall of Champions. Details, including the agenda, are available here.
Courts - SCOTUS rules: "Maryland has been illegally double-taxing people who earn income in other states"
Our existing dormant Commerce Clause cases all but dictate the result reached in this case by Maryland’s highest court. Three cases involving the taxation of the income of domestic corporations are particularly instructive.An AP story reports:
In J. D. Adams Mfg. Co. v. Storen, 304 U. S. 307 (1938), Indiana taxed the income of every Indiana resident (including individuals) and the income that every nonresident derived from sources within Indiana. Id., at 308. The State levied the tax on income earned by the plaintiff Indiana corporation on sales made out of the State. Id., at 309. Holding that this scheme violated the dormant Commerce Clause, we explained that the “vice of the statute” was that it taxed, “without apportionment, receipts derived from activities in interstate commerce.” Id., at 311. If these receipts were also taxed by the States in which the sales occurred, we warned, interstate commerce would be subjected “to the risk of a double tax burden to which intrastate commerce is not exposed, and which the commerce clause forbids.” Ibid.
The 5-4 ruling means the loss of hundreds of millions of dollars in revenue for Maryland and affects similar laws in other states, including New York, Indiana, Pennsylvania and Ohio.
Ind. Decisions - Court of Appeals issues 1 opinion(s) today (and 2 NFP memorandum decisions)
For publication opinions today (1):
In Gary P. Byers v. Robert E. Moredock and Rhoda S. Moredock, a 14-page opinion, Judge Brown concludes:
In sum, the provisions of the Ordinance cited by Byers were inapplicable to the Moredocks and did not impose any duty on them to confine or restrain a dog in the care of the tenant or residents of the Property; the Moredocks were not the owners or keepers of the dog that struck Byers’s motorcycle and had no duty to confine or control the dog on that basis; and the Moredocks as the owners of the Property and landlords did not have a duty to ensure proper or adequate confinement or control of the dog, or to monitor the tenant or residents of the Property to ensure they properly or adequately confined or controlled the dog. Accordingly, summary judgment in favor of the Moredocks and against Byers was proper.NFP civil decisions today (1):
For the foregoing reasons, we affirm the trial court’s entry of summary judgment in favor of the Moredocks and against Byers.
NFP criminal decisions today (1):