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Thursday, March 31, 2005

Ind. Law - Does Anyone Really Know What Time It Is?

"Does Anyone Really Know What Time It Is?" is the headline to a book review today in the Wall Street Journal (paid subscription). The book? Titled Spring Forward, written by Michael Downing. A sample:

Indifferent to the arguments of the daylight-mad Chambers of Commerce, cows proved unwilling to adjust their milking habits to the new time. Nevertheless, President Wilson smugly lectured husbandmen that the farmer's "life and methods are more easily adjusted, I venture to think, than are those of the manufacturer and the merchant."

Illinois Rep. Edward King charged that DST benefited "the pleasure-seekers, the swivel-chair ornaments, and the golf players" by giving them an extra hour of daylight for their decadent recreations. Critics referred to DST as "golf time." And indeed, Daylight Saving was a tremendous boon to golf, as duffers might stride the links till 9:30 of a summer night. President Wilson was "a genuinely fanatic golfer," but he hid the niblick under his hairshirt, emphasizing sacrifice rather than pleasure.

Farmers demanded, and got, DST repealed after the war [WW I]. The battle over time shifted to the states and cities, with the populated East the stronghold of the time-shifters. In one act of chrono-tyranny, Connecticut made it illegal to display the wrong time on a wristwatch.

Posted by Marcia Oddi on Thursday, March 31, 2005
Posted to Indiana Law

Ind. Decisions - Court of Appeals posts eight today; Tax Court posts one

Grant F. Shipley v. KeyBank National Association (3/31/05 IndCtApp) [Procedure]
Sharpnack, Judge

In this interlocutory appeal, Grant F. Shipley appeals a portion of the trial court’s order, which granted him summary judgment on one of the issues he raised and ordered him to return approximately $70,000 in attorney fees that he previously had received as the attorney for a former receivership to the receivership estate that is pending in another county court for distribution by that court. Shipley also appeals the trial court’s denial of his Ind. Trial Rule 60 motion to correct a clerical mistake in the dating of the summary judgment order, which had been issued nunc pro tunc. Shipley raises four issues, which we consolidate and restate as:
Whether the trial court erred by granting Shipley’s motion for summary judgment on the issue of repayment of fees earned as attorney for a former receivership and by ordering Shipley to return the fees to the receivership pending in the Huntington Circuit Court; and Whether the special judge abused his discretion by concluding that the trial court’s written summary judgment order was properly entered as a nunc pro tunc order. We affirm * * *
BAKER, J. and FRIEDLANDER, J. concur
Dorsey L. Mathews v. State of Indiana (3/31/05 IndCtApp) [Criminal Law & Procedure]
Najam, Judge
* * * We conclude that the murder instruction does not constitute fundamental error. We further conclude that none of Mathews’ convictions violate double jeopardy except for Count IX, which we order the trial court to vacate. In addition, the consecutive sentence limitation was not violated in this case. Accordingly, we reverse and remand for the trial court to impose a sentence of 125 years. Mathews’ sentence is not otherwise inappropriate under Indiana Appellate Rule 7(B). Affirmed in part, and reversed and remanded in part.
KIRSCH, C.J., and VAIDIK, J., concur
Michael Morrison v. State of Indiana (3/31/05 IndCtApp) [Criminal Law & Procedure]
Bailey, Judge
Appellant-Defendant Michael Morrison (“Morrison”) appeals his convictions for two counts of attempted criminal deviate conduct as Class B felonies and two counts of sexual battery as Class D felonies. Morrison also challenges his executed fifteen-year sentence in light of Blakely v. Washington, 124 S. Ct. 2531 (2004), reh’g denied . We affirm in part and remand for vacation of two convictions. * * *

Here, the trial court sentenced Morrison to an enhanced term of fifteen years for his attempted criminal deviate conduct as a Class B felony conviction and to an enhanced term of three years for his sexual battery as a Class D felony conviction, and ordered that the sentences be served consecutively. In so doing, the trial court found one aggravating circumstance—i.e., White’s mental handicap—and one mitigating circumstance—Morrison’s lack of criminal history. Morrison maintains that his enhanced sentence was improper because it is based upon White’s mental handicap, which was a fact not determined by the jury or admitted by Morrison. We disagree. * * *

Yet, because the jury found Morrison guilty of Counts II and IV, which required proof of White’s mental incapacity, the jury necessarily determined, beyond a reasonable doubt, that Morrison committed the offenses against White, i.e., a person with limited mental capacity. Because the jury found, beyond a reasonable doubt, that White was “so mentally disabled or deficient that consent to the touching [could not] be given,” its verdict alone allowed for the enhanced punishment. Appellant’s App. at 102; see also Powell v. State, 751 N.E.2d 311, 317 (Ind. Ct. App. 2001) (holding that an enhanced sentence will be affirmed if it is supported by a legitimate aggravator). As such, Morrison has failed to show that the trial court violated his Sixth Amendment right to have a jury determine his sentence.

For the foregoing reasons, we affirm Morrison’s convictions for Count I, attempted criminal deviate conduct, and Count III, sexual battery, as well as his executed fifteen-year sentence. We remand to the trial court with instructions to vacate Morrison’s convictions for Count II, attempted criminal deviate conduct, and Count IV, sexual battery. Affirmed in part and remanded in part.
SULLIVAN, J., and MATHIAS, J., concur


Geri Wheatcraft v. Charles Wheatcraft
[Family Law]
Najam, Judge
Geri Wheatcraft (“Wife”) appeals from three of the trial court’s orders in this dissolution proceeding. Wife presents the following issues for our review: [1] Whether the trial court abused its discretion when it denied Wife’s motion to set aside the dissolution decree under Indiana Trial Rule 60(B). [2] Whether the trial court abused its discretion when it denied Wife’s motion for discovery under Indiana Trial Rule 60(D). [3] Whether the trial court abused its discretion when it granted Charles Wheatcraft’s (“Husband’s”) petition for attorney’s fees. * * *
Affirmed.
KIRSCH, C.J., and VAIDIK, J., concur
Joseph D. Caron v. State of Indiana (3/31/05 IndCtApp) [Criminal Law & Procedure]
Friedlander, Judge
* * * As we have noted on a number of occasions, a single valid aggravating circumstance may be sufficient to sustain an enhanced sentence. See, e.g., Teeters v. State, 817 N.E.2d 275. Moreover, when the trial court improperly applies aggravating circumstances but other valid aggravating circumstances exist, a sentence enhancement may still be upheld. See Bacher v. State, 722 N.E.2d 799 (Ind. 2000). The five aggravating circumstances previously sustained adequately support the five-year enhancement of Caron’s sentence, and we can say with confidence that the enhanced sentence is appropriate without considering the validity of the two remaining aggravating circumstances. See Witmer v. State, 800 N.E.2d 571 (Ind. 2003). Judgment affirmed in part and reversed in part.
SHARPNACK, J., and BAKER, J., concur
Manous, LLC, et al. v. Pauline Manousogianakis (3/31/05 IndCtApp) [Worker's Comp]
Najam, Judge
Manous, LLC (“Manous”) appeals the decision of the Worker’s Compensation Board of Indiana (the “Board”) awarding benefits to the family of an employee who was murdered while at his place of employment. Manous presents the following issues for our review: [1] Whether the positional risk doctrine applies when an employee is murdered at his workplace without explanation. [2] Whether sufficient evidence exists to support the Board’s finding that Christos Manousogianakis’s (“Christos”) dependents are entitled to worker’s compensation benefits.

Christos’s wife, Pauline Manousogianakis (“Manousogianakis”) cross-appeals, seeking appellate attorney’s fees and a ten percent increase in the worker’s compensation award. We affirm and remand. * * *

Conclusion. In sum, Manousogianakis demonstrated that Christos’s unexplained murder occurred in the course of his employment. Under the positional risk doctrine, there was a presumption that Christos’s death arose out of his employment, which Manous failed to rebut. Thus, the Board did not err when it determined that Manousogianakis was entitled to worker’s compensation benefits. We also conclude that Manousogianakis is not entitled to appellate attorney’s fees. Because we are affirming the full Board’s decision on appeal, however, Manousogianakis is entitled to a five percent increase in her award pursuant to Indiana Code Section 22-3-4-8(f). We remand this case to the Board for further proceedings consistent with this opinion. Affirmed and remanded.
KIRSCH, C.J., and VAIDIK, J., concur


Save the Valley, Inc., et al. v. Indiana-Kentucky Electric Corporation and IDEM
(3/31/05 IndCtApp) [Procedure]
Barnes, Judge
We grant the Appellees’ petitions for rehearing; however, we affirm our opinion in all regards. We issue this opinion on rehearing to address an argument raised by IKEC for the first time in its petition for rehearing and to clarify the issue of the trial court’s subject matter jurisdiction. * * *
NAJAM, J., and SULLIVAN, J., concur

Mandy Bowles v. General Electric Company
(3/31/05 IndCtApp) [Worker's Comp]
Friedlander, Judge
On April 3, 2002, Mandy Bowles filed an application for adjustment of claim with the Indiana Worker’s Compensation Board claiming permanent disablement from injuries suffered while working for General Electric (GE). GE moved to dismiss Bowles’s claim for lack of jurisdiction pursuant to Ind. Code Ann. § 22-3-3-3 (West 1998). A single hearing member of the Board granted GE’s motion to dismiss, and Bowles filed for review. After a hearing, the full Board affirmed the single hearing member’s decision. On appeal, Bowles raises two issues that we consolidate for review: Is her claim time-barred? We affirm. * * *
SHARPNACK, J., and BAKER, J., concur

Thomas R. Galligan v. Indiana Department of State Revenue
(3/30/05 IndTaxCt) [Sales & Use Tax]
Fisher, Judge
homas R. Galligan (Galligan) appeals the final determination of the Indiana Department of State Revenue (Department) which assessed him with the unpaid sales and use tax liabilities of Irish Park, Inc. (IP) for the 1993, 1994, and 1995 tax years (years at issue). The case is before the Court on the following issues: [1] Whether collecting IP’s tax liabilities from Galligan for the years at issue violates his right to due process; and [1] Whether the Department has erred in imposing sales and/or use tax on certain IP transactions? * * *

Based on the foregoing reasons, this Court finds that Galligan is not liable for IP’s 1993 tax liabilities. Galligan can be held liable, however, for IP’s unpaid sales/use taxes for the 1994 and 1995 years. Nevertheless, Galligan has presented prima facie evidence that the Department’s assessments as discussed in Issues II(A), II(B), II(C), and II(D)(2),(3),(4),(5), and (6) were in error. Consequently, those audit findings are REVERSED and the Court REMANDS those matters to the Department to recalculate the amount of tax due. The Department’s assessments as discussed in Issues II(D)(1), II(E), and II(F) are AFFIRMED.

Posted by Marcia Oddi on Thursday, March 31, 2005
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Supreme Court posts two today

In the Matter of Patrick S. Ryan (3/31/05 IndSCt) [Disciplinary Proceeding]
Per Curiam

Today, we find that the respondent, Patrick S. Ryan, violated Ind. Professional Conduct Rule 1.7(b) by operating a business that obtained international driver’s licenses for individuals charged in the Goshen City Court with driving license offenses, while at the same time serving as a part-time deputy prosecutor in that court. For his misconduct, we further find that respondent should be suspended from the practice of law for nine (9) months.

The following facts are admitted. At all relevant times respondent was a part-time deputy prosecutor in Elkhart County assigned to the Goshen City court. Respondent observed that many Latino motorists were being charged in the Goshen City court with driving without licenses (a class C misdemeanor) or without a license in possession (a class C infraction). As a general practice, the court permitted the state to reduce the original charge to a lesser charge or an ordinance violation, if the defendant provided proof of obtaining a valid license.

Respondent, along with his wife, started a business venture, Legal Licensing Limited (LLL), aimed at obtaining “international driver’s licenses” for individuals at a cost of $275. His wife was LLL’s only employee, with an office in the respondent’s law office. Respondent enlisted the city court’s interpreter to recruit (for $20 each) customers for the new business. * * *

Though respondent has admitted his violation, in an attachment to his affidavit of consent to discipline he demonstrates his failure to grasp the magnitude of his misconduct. The attachment speaks to the validity of international driver’s licenses and the propriety of accepting them in reaching a plea agreement with defendants in the court he served. Respondent does not seem to recognize the inappropriateness of prosecuting defendants and simultaneously providing a business service to them designed to obtain a favorable result in the prosecution.

In light of the above considerations, we conclude that the respondent should be suspended from the practice of law for nine months. It is therefore, ordered that respondent, Patrick S. Ryan, is hereby suspended from the practice of law for a period of not less than nine (9) months commencing May 8, 2005, and at the conclusion of which the respondent may petition this Court for reinstatement to the practice of law. In addition to the requirements set forth in Ind. Admission and Discipline Rule 23, Section 4, the respondent will also be required to demonstrate as a condition of reinstatement that he understands the seriousness of his malfeasance and that he is fit to return to the practice of law. Costs of this proceeding are assessed against the respondent.


Associated Medical Networks, LTD v. Dr. William R. Lewis
(3/32/05 IndSCt) [Procedure]
Dickson, Justice
This appeal challenges the trial court's determination that the predominance and superiority requirements of Indiana Trial Rule 23(B)(3) were satisfied for purposes of maintaining a class action. Concluding that predominance was not established, we reverse the class certification.

The plaintiffs, Dr. William R. Lewis, Dr. Darryl Fortson, and Wabash Avenue Medical Center (collectively, "the Providers"), brought this action to compel the defendants, Associated Medical Networks, Ltd., Associated Insurance Companies, Inc., and Anthem Health Systems, Inc. (collectively, "Anthem"), for payment of medical expenses under assignments executed by patients, and for certification as a class to proceed on behalf of all other similarly situated health care providers. * * *

A class certification based upon T.R. 23(B)(3) requires compliance with both the predominance and the superiority requirements. Because we conclude that the Providers failed to satisfy the predominance requirement, the class certification fails, and we need not separately address whether the superiority requirement was satisfied.

Conclusion. The trial court's Order Certifying Plaintiff Class is reversed, and this cause is remanded for further proceedings.

Shepard, C.J., and Sullivan and Rucker, JJ., concur. Boehm, J., not participating.

Posted by Marcia Oddi on Thursday, March 31, 2005
Posted to Ind. Sup.Ct. Decisions

Ind. Courts - Indiana Supreme Court will convene at college

"Indiana Supreme Court will convene at college" is the headline to a story today by Beth Shindle in the Huntington Herald-Press. Some quotes:

Four of the five justices of the Indiana Supreme Court will be at Huntington College next Wednesday to hear oral arguments in a case that examines spousal privilege in a criminal case. * * *

Due to scheduling conflicts, Chief Justice Randall Shepherd will not be present at the event. The public is welcome to attend.

Huntington County Prosecutor John Branham, who teaches the American national government and American constitutional history classes at HC, arranged for the justices to come to Huntington. The Indiana Supreme Court chooses to hear a few cases each year at locations across the state, primarily for public relations and educationally related reasons.

Branham said the event will be a "field learning experience" for his college students and would include students from Huntington North High School if they were not already scheduled for spring break next week. He also said this is the first in recent years that the Supreme Court has come to the Huntington area. The District Court of Appeals was at the college Sept. 27, 1995.

The case that will come before the Supreme Court Wednesday is John Glover v. State [access ILB entry on 11/5/04 Court of Appeals decision here, fifth case]. The state has charged Glover with murder and listed his wife, Bobbie Glover, as a state's witness on the charging information.

Glover wanted to suppress his wife's testimony and felt he could do so according to a spousal privilege code identified in Indiana state law. However, the first place he took the case, the Marion County Supreme Court, said that Glover could not suppress his wife's testimony because the marriage was a "sham marriage" that took place under Kentucky law, Branham said, for the purpose of preventing her from being deported to her native country of India. * * *

After the Marion County Superior Court denied John Glover's motion, he took the case to the Indiana Court of Appeals, and the court said the privilege should apply, Branham said. The state then filed a petition to transfer the case to the Indiana Supreme Court, and the court decided to accept the case.

"It will be a matter not so much of fact but of law and public policy," Branham said.

The issue of Glover's motion to suppress his wife's testimony must be decided before his trial can be held.

Here is a link to the Supreme Court's April 2005 calendar of oral arguments. On Thursday, April 7th the Court will hear an interesting issue of standing under the Administrative Orders and Procedures Act. The case is Indiana Assoc. of Beverage Retailers v. Indiana Alcohol and Tobacco Comm’n [access ILB entry on 5/25/04 Court of Appeals ruling here, last case].

On Thursday, April 14 the Court will hear Michael Armstrong v. State. There have been several ILB entries on this case, where the issue was "When a passenger jumped from defendant Armstrong's moving vehicle and was injured as a result, was Armstrong involved in an accident for purposes of IC 9-26-1-1, triggering the duties under that statute?" Access them at 11/23/04 (2nd case); 11/24/04; and 3/2/05.

And on Tuesday, April 19, the Court will hear arguments in Lacey v. State, an unpublished Court of Appeals decision.

Posted by Marcia Oddi on Thursday, March 31, 2005
Posted to Indiana Courts

Ind. Decisions - 7th Circuit posts two today

Sveum, Michael A. v. Smith, Judy P. (WD Wis.) [2 pp.]

[Per curiam denial of request for leave to proceed in forma pauperis on appeal]

USA v. Funds Amount $30,670 (ND Ill.) [39 pp.]

Before POSNER, KANNE, and ROVNER, Circuit Judges.
KANNE, Circuit Judge. Two Drug Enforcement Administration (“DEA”) agents encountered Antonio Calhoun at Chicago’s Midway Airport as he attempted to board a flight destined for Phoenix. The agents confiscated $30,670 in cash that Calhoun was carrying, and a drug detection dog later alerted to the currency, indicating the presence of narcotics. The United States filed a civil forfeiture action with regard to the cash, and the district court granted summary judgment in the government’s favor. Calhoun appeals the judgment and, moreover, asks that we sua sponte grant summary judgment in his favor. We decline Calhoun’s request and affirm the judgment of the district court.

Posted by Marcia Oddi on Thursday, March 31, 2005
Posted to Ind. (7th Cir.) Decisions

Law - Federal Judge Condemns Intervention in Schiavo Case

There have been a number of reports today on Judge Birch's concurring opinion yesterday (3/30/05) in the 11th Circuit's denial of the emergency petition for rehearing in banc in the Terri Schiavo case. Here is the ruling in Schiavo v. Schiavo. Judge Birch's concurring opinion is found at page 3-30 of the 30-page document.

Here is the NY Times coverage today of the ruling. Some quotes:

The 11th Circuit court's decision, signed by Chief Judge J. L. Edmondson, was only a sentence long. But in a concurring opinion, Judge Stanley F. Birch Jr., appointed by the first President Bush in 1990, wrote that federal courts had no jurisdiction in the case and that the law enacted by Congress and President Bush allowing the Schindlers to seek a federal court review was unconstitutional.

"When the fervor of political passions moves the executive and legislative branches to act in ways inimical to basic constitutional principles, it is the duty of the judiciary to intervene," wrote Judge Birch, who has a reputation as consistently conservative. "If sacrifices to the independence of the judiciary are permitted today, precedent is established for the constitutional transgressions of tomorrow."

Judge Birch said he had not had time before now to consider the constitutionality of the law, which Congress passed and Mr. Bush signed before dawn March 21, because of "the rapid developments and sensitivities in this case." The 11th Circuit court considered and rejected several appeals from the Schindlers last week after Judge James D. Whittemore of Federal District Court in Tampa denied their motions.

In particular, Judge Birch wrote, a provision of the new law requiring a fresh federal review of all the evidence presented in the case made it unconstitutional. Because that provision constitutes "legislative dictation of how a federal court should exercise its judicial functions," he wrote, it "invades the province of the judiciary and violates the separation of powers principle."

David J. Garrow, a legal historian at Emory University who closely follows the 11th Circuit, said Judge Birch's opinion was striking because the judge was a conservative Republican, especially regarding social issues. Judge Birch wrote the ruling for a three-judge panel of the court last year unanimously upholding a Florida law that prohibits gay men and lesbians from adopting children.

"This is a Republican judge going out of his way to directly criticize the Congress and President Bush for what they've done," Mr. Garrow said.

Erwin Chemerinsky, a law professor at Duke University, said Judge Birch probably felt it important to address the constitutionality of the law because the opportunity might never arise again.

"When Terri Schiavo dies, this law expires because it was only about her," Mr. Chemerinsky said. "This raised an important constitutional issue that could come up again, and he's saying it's important that some judge be on the record about it."

Posted by Marcia Oddi on Thursday, March 31, 2005
Posted to General Law Related

Ind. Law - Evidence management varies

"Evidence management varies: Small towns often lack secure facilities for spoils of crime" is the headline to a story today in the South Bend Tribune by Laura Steele. Some quotes from the beginning of the piece:

Not all small police agencies have the means to properly safeguard seized evidence, local town marshals say.

Although some departments call their evidence management capabilities state-of-the-art, most agree they are only "sufficiently adequate."

That gap exists, they say, because although state law mandates all seized evidence to be "securely held" during an investigation, it does not outline an exact procedure as to how to do that.

The issue has arisen after last week's arrest of Roseland Town Marshal D. Michael Swanson, who police say stole confiscated drug money stored in the town's safe.

Scott Mellinger, executive director of the Indiana Law Enforcement Academy, said town marshals are trained to handle evidence in the same way as officers from larger departments.

"We talk about the chain of custody and the necessity to document who might have been in possession of evidence," Mellinger said. Marshals are then encouraged to implement a written evidence policy for their department, either with a template or on their own.

"But what happens too many times is a smaller agency head will make the assumption that it won't happen here," he said.

Posted by Marcia Oddi on Thursday, March 31, 2005
Posted to Indiana Law