Friday, September 03, 2010
Ind. Courts - The "capitalization argument" and the "Bid to pull judge from ballot "
Updating this ILB entry from yesterday and this long list of earlier ILB entries on Allen County Judge Scheibenberger and the effort to take him off of this year's ballot, I'd like to comment, NOT on the question of the judge's qualifications, but rather on the argument that his name should not be on the ballot because of a capitalization issue.
The argument is set out in full in this ILB entry from August 5th. To summarize, the argument is that because IC 33-33-2-10 provides:
(a) To qualify as a candidate for Allen superior court judge, a person: * * * (3) may not previously have had any disciplinary sanction imposed upon the person by the supreme court disciplinary commission of Indiana or any similar body in another state;the phrase "supreme court disciplinary commission of Indiana" means not only the "supreme court disciplinary commission," but "the commission on judicial qualifications."
Why? Because, the argument goes, "supreme court disciplinary commission" is not capitalized.
Really.
Here is the way one of the proponents of the argument put it in a letter that was in the Fort Wayne News-Sentinel on about August 16th. Unfortunately, the paper's link to the letter is no longer is operative:
Does the statute refer to the Supreme Court Disciplinary Committee only, or does it refer to all disciplinary committee embodied by the State Supreme Court?Here is the problem with the "captialization" argument. NOTHING in the Ind Code is in caps unless it is "Indiana" or "Lake County", or the like. See the capitalization rule on pp. 14-16 of the Form and Style Manual for Legislative Measures of the Indiana General Assembly, available here.Perhaps the statute may be of some assistance. If someone wants to refer to a specific thing, such as Pearl Buck’s book “The Good Earth,” they capitalize the letters in the name, such as, “I truly enjoy ‘The Good Earth.’ ” If they want to refer to something in general, they use lower case, such as, “I truly enjoy the good earth.”
So which does the statute use, upper or lower case? Unfortunately for the Scheibenites, it explicitly uses lower case.
Hence, it appears to us that the statute includes the Commission on Judicial Qualifications, which metes out discipline on behalf of the Supreme Court.
Specifically, from pp. 15-16 of the Style Manual:
Do not capitalize the following: * * * (f) Official titles of state, county, or municipal officers, agencies, commissions, committees, or funds.Examples: clerk of the circuit court; board of county commissioners; public employees'
retirement fund; commission on the aging and aged; legislative services agency; state general fund
Posted by Marcia Oddi on September 3, 2010 02:46 PM
Posted to Indiana Courts
Ind. Decisions - 7th Circuit decides suit challenging to Wisconsin’s gasoline pricing regulations
The case is Flying J v. Wis. AG. Here is AP coverage by Ryan J. Foley that begins:
MADISON, Wis. (AP) -- A federal appeals court on Friday reinstated Wisconsin's 71-year-old minimum markup law on gasoline, a decision that could limit competition among retailers and drive up gas prices.Siding with an association representing small gas station owners, the 7th Circuit Court of Appeals ruled the law that requires retailers to sell gas above cost does not encourage illegal price-fixing.
The court lifted an order imposed last year that put enforcement of the law on hold after U.S. District Judge Rudolph Randa concluded it violated federal antitrust law and increased the price at the pump.
Posted by Marcia Oddi on September 3, 2010 01:54 PM
Posted to Ind. (7th Cir.) Decisions
Ind. Decisions - Supreme Court issues one disciplinary opinion today
In the Matter of Anonymous is a 5-page, per curiam opinion. Some quotes:
The Court approves the agreement and finds that Respondent engaged in attorney misconduct by assisting in the unauthorized practice of law in this state. For this misconduct, we find that Respondent should receive a private reprimand. * * *A Kentucky resident who was injured in a fall at a restaurant in Indiana sought legal assistance from a Kentucky lawyer, John Redelberger. Respondent agreed to serve as local Indiana counsel. Redelberger did not seek temporary admission to practice law in Indiana. Nevertheless, Redelberger and Respondent signed and filed an appearance for the client in an action filed in an Indiana trial court. Without Respondent, Redelberger signed and served answers to interrogatories and took depositions of witnesses in Indiana. After Redelberger appeared in court for the client, the judge informed Respondent that Redelberger was not admitted to practice in Indiana. Respondent told Redelberger that he must seek temporary admission and sent him a copy of the applicable rule. Neither Respondent nor Redelberger, however, followed through in obtaining temporary admission for Redelberger. * * *
The participation of Indiana co-counsel in the temporary admission process is of vital importance to this Court's ability to supervise out-of-state attorneys practicing in this state. This is no minor or perfunctory duty. Not all attorneys seeking temporary admission will be granted the privilege of practicing in Indiana. See Matter of Fieger, 887 N.E.2d 87 (Ind. 2008) (two-year bar on applying for temporary admission imposed for misrepresentations in petition for temporary admission). * * *
The failure of out-of-state attorneys and their Indiana co-counsel to comply with the rule governing temporary admission is neither trivial nor rare. Thus far in 2010, the Clerk has issued over 600 notices of automatic exclusion from practice, and this Court has entered orders granting relief from automatic exclusion to over 140 out-of-state attorneys. The need for this would be nearly eliminated if all Indiana co-counsel complied with their ethical duty to ensure that attorneys granted temporary admission in Indiana comply with Admission and Discipline Rule 3(2).
The Court will approve the parties' suggestion that Respondent receive a private reprimand under the circumstances of this case. However, Indiana attorneys serving as local counsel for out-of-state attorneys are hereby advised of the importance of their duty to ensure complete and timely compliance with all the requirements of Admission and Discipline Rule 3(2). Indiana attorneys who neglect that duty in future cases may be subject to more stringent discipline, and out-of-state attorneys who fail to comply with this rule may be sanctioned for the unauthorized practice of law in this state.
Posted by Marcia Oddi on September 3, 2010 11:07 AM
Posted to Ind. Sup.Ct. Decisions
Ind. Decisions - Court of Appeals issues 0 today (and 3 NFP)
For publication opinions today (0):
NFP civil opinions today (2):
In the Matter of the Unsupervised Estate of Judith E. Phillips v. Rainer Assmann (NFP)
Daniel E. Hoagland, et al. v. Dorothy H. Mosier, et al. (NFP)
NFP criminal opinions today (1):
Ahmed Bellamy v. State of Indiana (NFP)
Posted by Marcia Oddi on September 3, 2010 10:40 AM
Posted to Ind. App.Ct. Decisions
Ind. Courts - “Three Influential Seventh Circuit Judges Debate the Usefulness of Expert Testimony to Prove Foreign Law”
Yesterday's 7th Circuit opinion in the case of Bodum USA, Inc. v. La Cafetiere, Inc. (ND Ill.) is the subject of an entry today by Prof. Eugene Volokh, who writes in the Volokh Conspiracy:
How Appealing links to this Seventh Circuit decision, which includes very interesting opinions by Judges Easterbrook, Posner, and Wood (all among the most respected federal appellate judges in the nation, and all former University of Chicago law professors). * * *The question is: How are courts to determine what foreign law is, especially when it’s in a foreign language? The Federal Rules of Civil Procedure allow courts to rely on statements by experts in foreign law. But Judges Easterbrook and Posner argue that, for the law of many prominent countries (such as the French law involved in this dispute), reliance on experts is bad practice — it’s better for judges to consult English-language translations and treatises, which will be largely relatively objective, rather than the statements of experts hired by each party. * * *
Judge Wood disagrees, arguing that judges are too likely err in interpreting foreign law, again especially when it is in a foreign language.
Posted by Marcia Oddi on September 3, 2010 10:26 AM
Posted to Ind. (7th Cir.) Decisions
Ind. Decisions - One Indiana case decided today by 7th Circuit
In Chapin v. Ford-Rohr Motors (ND Ind., Springmann), a 17-page opinion, Judge Williams writes:
Trent L. Chapin was employed by the Bob Rohrman Auto Group as a car salesman. Following his termination at one Rohrman-owned dealership, Chapin filed a complaint with the Equal Employment Opportunity Commission, alleging that the manager discriminated against white Christians in favor of Pakistani Muslims. His new employer, a second Rohrman-owned dealership, heard about this and threatened to fire Chapin unless the complaint was withdrawn. After this threat was made, Chapin left work and never returned, despite Fort-Rohr Motors, Inc.’s (“Fort-Rohr”) repeated efforts to have him return.Chapin sued both dealerships, alleging discrimination because of his race and retaliation under Title VII of the Civil Rights Act of 1964. After a jury trial, the jury returned a favorable verdict on Chapin’s retaliation claim. Fort-Rohr appeals, arguing that it was entitled to judgment as a matter of law because Chapin failed to show that Fort-Rohr actually or constructively discharged Chapin in retaliation for his complaint. We agree that Fort-Rohr was entitled to judgment as a matter of law because Chapin did not produce sufficient evidence to support an actual or constructive discharge. Therefore, we reverse the judgment of the district court.
Posted by Marcia Oddi on September 3, 2010 10:19 AM
Posted to Ind. (7th Cir.) Decisions
Ind. Courts - More on "Indianapolis Archdiocese ends priest abuse lawsuit with first cash settlement"
Updating this ILB entry from May 12, 2010, Robert King of the Indianapolis Star has another story today, reporting on Joe Doe RG's settlement of a lawsuit against the Archdiocese of Indianapolis. A quote from today's story:
Now, almost five years after filing the lawsuit that started it all, John Doe RG has reached a financial agreement with the Archdiocese of Indianapolis that compensates him for medical treatment associated with his abuse and covers the legal fees associated with his lawsuit.The May 12th Star story, involving a different "John Doe," was similar:The exact amount of the settlement wasn't disclosed, but archdiocesan attorney Jay Mercer said it was less than the $199,000 the church paid in May to settle another lawsuit associated with Monroe.
In a move unprecedented for the Roman Catholic Archdiocese of Indianapolis, the church has agreed to a cash settlement with someone who has brought a lawsuit alleging sexual abuse by a priest -- adding Indianapolis' name to the list of American dioceses to take a financial hit in the ongoing scandal.The $199,000 settlement is small compared with some of the multimillion-dollar deals reached elsewhere around the country. But the agreement with a 48-year-old Indianapolis man involves a former priest who is still the subject of 12 pending lawsuits by other alleged victims.
In this case, a plaintiff known in court papers only as John Doe CT claimed that when he was 14 then-priest Harry Monroe repeatedly abused him sexually while both were at St. Catherine Catholic Church on the city's Southside. St. Catherine merged with another parish in 1993 to form what is now Good Shepherd.
Posted by Marcia Oddi on September 3, 2010 09:44 AM
Posted to Indiana Courts
Ind. Courts - "Roanoke attorney charged with fund thefts"
Rebecca S. Green reports today in the Fort Wayne Journal Gazette in a long story that begins:
A prominent local attorney and non-profit board member has been arrested and charged with corrupt business influence and theft amid allegations he took more than $100,000 from his clients’ trust fund accounts.Arrested Thursday, Daniel E. Serban, 53, of the 10000 block of Cygnet Cove in Roanoke, is accused of failing to distribute money paid into Serban Law Office’s Trust Account to the appropriate clients or to those entitled by court order to receive it. According to court documents, the behavior continued from January 2006 until Tuesday.
Both charges are felonies, and if convicted, Serban could serve two or more years in prison.
Attorneys are required to keep escrow-type accounts where money either coming from or going to their clients will be kept. Those accounts are to be treated with extreme fiduciary care and attorneys have a strong ethical responsibility to protect that money, according to the Allen County Prosecutor’s Office.
Much of the money misappropriated, according to prosecutors, came from a civil case filed in 2003. In that case, Serban represented R. Bruce Dye in a dispute with former business partners over money.
Posted by Marcia Oddi on September 3, 2010 09:32 AM
Posted to Indiana Courts
Thursday, September 02, 2010
Ind. Courts - More on "Bid to pull judge from ballot advances" [Updated]
Updating this ILB entry from August 11, 2010, Niki Kelly of the Fort Wayne Journal Gazette reports late this afternoon:
The four-person Indiana Election Commission voted Thursday to deny a challenge against Allen Superior Judge Kenneth Scheibenberger, which means he remains on the fall ballot.More details tomorrow.
[Updated 9/3/10] Here is Kelly's updated story.
Posted by Marcia Oddi on September 2, 2010 04:16 PM
Posted to Indiana Courts
Ind. Courts - More on: Court charges for miscellaneous services and the race for the Judicial Nominating Commission
In this April 29, 2010 entry the ILB noted and commented upon the "Order governing fees charged by clerk of courts for miscellaneous services" that had been issued April 26, 2010 by the Supreme Court. ILB reader attention was directed to the $1.00/page change for copies of documents, an amount that is not acceptable in the other governmental branches. In addition, the April 29th entry continued:
Another item that caught my attention was this: $150.00 -- CD containing Roll of Attorneys database.As those of you who are attorneys are no doubt aware, the most recent annual registration mailing from the Clerk of the Courts for the first time requested attorneys' e-mail addresses in addition to the other information. I naturally wondered whether the submitted e-mail addresses would be available via the Roll of Attorneys, as addresses and phone numbers currently are.
"No", I was told, when I contacted the Clerk of the Courts on August 25. And neither would they be available on the CD containing the Roll of Attorneys database.
Seemingly re-emphasizing that point, on August 27th the Supreme Court reissued the "Order governing fees charged by clerk of courts for miscellaneous services," including this change:
$150.00 -- CD containing Roll of Attorneys database (except that the CD shall not include attorney electronic mail addresses, nor shall it contain attorney home addresses unless the home address is the only address listed for the attorney in the Roll of Attorneys)My thoughts: E-mail addresses are apparently thought to be more sensitive than telephone numbers or street addresses. My biggest issue with this is that it favors some attorneys who may choose to run for positions such as the Judicial Nominating Commission.
Creating mailing labels is simple using the Roll of Attorneys database. But sending a mailing to thousands of Indiana attorneys is costly, favoring attorneys with deep pockets or those backed by well-funded organizations. If e-mail addresses had been made available to candidates this year when more attorneys than ever seem to be interested in competing, the playing field would have been leveled.
Posted by Marcia Oddi on September 2, 2010 02:51 PM
Posted to Indiana Courts
Ind. Courts - Tax Court issues one opinion today
In 6787 Steelworkers Hall, Inc. v. John R. Scott, Assessor of Porter County, an 11-page opinion, Judge Fisher writes:
6787 Steelworkers Hall, Inc. (hereinafter, “Local 6787”) appeals the final determination of the Indiana Board of Tax Review (Indiana Board) denying its application for an educational/charitable purposes property tax exemption for the 2006 tax year (the year at issue). Local 6787’s appeal presents a single issue for this Court’s review: whether the Indiana Board’s denial of Local 6787’s exemption application is supported by substantial evidence.* * * During the year at issue, Local 6787 owned and operated a banquet facility and a union hall in Portage, Indiana (Portage Township). * * *
The evaluation of whether property is used for educational/charitable purposes is a fact-sensitive inquiry; there are no bright-line tests. See Jamestown Homes, 914 N.E.2d at 15 (citation omitted). Here, the Indiana Board’s final determination indicates that it assigned minimal weight to Local 6787’s arguments because they were not supported by substantial evidence. As the fact finder, it was well within the purview of the Indiana Board to make that determination. See French Lick Twp. Tr. Assessor v. Kimball Int’l, Inc., 865 N.E.2d 732, 739 (Ind. Tax Ct. 2007) (explaining the taxpayer bears the burden of making the Indiana Board understand its evidence).
Posted by Marcia Oddi on September 2, 2010 02:41 PM
Posted to Ind. Tax Ct. Decisions
Courts - More on "Bursting Pipes Lead to a Legal Battle "
Following up on this Feb. 12, 2010 ILB entry, JM Eagle issued a press release yesterday headed "Indiana joins California, Florida, Massachusetts and the Federal Government in Declining to Intervene in So-Called 'Whistleblower' Complaint Against World's Largest Plastic Pipe Maker."
Posted by Marcia Oddi on September 2, 2010 01:39 PM
Posted to Courts in general
Ind. Courts - More on "John Walker Lindh seeks Indiana prison prayer ruling "
Updating yesterday's ILB entry, the ILB has now obtained copies of John Walker Lindh's motion for summary judgment and the supporting memorandum, both filed in the SD Ind. on August 26, 2010.
Posted by Marcia Oddi on September 2, 2010 01:09 PM
Posted to Indiana Courts
Ind. Decisions - One Indiana case decided today by 7th Circuit
In U.S. v. Ivan Rea and Jose L. Medina (SD Ind., McKinney), a 25-page opinion, Judge Kanne writes:
This is the consolidated appeal of drug dealers Ivan Rea and Jose Medina. A jury convicted both Defendants and they now appeal various aspects of their convictions and sentences. * * *For the foregoing reasons, we VACATE Rea’s conspiracy conviction and sentence, and we AFFIRM Rea’s CCE conviction and sentence. We also AFFIRM Medina’s conspiracy conviction and sentence.
Posted by Marcia Oddi on September 2, 2010 01:03 PM
Posted to Ind. (7th Cir.) Decisions
Ind. Decisions - Court of Appeals issues 0 today (and 5 NFP)
For publication opinions today (0):
NFP civil opinions today (2):
Conwell Construction v. Abbey Road Development, LLC, et al. (NFP)
City of Gary, Indiana, et al. v. Hazel L. Osborne (NFP)
NFP criminal opinions today (3):
Johnny Mack Watts, Jr. v. State of Indiana (NFP)
Melvin A. Sykes v. State of Indiana (NFP)
Jeffrey Jinks v. State of Indiana (NFP)
Posted by Marcia Oddi on September 2, 2010 01:00 PM
Posted to Ind. App.Ct. Decisions
Environment - Proposed wood-fired boiler rule is preliminarily adopted by APCB
Here is a list of five years of ILB entries on the topic of wood fired boilers and their regulation.
Here is the agenda from yesterday's meeting of the APCB. Item #8 is the proposed Outdoor Hydronic Heater Rule - LSA#05-332. Here is the Fact Sheet and here is the Draft Rule.
Niki Kelly of the Fort Wayne Journal Gazette reports today on the Air Board's preliminary adoption of the proposal yesterday.
Gitte Laasby of the Gary Post Tribune reports:
Another public comment period will be necessary before officials can adopt rules for use of outdoor wood-fired boilers. That means Indiana's first state-wide rules may not be adopted until February.The Indiana Air Pollution Control Board voted unanimously Wednesday to preliminarily adopt Indiana's first state-wide rules. But so many changes have been made since the last draft that a new comment period will be needed. * * *
The rulemaking has been underway since 2005. IDEM spokeswoman Amy Hartsock said a third [written] public comment period is tentatively scheduled for October. She said a public hearing followed by another vote of the Air Pollution Control Board [i.e. "final adoption"] could happen in February 2011.
Posted by Marcia Oddi on September 2, 2010 10:58 AM
Posted to Environment
Ind. Law - Still more on: "Can you rely on the Indiana Code?"
The ILB has written much about this, including this entry from August 23, 2008 which began:
Yesterday afternoon several of us, members of the Environmental Law Section of the Indiana State Bar Association, buttressed in the audience by other bar members and a number of professional law librarians, had the opportunity to testify before the highly-regarded legislative Commission on Courts. The topic was our concerns about the Indiana Register and Indiana Administrative Code, which as of July 2006 are only available online, and our concerns about the fact that not all the statute law in Indiana is compiled in the Indiana Code.Those highlighted words were in my mind today when I read this story by Rosalind S. Helderman and Anita Kumar in the Washington Post, headlined "Crash of Va. computer network has implications for tech world, state politics." Some quotes from today's story:
RICHMOND -- The data storage unit that failed in a warehouse outside of Richmond last week, wreaking havoc in the computer networks of a number of Virginia agencies for more than a week, is a ubiquitous bit of technology used by virtually every major company and government in the country.Here some of the resulting problems are detailed:The crash -- still baffling to state officials -- exposes the vulnerability of modern, massively complex interconnected computer networks, and is being closely watched by information technology professionals across the country.
"People in the industry are watching in horrified fascination as this unfolds," said Robin Harris, an Arizona technology analyst who writes a blog on computer storage systems. "There's a lot of 'there but for the grace of God go I' kind of thinking."
More than a week after the initial hardware crash, state officials said operations would be fully restored at Virginia's 74 Department of Motor Vehicles offices Thursday. They estimate that as many as 45,000 people have been unable to renew their driver's licenses while computers have been down, and the agency will extend its hours in coming days and weekends to process the backlog. Officials reported Wednesday that the state's Department of Taxation was able to access taxpayer accounts and issue refunds and liens for the first time in seven days.Read the story for details of all the assurances "that this stuff never goes down."Employees throughout state government worked long hours for days to restore computer functions. At the Department of Social Services, local and state staffers had to work through the weekend to ensure that food stamps and welfare checks due to 380,000 residents were not delayed. The Department of Juvenile Justice was unable to release inmates. The Department of Veterans Services, which manages two long-term care centers and two cemeteries, couldn't pay its bills. In all, computers at 26 of the state's 89 agencies were affected.
Posted by Marcia Oddi on September 2, 2010 10:34 AM
Posted to Indiana Law
Ind. Courts - "Defense lawyers in East Chicago sidewalk scandal must repay city $453K"
Bill Dolan reports today in the NWI Times in a story that begins:
CROWN POINT | A judge is ordering lawyers who defended three East Chicago city officials convicted in the Sidewalk Six case to repay that city $453,282 in legal fees.Lake Superior Court Judge John Pera ruled Wednesday that former East Chicago City Controller Edwardo Maldonado illegally paid four law firms that amount in 2004 for their services in defending Maldonado and former City Councilmen Frank Kollintzas and Joe De La Cruz against federal public corruption charges.
Pera ordered attorney Kevin Milner of Merrillville to repay $47,250; Tsoutsouris & Bertig of Valparaiso to repay $51,444; Cotsirilos Tighe & Streicker Ltd. to repay $63,923; and Mayer Brown Rowe & Maw LLP to repay $290,665.
Posted by Marcia Oddi on September 2, 2010 10:26 AM
Posted to Indiana Courts
Environment - "Environmental groups hail selenium ruling as 'game changer'"
So reads the headline to a story in the Charleston West Virigina Gazette, reported by Ken Ward Jr. Some quotes from the long story:
A federal judge's ruling that Patriot Coal must clean up toxic selenium pollution violations at two mines in Southern West Virginia is a "game changer" that could force the mining industry to bear far more of the full costs of its operations, environmental groups said Wednesday.If eventually applied across dozens of other mining operations and hundreds of water pollution outlets, the treatment required by the court decision could easily cost the industry hundreds of millions of dollars.
"This court order is a game changer in our fight to protect streams and communities in West Virginia and to hold coal mining companies accountable for their pollution," said Ed Hopkins, senior Washington, D.C., director of the Sierra Club.
Patriot Coal blasted the court decision as unnecessary and said the coal industry needs to focus on efforts to rewrite West Virginia's water quality rules to weaken the state's selenium limits.
"Looking forward, Patriot is assessing its position in these cases and will determine its actions after the written judgment has been received," Patriot President Richard M. Whiting said in a news release.
On Tuesday, U.S. District Judge Robert C. Chambers ruled against Patriot in two combined cases involving repeated selenium violations at the company's Ruffner Mine in Logan County and its Hobet 21 complex along the Boone-Lincoln County border.
Posted by Marcia Oddi on September 2, 2010 10:14 AM
Posted to Environment
Ind. Courts - Ass't. U.S. Attorney charges Huang "used a 'patient and calculated' plan to 'drain' [Dow Agrosciences] of technology that took 20 years to develop"
An AP story reported yesterday by Charles Wilson began:
INDIANAPOLIS — A former Indiana scientist accused of illegally sending trade secrets worth $300 million to China and Germany was ordered detained Tuesday on rare charges of economic espionage.More:A federal indictment unsealed in Indianapolis alleges that 45-year-old Kexue Huang, who was born in China, passed on proprietary information about the development of organic pesticides to Hunan Normal University while he worked as a researcher for Dow AgroSciences in Indiana from 2003 to 2008.
Dow Agrosciences is a subsidiary of Midland, Mich.,-based Dow Chemical Co.
Assistant U.S. Attorney Cynthia Ridgeway said Huang, a Canadian citizen with permanent U.S. resident status, used a "patient and calculated" plan to "drain" the Indianapolis-based company of technology that took 20 years to develop.
The gallery in federal court was occupied by about a dozen of Huang's neighbors from his former home in the affluent Indianapolis suburb of Carmel and his current home in Westborough, Mass. Huang, clad in a jail uniform with gray and white stripes, was silent during the two-hour hearing.
Posted by Marcia Oddi on September 2, 2010 10:05 AM
Posted to Indiana Courts
Ind. Court - Update on the Governor's Supreme Court selection process progress
Here is the word this morning from Governor Daniels' General Counsel, David Pippen:
"Interviewed Mr. Mulvaney and Judge David yesterday. Has Judge Moberly in today."
Posted by Marcia Oddi on September 2, 2010 08:27 AM
Posted to Vacancy on Supreme Ct
Wednesday, September 01, 2010
Ind. Courts - "John Walker Lindh seeks Indiana prison prayer ruling "
Charles Wilson of the AP has a long story this afternoon that begins:
INDIANAPOLIS (AP) -- American-born Taliban fighter John Walker Lindh and another Muslim inmate have asked a judge to order a federal prison to allow them and other Muslims in their highly restricted cell block to pray as a group, in accordance with their beliefs.The American Civil Liberties Union last Thursday filed a motion in U.S. District Court in Indianapolis for summary judgment on behalf of Lindh, 29, and Enaam Arnaout, 47, who claim that the prison's policy restricting group prayer in the Communications Management Unit violates their religious rights. The ACLU contends there are no disputes over the facts of the case and that the law is on the inmates' side, and asks the judge to rule in their favor.
Lindh, who is serving a 20-year sentence at the Terre Haute prison for aiding Afghanistan's now-defunct Taliban government, wrote in a legal declaration that his religion requires him to pray five times a day, preferably in a group. "This is one of the primary obligations of Islam," he wrote.
Posted by Marcia Oddi on September 1, 2010 06:54 PM
Posted to Indiana Courts
Ind. Law - Services set for attorney Mary Jane Frisby, 44
Updating earlier ILB entries on the death of former Barnes & Thornburg attorney Mary Jane Frisby, the Indianapolis Star has today posted this obituary.
Posted by Marcia Oddi on September 1, 2010 04:57 PM
Posted to Indiana Law
Ind. Decisions - Court of Appeals issues 4 today (and 4 NFP)
For publication opinions today (4):
In Paul E. Armstrong, Jr. v. State of Indiana, a 15-page opinion involving a pro se appellant, Judge Riley concludes:
Based on the foregoing, we conclude that: (1) the post-conviction court did not err by finding that Armstrong received effective assistance of counsel; (2) Armstrong's plea of guilty was voluntary; (3) the State established a sufficient factual basis; and (4) any error that stemmed from Armstrong not being represented by counsel at the sentencing hearing is harmless beyond a reasonable doubt.In Mickey Sloan v. Town Council of the Town of Patoka, a 7-page opinion, Judge Riley writes:
Appellant-Plaintiff, Mickey Sloan (Sloan), appeals the trial court’s decision in favor of Appellee-Defendant, the Town Council of the Town of Patoka (Town of Patoka), denying Sloan’s claim of inverse condemnation of a certain part of his real estate by the Town of Patoka. We reverse and remand for further proceedings.In Stuart A. Clampitt v. State of Indiana, a 5-page opinion involving a pro se appellant, Judge Riley writes:
Appellant-Defendant, Stuart A. Clampitt (Clampitt), appeals the trial court’s Order denying his motion to remove his status as a sexually violent predator (SVP). We reverse and remand with instructions.In Alrita Morehead v. Duane Deitrich, a 14-page opinion involving a mail carrier and a pit bull, Judge Darden concludes:Clampitt raises five issues for our review, one of which we find dispositive and which we restate as follows: Whether the trial court has jurisdiction to rule on his motion to remove his SVP status. * * *
Clampitt argues, and the State concedes, that the trial court erred when it denied his motion to remove his name from Indiana’s sex offender registry. Specifically, Clampitt contends that pursuant to the amendment of Indiana Code section 11-8-8-22, the Indiana General Assembly provides trial courts with jurisdiction and guidance on the appropriate procedures to follow when a person challenges his status as a SVP.
In Clampitt’s previous appeal in Marion County, we addressed the same issue and advised him to file his petition in the county in which he resides. Additionally, we advised the trial court in the county where he filed an amended petition to follow the procedures set forth in I.C. § 11-8-8-22. However, after filing his revised petition, the trial court now denied Clampitt’s motion based on its perceived lack of jurisdiction over the Montgomery County Sherriff’s Department, the Indiana Sherriff’s Association, and the Department of Correction. We now direct the trial court to I.C. § 11-8-8-22(e): * * *
The procedures set forth in the amended statute allow the trial court, and this court on appeal, to be fully informed of a sex offender’s circumstances, including the offender’s full criminal history, dates of offenses, and reason for being required to register. Further, I.C. § 11-8-8-22(e) allows the trial court to provide notice of the proceedings to all interested parties and then set a hearing. For these reasons, we direct the trial court in the county where he filed his amended petition to consider the petition in light of I.C. § 11-8-8-22(e). Reversed and remanded with instructions.
We agree that it is reasonably foreseeable that a vicious dog, upon escaping its house or yard and encountering a stranger on a sidewalk, may bite that stranger. We, however, cannot say that it is reasonably foreseeable that that dog indeed will escape its confinement. It is not the dog's mere presence on leased property that causes harm. Rather, it is the owner's failure to adequately confine that dog. Thus, we do not conclude that there is a high degree of foreseeability that leasing property to the owners of vicious dogs will result in injury to third parties.NFP civil opinions today (0):As to public policy, Morehead argues that it would be served “by discouraging the harboring of known vicious animals in residential neighborhoods.” * * *
We agree that society has an interest in preventing dog attacks against innocent parties, and therefore in keeping vicious dogs adequately confined. It would be unreasonable, however, to impose a duty on landlords to regulate tenants' animals, where the owners clearly are in the best position to do so.
We find no reasonable basis to impose a duty upon Deitrich, and as a matter of law, where no duty exists. We therefore find no error in granting Deitrich's motion for summary judgment.Affirmed.
NFP criminal opinions today (4):
Nathan R. Cook v. State of Indiana (NFP)
Kenneth W. Rhymer, Jr. v. State of Indiana (NFP)
Robert Browning v. State of Indiana (NFP)
James N. Hamilton v. State of Indiana (NFP)
Posted by Marcia Oddi on September 1, 2010 01:18 PM
Posted to Ind. App.Ct. Decisions
Ind. Decisions - Supreme Court decides one today
In Eads and Atterholt v. Community Hospital, a 9-page, 5-0 opinion, Justice Boehm writes:
A patient was injured leaving the hospital on crutches. She sued, asserting a general premises liability claim, and claiming the hospital was negligent in refusing her a wheelchair. The medical malpractice limitations period expired before her general negligence complaint was dismissed for failure to comply with the requirement of the Medical Malpractice Act that a medical malpractice complaint be filed with the Department of Insurance before it is presented to a court. We hold that under these circumstances a medical malpractice complaint alleging the same facts as the dismissed complaint may be deemed a continuation of the first complaint for purposes of the Journey’s Account Statute. * * *The trial court’s grant of summary judgment is reversed.
Posted by Marcia Oddi on September 1, 2010 01:15 PM
Posted to Ind. Sup.Ct. Decisions
Ind. Courts - Marion attorney accused of smuggling drugs into a federal prison [Updated]
So reports WSIL TV 3, Marion. Some quotes:
Robert Drew is now in custody at an Indiana jail. Drew, 68, of Marion, is charged with possession of a controlled substance, and intent to distribute a controlled substance.The ILB does not find his name (Robert Drew, Marion) on the Indiana Roll of Attorneys.Officials say they found a package of marijuana and 52 grams of heroin taped to his body. They claim Drew was headed to a federal prison in Terre Haute, Indiana, this past Saturday to deliver the drugs. * * *
Drew told police in Vigo County, Indiana, this past weekend that he was delivering marijuana and heroin to a federal inmate because he and his family had been threatened. That inmate is Benjamin Kramer, a king pin in a 1980s drug ring that trafficked several tons of marijuana into the U.S. through shipping ports, netting Kramer more than $60 million.
Before an Indiana judge Monday, Drew said he hid the drugs in his Mercedes, and drove to Evansville with his wife, where they spent the night at a casino. He then drove to Terre Haute Saturday morning, and stopped at a gas station so he could tape the drugs to his body.
He hid the 52 grams of heroin in two condoms. Drew said other packages had been mailed to him in the past. He then smuggled those drugs into the prison, following orders he received from anonymous callers.
Drew told News 3 recently he is retired, but still representing a few clients in ongoing court cases.
[Updated on 9/2/10 at 4:08 PM] Perhaps that is because he is from Marion ILLINOIS, according to this brief AP story today.
Posted by Marcia Oddi on September 1, 2010 11:33 AM
Posted to Indiana Courts
Courts - Still more on "Justices Take Case on Video Game Law"
Updating earlier ILB entries, Tony Mauro and Carrie Levine report today in a very long story the National Law Journal:
Representatives of the video game industry, with $10 billion in annual sales nationwide, have been in contact with state AGs to persuade them to support the industry by filing a brief in the case, set for argument on Nov. 2. At issue: whether California's 2005 law banning sale or rental of violent video games to minors violated the First Amendment.Here is the SCOTUSblog WIKI page on the case, including the brief of 11 states (not including Indiana) supporting petitioners."It's our understanding that there's a pretty intense lobbying effort" against the law, said California Supervising Deputy Attorney General Zackery Morazzini, who will argue in defense of California's law before the high court in the case, titled Schwarzenegger v. Entertainment Merchants Association and Entertainment Software Association.
One sign that the industry is making inroads is that only 11 states signed onto an amicus curiae or friend-of-the-court brief supporting the California law filed on July 19, an unusually low number in a case involving a law aimed at protecting children. In a typical state-law enforcement case, 40 states or more may join briefs supporting their counterparts before the Supreme Court. The justices often cite state amicus briefs, so having states on the industry's side could be an important tactic in countering California's defense of the law.
Posted by Marcia Oddi on September 1, 2010 11:22 AM
Posted to Courts in general
Environment - "Neighbors sue City of Jeffersonville over asphalt plant"
Connie Leonard reports for WAVE 3:
JEFFERSONVILLE, IN (WAVE) – People living next to an asphalt plant in Jeffersonville, IN are suing the city after a five year zoning dispute. Now, they want the construction company that put the plant up to take it down.Interesting. The ILB would like to post the Ind. Code provision ...The plant's next door neighbors say for the past couple of years, they've had to put up with noise, odors and dirt that has caused them discomfort and health problems.
The suit filed in Clark Circuit Court claims the city of Jeffersonville and its planning and zoning department went around state law to allow MAC Construction approval for the plant so the company could produce asphalt on its property. It also finds the Jeffersonville's own city ordinance does not support the existence of an asphalt plant in that location.
The city claims former Mayor Rob Waiz and his planning and zoning director gave permission for the plant in 2005. City Attorney Larry Wilder says the former director found a provision in the Indiana code that allowed them to grant zoning without a hearing.
Posted by Marcia Oddi on September 1, 2010 11:09 AM
Posted to Environment
Ind. Courts - "Jill Behrman’s bicycle, other evidence to be available to new murder defense team"
Keith Rhoades reported yesterday in the Bloomington Herald-Times ($$$) on the post-conviction relief motion of John Myers II - here are some quotes from the long story:
MARTINSVILLE — Morgan County Superior Court I Judge G. Thomas Gray told both the state and defense attorneys for John Myers II that the court will give the defense attorneys access to all evidence collected in the murder case, including the bicycle Jill Behrman was riding the day she disappeared.The Herald-Times has made archived stories, photos and documents on the case available on a special page (it appears the page is available, but the stories themselves are restricted to subscribers to the paper).Myers was convicted in October 2006 in Morgan County Superior Court II in the death of the IU student and Bloomington native in 2000. In December 2006, Judge Christopher Burnham sentenced Myers to 65 years in prison.
A hearing was held Monday morning on a defense request to have access to the bicycle Behrman was riding when she disappeared. The bicycle was found within two miles of Myers’ home. Her remains were found in a wooded area near Paragon in March 2003.
Myers had appealed his case up to the Indiana Supreme Court, but his conviction was upheld. Now he has filed for post-conviction relief. His case was in Superior Court II, but Myers requested it be reassigned and after a random draw, the case went to Judge Gray in Superior Court I.
Two public defenders, Anne Murray Burgess and Joanna Green, have been appointed to represent Myers.
While the defense had wanted to take the bicycle to have it examined, a discussion among the defense attorneys and Morgan County Prosecutor Steve Sonnega resulted in a compromise.
Sonnega told Judge Gray the state is willing to allow the defense, and the company they have hired, to inspect the bicycle while it is under the control of the court. The agreement allows the company to photograph and take measurements of the bicycle, but they will not, at this time, be allowed to touch it. The company will not be allowed to take paint samples or otherwise do anything to the bicycle.
Sonnega said, “I’m not sure what they hope to find. There’s not much damage to it and there will be no harm for the defense to examine and photograph it.”
Sonnega was adamant that the chain of custody for the bicycle must remain unbroken, which means the bicycle has to stay in the possession of the court. He said there must be a representative from the state present while the inspection is performed.
All evidence that was used in the trial is still under control of Judge Burnham in Superior Court II.
Judge Gray said at this time, the evidence had not been transferred to his court, but he said there is no reason to deny the defense request.
“Now it’s my case, nothing will be kept hidden from the defense,” Gray said. * * *
Burgess said they will need access to all the evidence collected during the six-year investigation. Sonnega said the state has a lot of evidence from the trial, but they did not get everything from all the agencies that took part in the investigation.
Judge Gray said all evidence collected during the investigation, from when it began in 2000, will be available to the defense. That includes evidence from the Indiana State Police, Bloomington Police Department and the Federal Bureau of Investigation, which also assisted with the investigation.
The judge said, if needed, he would sign orders making that evidence available to the defense.
Myers is being held at the state prison in Michigan City. He did not attend his hearing. Behrman’s father did attend the hearing.
Posted by Marcia Oddi on September 1, 2010 10:46 AM
Posted to Indiana Courts
Environment - Indiana walnut trees at risk
From the AP, via the Indy Star:
INDIANAPOLIS -- Indiana's wildlife agency has issued an emergency rule banning walnut products from nine western states and Tennessee from being shipped into Indiana.The rule took effect Monday and is intended to prevent a tree disease that afflicts black walnut trees and other walnut species, including butternut, from reaching Indiana.
AdvertisementOfficials with the state Department of Natural Resources say Thousand Cankers Disease is a major threat to the state's black walnut trees.
The new rule applies to walnut products from Arizona, California, Colorado, Idaho, Nevada, New Mexico, Oregon, Tennessee, Utah and Washington.
It bans walnut nursery stock and a variety of unprocessed products such as firewood and mulch from being shipped into Indiana.
Posted by Marcia Oddi on September 1, 2010 10:44 AM
Posted to Environment
