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Saturday, September 30, 2006

Ind. Courts - Resources for the 2006 Indiana Appellate Judicial Retention Election

I've added some new material to the "Resources for the 2006 Indiana Appellate Judicial Retention Election" website first mentioned in this ILB entry last Wednesday.

Access the judicial retention website here.

Posted by Marcia Oddi on Saturday, September 30, 2006
Posted to Indiana Courts

Courts - Campaign Cash Mirrors the Ohio Supreme Court’s Rulings

Adam Liptak and Janet Roberts have a lengthy and important article in the Sunday issue of the New York Times, tracking case outcomes and contributions on the Ohio Supreme Court.

A few quotes from the beginning of the long report:

In one of the cases, every justice in the 4-to-3 majority had taken money from affiliates of the companies. None of the dissenters had done so, but they had accepted contributions from lawyers for the plaintiffs.

Thirty-nine states elect judges, and 30 states are holding elections for seats on their highest courts this year. Spending in these races is skyrocketing, with some judges raising $2 million or more for a single campaign. As the amounts rise, questions about whether money is polluting the independence of the judiciary are being fiercely debated across the nation. And nowhere is the battle for judicial seats more ferocious than in Ohio.

An examination of the Ohio Supreme Court by The New York Times found that its justices routinely sat on cases after receiving campaign contributions from the parties involved or from groups that filed supporting briefs. On average, they voted in favor of contributors 70 percent of the time. Justice O’Donnell voted for his contributors 91 percent of the time, the highest rate of any justice on the court.

In the 12 years that were studied, the justices almost never disqualified themselves from hearing their contributors’ cases. In the 215 cases with the most direct potential conflicts of interest, justices recused themselves just 9 times.

Even sitting justices have started to question the current system. “I never felt so much like a hooker down by the bus station in any race I’ve ever been in as I did in a judicial race,” said Justice Paul E. Pfeifer, a Republican member of the Ohio Supreme Court. “Everyone interested in contributing has very specific interests.”

“They mean to be buying a vote,” Justice Pfeifer added. “Whether they succeed or not, it’s hard to say.”

Three recent cases, two in Illinois and one in West Virginia, have put the complaints in sharp focus. Elected justices there recently refused to disqualify themselves from hearing suits in which tens or hundreds of millions of dollars were at stake. The defendants were insurance, tobacco and coal companies whose supporters had spent millions of dollars to help elect the justices.

After a series of big-money judicial contests around the nation, the balance of power in several state high courts has tipped in recent years in favor of corporations and insurance companies.

In the 2002 Ohio judicial election, for example, two candidates won seats that year on the seven-member court after each raised more money than one of the candidates for governor that year.

The story is accompanied by a number of sidebars and videos, and this rather amazing chart.

Posted by Marcia Oddi on Saturday, September 30, 2006
Posted to Courts in general

Ind. Decisions - Transfers Pending List updated

The "Transfers Pending List" (Cases Granted Transfer by the Supreme Court and Awaiting Decision) has been updated to reflect activites from the week of September 25th.

Posted by Marcia Oddi on Saturday, September 30, 2006
Posted to Ind. Sup.Ct. Decisions | Indiana Transfer Lists

Law - "In Russia, Juries Must Try, Try Again"

The LA Times today has a long, informative story by Kim Murphy about jury trials in Russia. Some quotes:

In a country with no double jeopardy clause, a second trial began 11 months later, but that ended in a mistrial. So did a third. A fourth jury again acquitted the suspects. In April, the Supreme Court upheld the verdict.

But it's not over yet.

Prosecutors have announced they are petitioning for a new trial with the presidium of the Supreme Court, the highest judicial panel in Russia. The businessman, Magomed Isakov, has come to believe that he will simply be tried until he is found guilty.

"When they acquitted me the last time, I thought my heart would stop," Isakov said in an interview at his home, to which he returned this summer after more than four years of on-and-off imprisonment. "The whole courtroom was crying, even the jurors.

"But I'm sure they will keep appealing. The police, the prosecutors got so many awards for this. Lots of people were decorated for solving this case. They don't want to stop."

More than a decade after the Soviet-era judicial system was overhauled, jury trials in Russia are still a work in progress.

Panels are selected in an opaque process that sometimes produces juries with visible links to the security services. Jury instructions and verdict forms can be worded to leave no realistic alternative but conviction. On the other hand, bribery and threats are still so much a part of the Russian justice system that no one can guarantee that jurors are not being influenced to acquit the guilty, legal experts say.

It has been a slow transition from the Soviet-era judicial system, in which there were no jury trials and courts largely carried out the will of the government. Of 1.1 million criminal cases tried in Russia last year, only 600 were decided by juries; the institution will not be fully in place nationwide until 2007. Jurors acquitted defendants in 18% of the cases they decided. Defendants tried by judges were found not guilty in 3% of the cases.

Under laws allowing jury acquittals to be set aside in cases where serious legal violations occur during trial, the Supreme Court last year reversed 46% of the acquittals and ordered new trials.

Russian jurors are growing increasingly vocal, especially those who may have spent months hearing evidence in a case only to see their acquittal reversed by what many see as a flimsy pretext by the prosecution.

[More] Also today, Peter Finn of the Washington Post Foreign Service writes that "In Russia, Psychiatry Is Again a Tool Against Dissent." A quote:
that Soviet-style forced psychiatry has reemerged in Russia as a weapon to intimidate or discredit citizens who tangle with the authorities, according to human rights activists and some mental health professionals. Despite major reforms in the early 1990s, some officials are again employing this form of repression.

Posted by Marcia Oddi on Saturday, September 30, 2006
Posted to General Law Related

Ind. Decisions - "Court upholds child molesting conviction"

The Terre Haute Tribune-Star reports:

An appeals court has upheld the conviction of a Terre Haute man tried in 2005 for molesting three children under age 12.

David A. Thomas, 46, of Terre Haute was convicted at trial of the crimes committed from March 2001 to December 2003. His three female victims testified against him in Vigo County Superior Court Division 1. Judge Michael H. Eldred sentenced Thomas to 30 years in prison.

In his appeal, Thomas asked the Indiana Court of Appeals to consider whether one of the children’s pre-trial statement to investigators should have been recorded, as well as whether there was enough evidence to support his convictions and whether he was properly sentenced.

The decision, David Thomas v. State of Indiana (NFP), is available here.

Posted by Marcia Oddi on Saturday, September 30, 2006
Posted to Ind. App.Ct. Decisions

Ind. Courts - More on: Gov. Daniels appoints St. Joseph Superior Court Judge

Updating yesterday's press release from the Governor's office, the South Bend Tribune reports today, in a story by Patrick M. O'Connell:

The appointment of [Jane Woodward ] Miller, 56, an adjunct professor at the University of Notre Dame Law School, former magistrate in St. Joseph Probate Court and former deputy county prosecutor, doubles the number of women serving on the bench in St. Joseph County.

Miller, a mother of two and wife of U.S. District Chief Judge Robert Miller Jr., is the third woman ever to join the St. Joseph County bench as a judge. She joins Judge Jenny Pitts Manier, who serves at the Mishawaka courthouse.

Pitts Manier was appointed in 1998 to replace Jeanne M. Jordan, the first woman to serve as a judge in the county.

Miller will handle felony criminal cases as St. Joseph Superior Court judge, replacing Judge William Albright, 65, who is retiring.

Miller's first court hearings begin Oct. 10.

Daniels said people who normally do not agree on other issues told him Miller was the best person for the position.

The governor said he considered appointing a woman to the bench to be a plus, but that Miller's qualifications and reputation were what made her a lock for the judgeship. * * *

Daniels said the appointment was made without regard to party affiliation or political persuasion. * * *

Tears welled in Miller's eyes as she talked with reporters about the support the community has given her and her family over the years, especially during her battle with cancer several years ago.

"I can't describe how much this means to me," Miller said.

Posted by Marcia Oddi on Saturday, September 30, 2006
Posted to Indiana Courts

Friday, September 29, 2006

Ind. Courts - More on: Long-running dispute between Judge and Clerk in Martin County continues

Updating Wednesday's entry, which included a quote from the Washington Times-Herald that began:

SHOALS — Martin County Commissioners were presented with a conflict of interest statement from county Clerk John Hunt and his attorney, Fremont Pickett at Tuesday’s meeting.

In the statement filed on Sept. 19, Hunt said Judge Joseph Howell “has entered his office on numerous occasions and intruded upon the duties of the Clerk and the Clerk’s personnel.”

The ILB has now obtained a copy of the unusual 3-page statement mentioned in the story. Access it here.

Posted by Marcia Oddi on Friday, September 29, 2006
Posted to Indiana Courts

Ind. Decisions - List of Court of Appeals NFP opinions issued for the week ending September 29, 2006

Here is the Indiana Clerk of the Court's list of the Disposition of Cases by Unpublished Memorandum Decision [the Not for Publication (NFP) opinions list] issued by the Court of Appeals for the week ending September 29, 2006.

Posted by Marcia Oddi on Friday, September 29, 2006
Posted to NFP Lists

Ind. Decisions - Transfer list for week ending September 29, 2006

Here is the Indiana Supreme Court's transfer list for the week ending September 29, 2006.

Over two and a half years of Transfer Lists: For other weekly transfer lists (going back to Feb. 2, 2004), check "Indiana Transfer Lists" under "Categories" below, or in the right column.

List of Cases Granted Transfer and Awaiting Decision. The ILB has constructed what will be a dynamic table of cases for which the Supreme Court has granted transfer and which thus are pending disposition. Access it here (updated every Sunday).

Posted by Marcia Oddi on Friday, September 29, 2006
Posted to Indiana Transfer Lists

Ind. Decisions - Supreme Court issues one today, a Disciplinary Action

In the Matter of Merrill "Scooter" Moores is a per curiam, 5-page opinion.

Oddly, this posted opinion is scanned, which means it cannot be quoted from without completely re-typing the material.

The footnote is noteworthy:

We include the respondent's nickname at his request to distinguish respondent from his father who is also an attorney and shares the same name.
The respondent is suspended for 30 days, with automatic reinstatement thereafter.

(Because it is scanned, I can not otherwise quote from the opinion here without a large investment of time.)

Posted by Marcia Oddi on Friday, September 29, 2006
Posted to Ind. Sup.Ct. Decisions

Ind. Decisions - Court of Appeals issues 5 today (and 20 NFP)

For publication opinions today (5):

Dennis Borders v. State of Indiana is a 4-page opinion by Judge May:

Dennis B. Borders appeals the sentence he agreed to receive in exchange for his pleas of guilty to four out of eleven counts pending against him. He argues the trial court erred when it sentenced him to consecutive habitual offender enhancements. Although this would otherwise be error, Borders received a significant benefit from his plea agreement, and we must accordingly affirm his sentence. * * *

In exchange for Borders’ pleas of guilty to Counts II, VIII, X and XI, the State dismissed three misdemeanor counts, two felonies, an infraction, and an habitual substance offender enhancement. Borders will not be heard to protest that he did not benefit from his plea agreement, even if his sentence was one the trial court could not have otherwise imposed. Affirmed.

Troutwine Estates, et al v. Comsub Design and Engineering, Inc. is a 23-page opinion by Judge Robb, which begins with this summary:
Troutwine Estates Development Company, L.L.C. (“Troutwine”), Daniel Jordan (“Jordan”), Michael D. Jordan, and Mastermark, Inc. (“Mastermark” and collectively the “Developers”), appeal after a bench trial in which the trial court awarded a judgment in favor of ComSub Design and Engineering, Inc. (“ComSub”), in the amount of $72,151.00 for services ComSub provided. The Developers also appeal the trial court’s ruling against their counterclaim for professional negligence by ComSub. ComSub cross-appeals, alleging that the trial court improperly limited its recovery.

Quantum meruit may be applied to prevent unjust enrichment where no contract exists. We therefore affirm the trial court’s judgment in favor of ComSub for services it provided. The Indiana Business Flexibility Act extends liability protection to individuals involved with a limited liability company. In a matter of apparent first impression for this state, we reverse and remand for the trial court to make findings of fact and conclusions thereon regarding derogation of the individual liability protection of Jordan, Michael D. Jordan, and Mastermark for the debts and obligations of Troutwine, and to modify its judgment as necessary. With regard to the Developers’ counterclaim for professional negligence, the trial court did not abuse its discretion when it excluded expert testimony and photographs offered by the Developers. Lastly, we conclude that the trial court improperly limited its judgment in favor of ComSub when it deducted an amount to prevent double recovery and did not grant prejudgment interest. Consequently, we affirm in part, reverse in part, and remand for further proceedings with regard to assignment of personal liability, as well as adjustment of the amount to which ComSub is entitled in damages.

Mario McCann v. State of Indiana is a 20-page opinion by Judge Crone, including a separate concurring opinion beginning on page 18. The opinion begins:
Mario McCann appeals the denial of his petition for post-conviction relief. We affirm in part, reverse in part, and remand.

Issues. We restate McCann’s issues as follows: I. Whether trial counsel was ineffective in failing to object to the trial court’s instruction on attempted murder and tender a correct instruction; and II. Whether appellate counsel was ineffective in failing to raise a double jeopardy argument regarding McCann’s convictions and sentences for attempted murder and class A felony burglary.

In Mark Clarke v. State of Indiana, a 13-page opinion, Judge Sullivan writes:
Appellant, Mark Clarke, brings this interlocutory appeal challenging the trial court’s denial of his motion to suppress. Upon appeal, Clarke presents three issues for our review which we consolidate and restate as: whether his right to be secure from unreasonable search and seizure as guaranteed by the Fourth Amendment of the United States Constitution and Article 1, Section 11 of the Indiana Constitution was violated. We reverse and remand. * * *

We therefore conclude that the evidence seized as a result of the search of Clarke’s car must be suppressed as “fruit of the poisonous tree.”

In Mollissa Gheae, et al v. Founders Insurance Co., an 8-page opinion, Judge Najam concludes:
We conclude that the Named Operator Exclusion in Gheae’s policy does not contravene the Uninsured Motorist Act. The Act does not require UM coverage here because the losses arose as the result of a hit-and-run accident. Moreover, application of the Named Operator Exclusion eliminates liability coverage under the policy and, as a result, UM coverage is not required under the Act. Because the Act does not mandate UM coverage on the facts presented, Appellants’ claim that the Named Operator Exclusion violates the Act is without merit. Thus, we hold that the trial court did not err when it granted summary judgment in favor of Founders.
NFP civil opinions today (7):

In the Matter of S.K., Debbra Hartung v. Starke Co. Dept. of Child Services (NFP)

Account Recovery v. Christina Zimmerman (NFP)

Wendy Jean Bradbury v. St. Joseph Co. Office of Family & Children (NFP)

Esther and Brian Wilhoite v. Madison Co. Office of Family & Children (NFP)

Daniel Cook v. Stephanie Cook (NFP)

Town of Dyer, et al v. Rueth Development Co., LLC (NFP)

Fremont Investment & Loan, and Erma Crumpton v. LaSalle National Bank (NFP)

NFP criminal opinions today (13) (link to cases):

Michael Watkins v. State of Indiana (NFP)

Dacia Ward v. State of Indiana (NFP)

Gary K. Fields v. State of Indiana (NFP)

David E. Hawes v. State of Indiana (NFP)

Eric Wilson v. State of Indiana (NFP)

Willie B. Walton v. State of Indiana (NFP)

Kahteith Moesley v. State of Indiana (NFP)

Clarence Slone v. State of Indiana (NFP)

Norman Douglas Wells v. State of Indiana (NFP)

Steven Sims v. State of Indiana (NFP)

Andrew Brian Steen v. State of Indiana (NFP)

Joseph Rhone v. State of Indiana (NFP)

Randy Vaught v. State of Indiana (NFP)

Posted by Marcia Oddi on Friday, September 29, 2006
Posted to Ind. App.Ct. Decisions

Ind. Courts - Gov. Daniels appoints St. Joseph Superior Court Judge

Here is the press release:

INDIANAPOLIS (September 29, 2006) – Governor Mitch Daniels today announced the appointment of Jane Woodward Miller of South Bend as St. Joseph Superior Court judge. She succeeds Judge William H. Albright who is resigning effective September 30.

Miller currently serves as adjunct professor at the University of Notre Dame Law School. Prior to that, she served as magistrate in the St. Joseph Probate Court and as a deputy prosecutor in St. Joseph County. She also has worked in private practice at the firm of Miller & Miller.

“The nominating commission in St. Joseph County sent me five terrific candidates, all of whom could and would serve well,” Daniels said. “Jane Miller is especially qualified, and I’m confident she will bring a judicial temperament to the bench that is fair and impartial.”

While in private practice, Miller worked to establish the Court Appointed Special Advocate (CASA) program in St. Joseph County. She also helped create the Kids’ Court program through the Child Abuse Services, Investigation & Education (CASIE) Center. She is currently the coach of the South Bend Adams High School mock trial team.

“I’m honored and humbled to have the governor’s confidence and am grateful for this opportunity to serve the citizens of St. Joseph County,” said Miller.

Miller earned her undergraduate degree from Indiana University-Bloomington and her law degree from the University of Notre Dame. She was among five people nominated for the position by the St. Joseph County Judicial Nominating Commission. The names were submitted to the governor on September 11.

For background, see this ILB entry from Sept. 12, titled "Five candidates named for vacancy on St. Joseph Superior Court."

Posted by Marcia Oddi on Friday, September 29, 2006
Posted to Indiana Courts

Courts - More on: An end to secret dockets in Florida?

This ILB entry from Sept. 10 contained a quote from the St. Petersburg Times:

When state Supreme Court Chief Justice Fred Lewis heard that court cases were being kept off the public docket in jurisdictions around Florida, his response was one of shock. "I almost swallowed my tongue," Lewis told the Miami Herald.
Since then, numerous additional cases have turned up. The Palm Beach Post reported yesterday, in a story I picked up thanks to the Kentucky Divorce Law Journal:
DELRAY BEACH — The divorce of Leslie Alexander, billionaire owner of the Houston Rockets basketball team, is one of a handful of local divorces sealed and excised from public view for years as if it never even existed.

In 2003, Alexander split with wife Nanci, after agreeing to pay her $150 million. The couple asked that their entire divorce file be sealed, and a senior circuit judge, Allen Kornblum, obliged.

The order stood until last week when another circuit court judge, Art Wroble, ruled it was sealed improperly and ordered the Alexanders' divorce opened.

The ruling comes in the wake of reports about supersealed cases being kept around Florida, including divorces and civil suits of the rich and connected -ó contrary to the state's public records law and the spirit of openness at every courthouse door. The chief judge of Florida, Fred Lewis, has said he about swallowed his tongue when he heard the reports and is acting swiftly to change things. * * *

Florida judges can legally seal sensitive material, such as financial or medical information, but not entire divorce files and not without some kind of public notice, which did not happen in the Alexanders' case. * * *

It is unclear exactly what Judge Kornblum accepted as a the legal reason to seal the file.

Kornblum is deceased. And the key pieces of paper explaining such decisions are now missing from the public file.

"It's highly unusual," said the chief guardian of the court records, Clerk and Comptroller Sharon Bock. "Whenever a file or document is missing it's of great concern to us."

Bock said "search protocols" are underway trying to find the missing materials. She speculated they may be in attorneys' files.

Weissman said he was surprised the Alexander divorce was kept entirely out of public view.

Before the unsealing of the divorces, if a person entered the case number or the names of the parties, the clerk's computer system would indicate no case existed. The case numbers and names have since been restored.

Palm Beach County's secret dockets pale in comparison to those of Broward County. A Miami Herald investigation there this year revealed more than 400 cases kept on a secret docket in Broward County, including dozens of divorces and civil suits involving politicians, judges and lawyers.

Chief Judge Kroll said she soon expects directives from the Florida Supreme Court about sealing procedures. The high court is considering a dramatic and swift response: possibly requiring judges to hold hearings and give advance public notice before sealing a court case.

In the nascent proposals, judges around the state would have to explain in writing what information in a sealed court case is being kept from the public.

This recalls the Orange County casino case earlier this year, where an entire suit had been placed under seal, including the docket entries, until an enterprising reporter broke the story.

Posted by Marcia Oddi on Friday, September 29, 2006
Posted to Courts in general

Thursday, September 28, 2006

Ind. Courts - More on: Judge Ridlen rules in Leo Burns' ballot battle for Cass County Circuit Court Judge

Two stories today from the Logansport Pharos-Tribune on the "Leo Burns' ballot battle."

First, a story headed "State appealing Ridlen decision on Leo Burns," which reports:

The candidacy of a Cass Circuit Court candidate is on hold again.

Attorneys with the Indiana Election Division of the Secretary of State’s Office have filed an action with the Indiana Court of Appeals to stay a decision by Cass Circuit Judge Julian Ridlen. Last Friday, Ridlen issued a permanent injunction to place Leo Burns on the Nov. 7 ballot. * * *

Burns, who was selected to fill the vacancy on the November ballot after the May primary, was not certified by the state because Democrat County Chair Matt Meagher did not file one of the notices necessary to place his name on the ballot. Meagher has taken full responsibility for the filing error.

Then, a later story today, published at 12:12 pm, titled "Cass judge candidate will be on ballot".
The name of Logansport attorney Leo Burns will be on the ballot in the Nov. 7 election in Cass County.

He learned this morning the state has ordered Clerk Linda Crimmins to place his name on ballots pending the outcome of a case filed by the Indiana Election Division against his candidacy. That case is pending in the Indiana Court of Appeals.

For background, see this ILB entry from Sept. 25th.

Posted by Marcia Oddi on Thursday, September 28, 2006
Posted to Indiana Courts

Ind. Decisions - Court of Appeals issues 1 today (and 14 NFP)

For publication opinions today (1):

In Thomas E. Starks and Herman C. Price v. Village Green Apartments, an 18-page opinion (with a dissent beginning on p. 16), Judge Friedlander writes:

Thomas E. Starks and Herman C. Price (Lessees) appeal a grant of summary judgment in favor of Village Green Apartments (Village Green) and the denial of their cross-motion for summary judgment in Village Green’s lawsuit to recover damages stemming from the breach of an apartment lease.

Lessees present the following restated issues for review: 1. Did the trial court err in basing its ruling on briefs submitted by Village Green that had been stricken pursuant to Lessees’ motion? 2. Did the trial court err in granting Village Green’s motion for summary judgment and in denying Lessees’ cross-motion for summary judgment? We reverse and remand with instructions. * * *

The trial court correctly granted Lessees’ motion to strike, but was free to make a ruling supported by the law and the materials properly before it, regardless whether that ruling included rationale consistent with arguments made by Village Green in stricken material. Accordingly, we proceed to the merits of the ruling in favor of Village Green. * * *

“The failure to comply with the notice of damages requirement constitutes an agreement by the landlord that no damages are due.” Mileusnich v. Novogroder Co., Inc., 643 N.E.2d 937, 941 (Ind. Ct. App. 1994). As a result, the tenant is entitled to return of the entire security deposit and reasonable attorney fees, which must be determined upon remand. Mileusnich v. Novogroder Co., Inc., 643 N.E.2d 937. Moreover, a landlord must comply with the statutory notice requirement in order to preserve its right to recover the other damages to which it is entitled. Durf v. Molter, 839 N.E.2d 1208 (Ind. Ct. App. 2005). As we have explained, “[t]he matter of the security deposit refund, if any, should be resolved first, and is a prerequisite for pursuing claims for other damages in excess of the security deposit, or not addressed in Ind.Code § 32-31-3-13. If the required notice is not given, the landlord has implicitly agreed that there are no other damages to collect.” Id. at 1211. As a result, Village Green not only must return Lessees’ security deposit in full, but it is also foreclosed from recovering unpaid rent. Judgment reversed and remanded for proceedings consistent with this opinion.

MAY, J., concurs.
CRONE, J., dissenting as to Issue 2 with separate opinion. [which reads in part]

The majority’s conclusion renders Indiana Code Section 32-31-3-12(c) meaningless and creates a manifestly unreasonable result. I do not believe that a landlord’s failure to give a tenant proper notice of damages for which a security deposit may be used precludes the landlord from recovering unpaid rent in excess of the amount of the security deposit.

NFP civil opinions today (1):

Termination of the Parent Child Relationship of K.G., B.R., N.R., and A.R., Minor Children v. Harrison County Department of Child Services (NFP) - a 15-page opinion that concludes: "There is insufficient evidence to support the termination of Rainbolt’s parental rights. We reverse."

NFP criminal opinions today (13) (link to cases):

David Keough v. State of Indiana (NFP)

Ronald L. Michael v. State of Indiana (NFP)

State of Indiana v. Robert Sherman, Jr. (NFP)

David Thomas v. State of Indiana (NFP) - see 9/30/06 ILB entry here.

Lonnie K. Stephens v. State of Indiana (NFP)

Andre Williams v. State of Indiana (NFP)

David J. Gardner v. State of Indiana (NFP)

James L. Chestnut v. State of Indiana (NFP)

Sheldon Swartzentruber v. State of Indiana (NFP)

Clarence Lucas v. State of Indiana (NFP)

Marcus T. Randall v. State of Indiana (NFP)

Troy Noe v. State of Indiana (NFP)

Todd A. Bebout v. State of Indiana (NFP)

Posted by Marcia Oddi on Thursday, September 28, 2006
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Supreme Court posts one today, dated Sept. 27

In David Lee Helms, Jr. and Darlene R. Helms v. Carmel High School Vocational Building Trades Corporation, a 3-page, 5-0 opinion, Justice Boehm writes:

David Helms, Jr., was injured while working as an employee of a subcontractor on a resi-dential construction project. Under Bagley v. Insight Communications Co., 658 N.E.2d 584 (Ind. 1995), a principal (the general contractor) is not liable for the negligence of an independent contractor (the sub) unless one of five exceptions applies. * * *

As the Court of Appeals noted, however, our opinion (by this author) in Roberts went on to state that “in the absence of negligent selection of the contractor, an employee of the contractor has no claim against the principal based solely on the five exceptions to the general rule of nonliability for acts of the contractor.” Id. In view of this language, the Court of Appeals reasonably concluded that Roberts ruled out a principal’s liability under the second exception (contractual or legal duty) on which Helms relies. Helms, 844 N.E.2d at 566. The language from Roberts is overbroad. There is no reason why a contractual or legal obligation of the principal cannot support liability. The holding in Roberts — that the exceptions do not support liability to an employee of an independent contractor — should have been, and hereby is, confined to the first and fourth exceptions at issue in that case.

As already noted, we agree with the Court of Appeals that the principal in this case had no contractual or legal obligation to Helms, and for that reason affirm the judgment of the trial court.

Posted by Marcia Oddi on Thursday, September 28, 2006
Posted to Ind. Sup.Ct. Decisions

Ind. Decisions - More on: "Appeals court throws out conviction"

Updating this ILB entry from Monday, about a Court of Appeals ruling Sept. 19th in the case of Joseph Stellwag v. State of Indiana, Seth Slabaugh of the Muncie StarPress reports today:

MUNCIE -- Delaware Circuit Court 5 Judge Wayne Lennington is blaming obsolete court recording equipment for an appeals court ruling that entitles a criminal suspect to a new jury trial.

County council this week appropriated $16,000 to help fund a new digital, computerized recording system for Lennington's court, to replace an obsolete, cassette-recording system for which parts are no longer available.

"Everybody I'm sure read in the newspaper where the appellate court slapped me," Lennington told council members. "I had told this ... defendant not to talk to his attorney so that the jury could hear him. We went back in and started, and this woman took the stand, and he said in a voice everyone could hear, 'She's a liar.'

"So I immediately blew my top and really got on him, and that's how I got reversed. The part of this you don't understand is, when the court reporter was taking the record from the courtroom as it was recorded, she could not hear (the defendant's comment). It wasn't picked up, so I got whacked for it. This is going to cure that."

The Indiana Court of Appeals ruled last week that accused batterer Joseph Stellwag, who was tried in Lennington's court on Aug. 16, 2005, was entitled to a new trial. Stellwag contended that Lennington made remarks throughout the trial that established that the judge was partial, thus denying him a fair trial. * * *

Trial judges must be given latitude to run their courtrooms and maintain discipline and control of the trial, the appeals court ruled.

However, Lennington crossed the line of impartiality when he admonished the defendant in front of the jury rather than first excusing the jury, the appellate court ruled. The ruling also cited other incidents in which Lennington expressed partiality during the trial.

Posted by Marcia Oddi on Thursday, September 28, 2006
Posted to Ind. App.Ct. Decisions

Ind. Courts - South Bend Tribune series continues today

Jeff Parrot of the South Bend Tribune writes again today on sentencing in Indiana. Some quotes from his article:

Variation in prison sentencing among counties, as revealed through a recent Tribune analysis of court records, troubles St. Joseph County's chief judge, but he doesn't know what to do about it.

Seeking uniformity in sentencing for similar crimes under similar circumstances, the federal government and at least 11 states, including Michigan, have imposed precise guidelines that judges use to calculate sentences. Numbers are assigned to a list of factors, such as criminal history; the numbers are entered into a grid; and a final score sets the length of the prison term.

Judge John Marnocha thinks that approach takes too much discretion away from judges. "The judge needs to look at each case individually," Marnocha said. "On the other hand, I don't think you ought to have defendants who are happy they have been assigned to a particular judge or not happy they have been assigned to another judge, because they know that judge sentences more.

"I would like to see a little more consistency. This is something that I think will be an issue in times to come."

But Indiana has moved in the opposite direction. Under a little-noticed 2005 state law, judges enjoy more discretion than ever in sentencing.

In January of that year, the U.S. Supreme Court, in Blakely vs. Washington, ruled that judges violate a person's Sixth Amendment right to a jury trial when they lengthen prison terms by citing facts -- other than the defendant's criminal history -- that are not proven to a jury.

In Indiana, since the state in 1977 overhauled its sentencing laws in an attempt to achieve more uniformity, judges had started with a presumptive sentence set by the legislature and could cite aggravating or mitigating factors in adding or subtracting years. The Blakely ruling deemed that system unconstitutional.

Fearing a deluge of appeals from earlier sentences, the Indiana General Assembly scrambled to comply with Blakely. On March 1, 2005, the Senate unanimously passed a bill that called for a post-conviction jury trial for sentencing purposes in cases when the judge wanted to depart, either upward or downward, from the "advisory" sentence determined by the legislature.

Eight days later, the Indiana Supreme Court issued a ruling adopting the substance of the bill's plan calling for the two-step trial process.

But two weeks after that, the Senate amended the bill to scrap the sentencing jury trial. Instead, Indiana would comply with the Blakely ruling by letting judges impose any sentence they want, without explanation of aggravators or mitigators, as long as it fell within the range of years under state law for the crime. Gov. Mitch Daniels signed the bill into law.

Michael Limrick, an Indianapolis civil litigation attorney who became interested in constitutional issues while clerking for an Indiana Supreme Court justice in 2003, has been among the more vocal critics of the legislature's Blakely fix.

"This change begs the question of whether the Indiana General Assembly has turned its back on the oft-repeated goal of bringing uniformity to criminal sentencing," Limrick wrote earlier this year in Res Gestae, an Indiana State Bar Association publication. "The unequivocal answer is yes."

Not so, says state Sen. John Broden, D-South Bend, who, like every other lawmaker, voted for the bill.

"That's sort of a knee-jerk reaction to the potential for lack of uniformity," said Broden, an attorney who does not practice criminal law. "But frankly, I'm not a proponent of (sentencing guidelines). I don't favor turning judges into robots when it comes to sentencing."

Broden, ranking minority member on the Senate Corrections, Criminal and Civil Matters Committee, said legislators did the best they could in the time they had.

"We had an unconstitutional sentencing structure under Blakely," Broden said. "We had to do something. I thought we did a good job taking action."

Prosecutors testified in support of the bill. That didn't surprise Limrick, although judges now also have more discretion to impose sentences lighter than what prosecutors deem appropriate.

"The discretionary door swings both ways," Limrick said. "But the common perception is that no judge ever lost an election by giving out too many maximum sentences, while some do by showing too much leniency."

St. Joseph County judges face little election pressure. They, along with judges in Lake County, are appointed by the governor and come up for a "yes" or "no" retention vote every six years. But there is wide consensus that voters know little about whether St. Joseph County judges are performing their jobs well.

The Tribune has a number of other stories today, including conversations with St. Joseph Chief Judge John Marnocha, and Superior Court Judge Jerome Frese and Superior Court Judge Roland W. Chamblee Jr.

Here is a list of links to all the stories in the series.

Posted by Marcia Oddi on Thursday, September 28, 2006
Posted to Indiana Courts

Wednesday, September 27, 2006

Ind. Courts - Resources for the 2006 Indiana Appellate Judicial Retention Election

The ILB has begun to put together its resource page for the 2006 judicial retention election.

What is up so far is only a first step, much remains to be done, and there is little time remaining to do it.

I'm making it public now so that search engines can begin to learn its location.

Posted by Marcia Oddi on Wednesday, September 27, 2006
Posted to Indiana Courts

Ind. Courts - Fort Wayne prosecutor quoted in Wall Street Journal

Mitch Harper of Fort Wayne Observed does some nice reporting today - first he picks up the front-page WSJ story about a "new approach to drug dealers":

Allen County Prosecutor Karen Richards is quoted in today's edition of the Wall Street Journal in an article on a new approach to drug dealers which is drawing national interest.

She is direct - and very quotable - in calling the new approach "foolishness."

Then, this afternoon, Harper posted quotes from an interview he conducted with Prosecutor Richards, "expanding on the views she expressed in today's page one story in the Wall Street Journal." In addition, Harper provides a link to an MP3 of the entire interview.

Posted by Marcia Oddi on Wednesday, September 27, 2006
Posted to Indiana Courts

Ind. Courts - Long-running dispute between Judge and Clerk in Martin County continues

The ILB has had several entries about the long-running dispute in Martin County between Judge Joseph Howell and the County Clerk including these: 4/6/06 ("New clerk may cost Martin County"); 5/8/06 (""Judge, clerk’s staff at odds in Martin County"); 6/8/06 ("Martin County judge reportedly jails county clerk"); and 6/9/06 ("Martin County judge jails county clerk").

Today Nate Smith of the Washington Times-Herald reports:

SHOALS — Martin County Commissioners were presented with a conflict of interest statement from county Clerk John Hunt and his attorney, Fremont Pickett at Tuesday’s meeting.

In the statement filed on Sept. 19, Hunt said Judge Joseph Howell “has entered his office on numerous occasions and intruded upon the duties of the Clerk and the Clerk’s personnel.” * * *

The statement was in response to an incident on June 7 where Judge Howell ordered Hunt arrested on charges of contempt of court. The arrest stemmed from problems the clerk’s office was having over bond money being returned. The original citation charged that Hunt “failed to release and transfer bond proceeds as directed in separate orders in a timely manner.”

Hunt spent about two and a half hours in jail. At that time, Judge Howell said the clerk’s office was making it impossible for the court to function. Since March 24, few if any cases had been settled and bond money returned due to the backlog in the clerk’s office, Howell said in June.

The story continues with this background:
Hunt was appointed clerk in January following the resignation of clerk Debbie Christmas. Following his appointment by a caucus of Democrat Precinct Committee persons, former Chief Deputy Clerk Linda Nolan filed suit charging the caucus was improperly conducted. On March 24, the court decided in Hunt’s favor allowing him to take over an office for which he had no experience and from which Nolan and the rest of the staff resigned. Since his appointment, Judge Howell had been notifying the county council, commissioners and Hunt that the clerk’s office wasn’t up to date fulfilling their duties as clerk of the courts.

The problem came to a head in June when Howell discovered that a former defendant who had posted a $750 bond upon her arrest, had not yet received the money she had coming to her after court and probation costs were subtracted.

Howell signed the order for her to receive her monies on May 15, and on May 31 Hunt signed a certification that his office had fully complied with Howell’s orders and her money returned. It hadn’t been returned however, and Sonya D. Holt called Howell’s office, complaining about not receiving her remaining bond money.

In investigating what had happened, Howell asked Hunt and his staff to come downstairs to the courtroom, and after charging the clerk, Hunt was arrested by Martin County Sheriff Tony Dant and incarcerated in the Martin County Security Center.

Howell also cited Hunt with falsely certifying he’d reimbursed Holt when she said the office had not yet returned her money. But after initially ordering Hunt to spend 48 hours in jail, he amended the order to serving two hours.

Because County Attorney David Lett was not at Tuesday’s meeting, the commissioners acted on his advice not to discuss the order.

The ILB did some original reporting on this situation last month and learned that the current, appointed clerk:
was beaten in the May primary, but because of the timetable will serve all 2007. [It won't be until] Jan. 2008, when the new clerk, a former deputy, will take over.
[More] Here is information from the Indiana Courts website about Martin County -- it shows there is only one court and one judge in Martin County. The ILB has also received confirmation that the information it obtained last month is correct. A reader writes:
The position of Clerk of the Martin Circuit Court has been a "hold over" office for many, many years. As a result, although elected in November, 2002, Mrs, Christmas' term actually ran from January 1, 2004, through December 31, 2007.

Mr. Hunt was appointed as Clerk Pro Tempore and will serve the remainder of the term to which Debra Christmas was elected during the November 2002 general election. [The General Assembly recently passed a law to put this election back on track, as a result] the person who is elected Clerk this November will serve a three-year term. The term will run from January 1, 2008, through December 31, 2010.

Look back again at the ILB's initial, April 4, 2006 report to understand how difficult the Martin County situation was at that time. The more recent reports indicate that the difficulties continue.

Posted by Marcia Oddi on Wednesday, September 27, 2006
Posted to Indiana Courts

Ind. Courts - Ind. Courts - Martin County receives grant for courthouse security

Nate Smith of the Washington Times Herald reports today:

SHOALS - Security will be tighter at the Martin County Courthouse because of a $49,000 grant announced during Tuesday's Martin County
Commissioners meeting.

Circuit Judge Joseph Howell received word Tuesday that the county was
awarded the grant through the state Department of Homeland Security. * * * "It is good that Martin County is getting ahead of what will be mandatory for all courthouses by the Indiana Supreme Court," Howell said after the meeting.

Commissioner President Mike Dant said after the meeting he was glad to see
improvements to the courthouse and that the county will not pay for the

One stipulation for the grant was the commissioners must get construction
rolling by the Oct. 31 deadline for installation.

Commissioners reviewed three bids for the cameras and metal detector and
awarded the bid to Barclay Group, an Anderson-based security company. In
the bid, 20 cameras will be installed in the hallways and outside the
courthouse. A live feed will link the cameras to the sheriff's department.

"The public will not have to worry (about the camera coverage)," Howell
said. "It's about the same type of coverage you find at grocery stores."
Cameras will not be installed in the offices of county officeholders. A
decision on where to put the metal detector has not been made.

I looked back and was surprised to find that there is now quite a long list of ILB entries on courthouse security efforts.

Posted by Marcia Oddi on Wednesday, September 27, 2006
Posted to Indiana Courts

Ind. Law - "Emergency" rulemaking at the Department of Natural Resources

My thoughts. A properly promulgated administrative rule in Indiana has the force and effect of law. The law governing state agency rulemaking, IC 4-22-2, provides for public notice and comment before a rule may be adopted, followed by review and approval by the attorney general and the governor, and generally a period of at least 30 days thereafter before the rule or rule change goes into operation.

There is an exception to this process. IC 4-22-2-37.1 allows for the temporary adoption of "emergency" rules in specific circumstances. None of the safeguards described above apply, the agency head simply files the new rule or rule change, and it is law, at least temporarily.

IC 4-22-2-37.1(a)(2) makes this emergency exception applicable to "An action taken by the director of the department of natural resources under IC 14-22-2-6(d) or IC 14-22-6-13."

Normally, an emergency rule expires 90 days after adoption and may only be extended once - see IC 4-22-2-37.1(g). I am familiar with IDEM's use of emergency rulemaking, it is used rarely and is generally limited to cases where a normal notice and comment rulemaking is underway, but a parallel emergency process is used to put the rule into operation during the interim. I do not recall it ever being used in the case of a controversial rule, generally what is involved is a rule change mandated by federal law.

I was surprised today when I looked at the emergency rulemaking process to see how the DNR chief could by his signature alone put a rule into place that would be effective for, not 90 days, but an entire year.

This authority is not located in IC 4-22-2-37.1 or anywhere else in the statute that covers rulemaking by state agencies. Rather, it is found in the department of natural resources law, at IC 14-10-2-5, which states:

Sec. 5. (a) The department may adopt emergency rules under IC 4-22-2-37.1 to carry out the duties of the department under the following: * * *

(b) A rule adopted under subsection (a) expires not later than one (1) year after the rule is accepted for filing by the publisher of the Indiana Register.

And again, "adoption" in this case requires nothing more than the signature of the DNR chief.

None of this explains, however, why it was felt necessary in the case of the new rule allowing handguns in state parks to treat this rule change as an "emergency", thus circumventing the entire public rulemaking process. Unless that circumvention itself was the purpose.

For background, see "DNR lifts ban on handguns in state parks", here.

Posted by Marcia Oddi on Wednesday, September 27, 2006
Posted to Administrative Law | Environment | Indiana Government | Indiana Law

Ind. Courts - An observation on the NYT series on local courts

The NY Times has just concluded a very lengthy three-part series on New York State’s town and village courts, finding a long trail of judicial abuses and errors along the way. (Here is the link to the third part, which will lead you back to all three parts.) A quote:

Although they are key institutions of justice in more than 1,000 small towns and suburbs across New York, trying misdemeanor cases and lawsuits, a vast majority of the justices who run them are not lawyers, and receive only a few days’ legal training. The justices are often elected in low-turnout races, keep few records and operate largely without supervision — leaving a long trail of injustices and mangled rulings.
Well, what about Indiana? This excerpt from the Indiana Courts website explains that in Indiana:
City and town courts may be created by local ordinance (local law). Currently there are forty-eight city courts and twenty-seven town courts in Indiana. Plainfield, Avon, Carmel, and Jamestown are just a few examples of cities and towns that have city/town courts. City and town courts handle minor offenses such as violations of city ordinances (laws), misdemeanors, and infractions. These courts commonly handle traffic matters. City and town courts are not courts of record (their proceedings are not recorded), so appeals from city and town courts go to the circuit or superior courts and are decided as if they have never been to court before. Did you know that with some exceptions, the city and town court judges are not required to be attorneys?
How comparable is Indiana's situation to that of New York?

Posted by Marcia Oddi on Wednesday, September 27, 2006
Posted to Indiana Courts

Ind. Decisions - 7th Circuit issues two Indiana decisions today

In USA v. Harris, Antone C. (SD Ind., Sarah Evans Barker, Judge), a 13-page opinion, Circuit Judge Williams writes:

When a criminal defendant makes a substantial preliminary showing that the warrant to search his property was procured by intentional or reckless misrepresentations in the warrant affidavit, and such statements were necessary to the finding of probable cause, the Fourth Amendment entitles the defendant to a hearing to challenge the constitutionality of the search. Franks v. Delaware, 438 U.S. 154, 155-56 (1978). Antone Harris is serving a twenty-year prison sentence for possessing with intent to distribute more than fifty grams of cocaine base. In this appeal, Harris claims that the district court erred when it denied his request for a Franks hearing. Because Harris has made a substantial preliminary showing that the search of his home was unlawful pursuant to the Supreme Court’s decision in Franks, we conclude that the Fourth Amendment entitles him to a hearing to challenge the veracity of the affidavit that police used to procure the search warrant. Therefore, we reverse the judgment of the district court.

In Stinnett, David A. v LaPlante, R. S (SD Ind., Richard L. Young, Judge), a 12-page opinion, Circuit Judge Stykes writes:

In 1995 David Stinnett was diagnosed as suffering from depression and as a result has been collecting substantial monthly benefits from two different policies of long-term disability insurance. In 1996, and again in 1997, the Internal Revenue Service made assessments against Stinnett for unpaid federal income taxes. In May 2000 Stinnett filed for bankruptcy under Chapter 7 of the United States Bankruptcy Code, and a dispute soon erupted between Stinnett, the Bankruptcy Trustee, and the IRS as to entitlement to the disability insurance payments. In several appeals taken from rulings by the bankruptcy court, the district court concluded that the disability payments are property of the bankruptcy estate, that the government’s tax lien attached to these payments, and that Stinnett is entitled to an exemption of $6000 per month under Indiana law. Stinnett has filed two separate appeals from the orders of the district court, which we have consolidated for decision. We agree with the district court’s conclusion that the disability payments are property of the bankruptcy estate and also that Stinnett is entitled to exempt only $6000—not 100%—of the disability payments. Because the disability payments are property of the bankruptcy estate, Stinnett lacks standing to raise the tax lien issue on appeal.

Accordingly, in appeal No. 05-1335, the order of the district court is AFFIRMED. Appeal No. 05-1733 is DISMISSED for lack of jurisdiction.

Posted by Marcia Oddi on Wednesday, September 27, 2006
Posted to Ind. (7th Cir.) Decisions

Ind. Decisions - (so far today) Court of Appeals issues 0 today (and 9 NFP)

For publication opinions today (0):

NFP civil opinions today (0):

NFP criminal opinions today (9) (link to cases):

Lonnie K. Stephens v. State of Indiana (NFP)

Andre Williams v. State of Indiana (NFP)

David J. Gardner v. State of Indiana (NFP)

James L. Chestnut v. State of Indiana (NFP)

Troy Noe v. State of Indiana (NFP)

Sheldon Swartzentruber v. State of Indiana (NFP)

Clarence Lucas v. State of Indiana (NFP)

Marcus T. Randall v. State of Indiana (NFP)

Todd A. Bebout v. State of Indiana (NFP)

Posted by Marcia Oddi on Wednesday, September 27, 2006
Posted to Ind. App.Ct. Decisions

Law - Part III of NY Times series on Justice-of-the-Peace-type courts in NY State

Yesterday's Part II is here. Today is the third and final part of this lengthy "yearlong investigation by The New York Times of the life and history of New York State’s town and village courts, [which] found a long trail of judicial abuses and errors — and of governmental failure to curb them." Today's story begins:

“A farce in these days,” Gov. Alfred E. Smith pronounced New York State’s town and village courts in 1926.

“An outworn system,” said his successor, Franklin D. Roosevelt, not long after a state commission called it “a feeble office respected by no one.” A few years after that, another commission said the local court system had “lost all contact with reality.”

In all, at least nine commissions, conferences or other state bodies — including representatives of both major political parties and all three branches of government — have denounced the local courts over the last century, joined by at least two governors and several senior judges.

Their language has often been blistering, and their point has been the same: These courts, with their often primitive trappings and amateur judges, are an anachronism that desperately needs to be overhauled or discarded.

Although they are key institutions of justice in more than 1,000 small towns and suburbs across New York, trying misdemeanor cases and lawsuits, a vast majority of the justices who run them are not lawyers, and receive only a few days’ legal training. The justices are often elected in low-turnout races, keep few records and operate largely without supervision — leaving a long trail of injustices and mangled rulings.

Yet these justice courts, as they are known, remain essentially as they were when New Yorkers started complaining nearly a century ago. In recent weeks, state officials have decided to take some steps to increase training, supervision and record-keeping. But the cries for any sweeping change have all but died out over the last few decades, even as the abuses have continued.

One way to understand why a much-criticized institution has come to seem so entrenched is to revisit three big battles over the justice courts. In each, the people seeking to change the system tried in a different arena: the Legislature, the voting booths and the higher courts. And each time, their defeat was so stinging that it effectively killed any further discussion there.

Posted by Marcia Oddi on Wednesday, September 27, 2006
Posted to Courts in general

Courts - Kentucky "Funeral protest law blocked "

Deborah Yetter of the Louisville Courier Journal reports:

A federal judge in Frankfort has temporarily barred Kentucky from enforcing a law that bans protests at military and other funerals, saying it appears to go too far in limiting free speech.

U.S. District Judge Karen K. Caldwell issued the order yesterday, saying parts of the law passed by the General Assembly this year limit "substantially more speech than is necessary" by banning any demonstration within 300 feet of a funeral and restricting comments and protest signs.

The law is aimed at a group from a Kansas church that travels around the country picketing military funerals -- claiming that soldiers' deaths are God's retribution for the nation's tolerance of homosexuality.

Caldwell's order doesn't say when she might issue a final ruling.

Posted by Marcia Oddi on Wednesday, September 27, 2006
Posted to Ind Fed D.Ct. Decisions

Ind. Decisions - "Judge rules prosecutor's review of client-lawyer calls was OK"

An AP story headlined "Judge rules prosecutor's review of client-lawyer calls was OK" appears in at least two papers today. Some quotes:

LAWRENCEBURG, Ind. -- A judge has ruled that a prosecutor did not engage in misconduct when he listened to recorded phone calls between a lawyer and a man convicted of the 1998 killings of a woman and three children.

Robert Bassett Jr. had claimed in his appeal of his four murder convictions that Bartholomew County Prosecutor Bill Nash's review of the phone calls between him and his lawyer was unethical and affected the outcome of the trial.

Nash listened to phone calls between Bassett and lawyer Ross Thomas recorded while Bassett, 43, was in the Bartholomew County Jail. Phone calls placed by inmates at the jail are recorded, and they are informed of the recording by an automated voice.

Thomas said he will appeal Dearborn Circuit Judge James Humphrey's decision to the Indiana Supreme Court.

Nash said he was confident the judge would rule in his favor because he researched the law before listening to the taped conversations.

"I knew there would be eyebrows raised about a prosecutor listening to any phone calls between a defendant and his attorney," he said.

Posted by Marcia Oddi on Wednesday, September 27, 2006
Posted to Ind. Trial Ct. Decisions

Ind. Courts - South Bend Tribune series continues today

The South Bend Tribune's series, Judging the Judges, continues today with this story by Jeff Parrott, headlined "Judge evaluations help voters make informed choice." The story begins:

In Arizona, a state agency surveys people who work in or have had contact with the courts.

In Iowa, the state bar association polls attorneys across the state.

In the Indianapolis area, the Marion County Bar Association asks lawyers to evaluate judges -- even though judges there are popularly elected, meaning voters may already learn about them through the campaign process.

In each of those places, survey results are shared publicly, meaning you don't have to be a lawyer to know whether a judge is doing a decent job before voting him in or out on Election Day.

But in St. Joseph County, voters are on their own if they hope to make an informed decision on whether to keep a trial court judge on the bench.

The Indiana State Bar Association evaluates judges up for retention on the ballot, but only those in the state's highest courts: the Court of Appeals and Supreme Court, said association president Jim Riley, an Indianapolis attorney.

Such evaluations typically are only done in places where judges are appointed by the governor and then retained or rejected by voters at the end of each term -- a "merit selection" system operating only in St. Joseph and Lake counties in Indiana. The Indiana State Bar Association thinks it's up to county bar associations to evaluate trial court judges, Riley said.

However, the St. Joseph County Bar Association has not found a satisfactory way of doing it, its members say.

The local group tried evaluating judges once in 1990, but bar leaders had difficulty agreeing on the level of detail from the survey results that they should release publicly, recalls South Bend attorney Mitchell Heppenheimer, the group's treasurer.

"I remember going up to Barnes and Thornburg's office for hours with a bunch of people to discuss the results," said Heppenheimer, who coordinated the project. "It was such an onerous task, we didn't do it anymore."

He said attorneys hoped the evaluation would give judges feedback on their performance while also serving voters.

Chief Judge John Marnocha of St. Joseph County agreed that local bar leaders abandoned the 1990 effort as "sort of useless."

"It was tried one time, and they spent a lot of money to get this form, and then we found that number one, the questionnaire was too complicated, and number two, we had a lot of favorable and not favorable responses from people we knew never appeared in court," Marnocha said. "When you looked at all the numbers, everybody was about the same and it didn't really tell the public anything."

In a sort of honor system, such surveys typically ask respondents only to cast opinions if they have been directly involved in the judge's court.

But Marnocha said something more needs to be done to educate voters.

"I would like to see the bar association take a more active role in informing the public about judges," the judge said. "Whether that will happen or not I don't know."

Here is the website for the entire SBT series. At least one more story is planned, for tomorrow: "Should Indiana tighten its sentencing laws?"

Posted by Marcia Oddi on Wednesday, September 27, 2006
Posted to Indiana Courts

Ind. Decisions - "Justices hear med consent case tossed at trial level"

"Justices hear med consent case tossed at trial level" is the headline to a story today by Niki Kelly about an oral argument yesterday before the Indiana Supreme Court in the case of W. Ruth Mullins and Johnce Mullins, Jr. v. Parkview Hospital, Inc., et al. (Here is the now vacated Court of Appeals decision from 6/30/05.)

Kelly reports:

With attorneys arguing against both a battery and negligence claim, members of the Indiana Supreme Court on Tuesday found themselves wondering how to get justice for a Fort Wayne woman injured by a student in a botched medical procedure.

The five justices heard arguments in the case of W. Ruth Mullins, who sued after Larea VanHoey – a student at the University of Saint Francis – tore Mullins’ esophagus during a procedure at Parkview Hospital in 2000.

Mullins sued because several weeks before the procedure, her surgeon, Dr. Marvin E. Eastlund provided her with an informed consent document on which she indicated she did not want health care students in the operating room.

“Whose responsibility is it when a patient says they don’t want a learner to ensure that?” Chief Justice Randall T. Shepard asked. * * *

Mullins also signed a document from anesthesiologist Dr. Kathryn Carboneau that said only Carboneau or “a physician privileged to practice” anesthesia care would perform specified duties.

“Patients have the right to know what’s going to happen to them when they go into surgery,” said Fort Wayne attorney Sherrill W. Colvin, who represents Mullins.

The judge at the trial court level granted summary judgment for all the defendants in the case, essentially ending the suit without a trial. But the Indiana Court of Appeals last year said the case could go forward against the student, doctors and their employers.

Colvin is alleging battery against everyone involved instead of a more traditional negligence suit because it does not require expert testimony to prevail.

Justice Frank Sullivan Jr. said the definition of battery is when a person intends another person a harmful or offensive contact.

Colvin said battery fits because the student intentionally contacted Mullins via the intubation, which caused harm. But Sullivan argued that grammatically, the word harmful characterizes the intention – not the result.

Justice Theodore Boehm said under Colvin’s theory, every time a doctor made an error or mistake it would be considered battery.

Sullivan seemed sympathetic to VanHoey, saying she was doing as instructed by the doctors in the room and another hospital employee who was with her. He even suggested there could be a settlement if Mullins dropped the battery suit and attorneys for the defendants agreed to go to trial on negligence.

But the lawyers for the two doctors protested, saying Mullins’ own expert witness found no fault with the medical care given, which makes summary judgment appropriate.

The justices asked repeatedly why expert testimony was necessary, given the plain language of the informed consent documents.

But attorney Cal Miller said Eastlund’s consent form pertained only to his surgical procedure and not the anesthetic care. And attorney Milford Miller said Carboneau didn’t touch Mullins and therefore could not batter “by proxy.” They are the attorneys representing the respective physicians.

Justice Brent Dickson seemed frustrated by the finger-pointing, asking, “Why do we even bother with this informed consent? You’re suggesting the patient can be ignored.”

Listen to the entire oral argument here.

Posted by Marcia Oddi on Wednesday, September 27, 2006
Posted to Ind. Sup.Ct. Decisions

Tuesday, September 26, 2006

Ind. Courts - Hamilton County to hire second magistrate

The Noblesville Ledger reports today:

Hamilton County wants to hire a second magistrate to ease the caseload on its judges.

County commissioners voted 3-0 Monday to let the judges ask the state legislature to hire a magistrate.

Ollie Schierholz, the court administrator, said Hamilton County would eliminate a part-time court commissioner position to make room for the magistrate.

He said magistrates have more powers than court commissioners. Magistrates can hear trials just like a judge and their decisions stand on their own. Court commissioners preside over hearings and a judge must approve their decisions.

The county currently has six judges, although a seventh will begin hearing cases in 2007. The county also has one magistrate, one court commissioner and one part-time court commissioner.

Will Greenaway, who ran unsuccessfully for the Republican nomination for Superior Court 6 judge in May, is the part-time commissioner. If the state legislature approves a second magistrate for Hamilton County, the county's judges would appoint someone to fill the position.

The county paid Greenaway $34,346 in 2005. The state would pay for all but $5,000 of a magistrate's salary, so the county would save nearly $30,000.

Posted by Marcia Oddi on Tuesday, September 26, 2006
Posted to Indiana Courts

Ind. Decisions - Supreme Court issues two today

In William E. Hunter v. State of Indiana, a 4-page, 5-0 opinion, Justice Boehm writes:

Hunter argues that this sentence violated his Sixth Amendment rights under Blakely v. Washing-ton, 542 U.S. 296 (2004) because the trial court improperly enhanced his sentence based on an aggravator that was required to be found by a jury. Specifically, Hunter claims that as part of his “criminal history” the trial court improperly considered prior dismissed criminal charges to en-hance his sentence. * * * We need not address that issue because we conclude that we should exercise our authority under Article VII, Sections 4 and 6 of the Indiana Constitution and Indiana Appellate Rule 7(B) to revise the sentence to the presumptive (now advisory) four years. * * *

Hunter’s pre-sumptive sentence was doubled from four to eight years based on unrelated and relatively insignificant prior convictions. We conclude that neither the nature of the offense nor the character of the offender supports an enhanced sentence. Conclusion Hunter’s sentence is revised to a term of four years. We summarily affirm on all issues not addressed in this opinion. Ind. Appellate Rule 58(A)(2).

In Joseph Glotzbach, CPA v. Jacqueline L. Froman, an 8-page, 5-o opinion, Justice Boehm writes:
We hold that an employee whose injuries are covered by the Worker’s Compensation Act has no claim against the employer for spoliation of evidence related to that incident. The legislature is, of course, free to provide a different rule if it concludes otherwise. * * *

In the case at bar, the Court of Appeals perceived the principal issue as one of duty to preserve the evidence. The Court of Appeals therefore reviewed the three factors set forth in Webb v. Jarvis, 575 N.E.2d 992, 995 (Ind. 1991) to determine whether such a duty existed. Glotzbach, 827 N.E.2d at 109. After balancing the relationship between the parties, the reason-able foreseeability of harm to the person injured, and public policy concerns, the Court of Ap-peals found a “special relationship” between Midwest and Froman sufficient to distinguish the facts from those in Murphy and to recognize a duty on the part of Midwest to preserve the evidence from the explosion. Id. We disagree with this conclusion for the reasons detailed below and hold that existing case law and public policy dictate refusal to recognize an independent cause of action under the circumstances presented by this case. * * *

IOSHA’s instruction to retain the debris made no reference to the need to preserve the evidence for Froman’s use in private litigation. Otherwise stated, to the extent IOSHA’s request created any duty to preserve the evidence, it was a duty owed to IOSHA not to Froman or his Estate.

The Estate, citing again to Thompson, next argues that the foreseeability of harm caused by the failure to retain the pump supports the recognition of a duty in this case. * * * Darling was not collecting evidence when he gathered his equipment and the debris from the explosion site. Rather, he was cleaning up material already owned and possessed by Midwest. “Mere owner-ship of potential evidence, even with knowledge of its relevance to litigation, does not suffice to establish a duty to maintain such evidence.” * * *

Finally, and most importantly, as in Gribben we think the policy considerations are the controlling factor in refusing to recognize spoliation as a tort under these circumstances. * * * It is in the employer’s interest to preserve evidence that may aid in pursuing these subrogation rights against the manu-facturer.

The disadvantages we identified in first-party spoliation claims remain concerns as to third-party claims. * * * Without a strong showing of need, we should not impose an obligation to retain useless equipment indefinitely or to refrain from repairing equipment necessary to conduct the employer’s business.

In sum, we conclude that the problems inherent in recognizing spoliation claims under these circumstances outweigh any perceived advantages.

Conclusion. The order of the trial court denying Midwest’s motion to dismiss is reversed. The case is remanded with instruction to dismiss the Estate’s claim for spoliation.

Posted by Marcia Oddi on Tuesday, September 26, 2006
Posted to Ind. Sup.Ct. Decisions

Ind. Decisions - Court of Appeals issues 3 today (and 16 NFP)

For publication opinions today (3):

In Arthur Beatty v. State of Indiana, an 8-page opinion, Judge Davis writes:

Appellant-defendant Arthur Beatty appeals from his conviction for Voluntary Manslaughter,1 a class B felony. Specifically, Beatty argues that the trial court erred in instructing the jury and that there is insufficient evidence supporting his conviction. Additionally, the State cross-appeals the trial court’s order granting Beatty’s petition to file a belated notice of appeal. Finding that Beatty has failed to establish that he was without fault for failing to file a timely notice of appeal or that he was diligent in requesting permission to file the belated notice of appeal, we reverse the trial court’s order granting Beatty’s petition and dismiss Beatty’s appeal. * * *

Ordinarily, we would remand this matter to the trial court to afford the State an opportunity to present its objections to Beatty’s petition. But under these somewhat peculiar circumstances, the trial court held a hearing on the petition before the proper petition and the State’s written response had been filed. Consequently, the State had an opportunity to articulate its reasons for objecting to the petition and the record adequately reflects those arguments. Inasmuch as we have concluded that the evidence does not support a conclusion that Beatty was without fault in failing to file a timely notice of appeal or that he was diligent in requesting permission to file a belated notice of appeal, we must reverse the judgment of the trial court and dismiss Beatty’s appeal.

In Gibson-Lewis, LLC v. Teachers Credit Union, et al., a 12-page opinion, Chief Judge Kirsch writes:
Appellant-Plaintiff, Gibson-Lewis, LLC (Gibson-Lewis), appeals the trial court’s award of summary judgment in favor of Appellees-Defendants, Teachers Credit Union (TCU) and Prairie Group, Inc. (Prairie Group), which found that Prairie Group presented a valid claim pursuant to Indiana’s personal liability statute.

Gibson-Lewis raises five issues on appeal, which we consolidate and restate as the following single issue: Whether the application of Indiana’s personal liability statute, codified at Ind. Code § 32-28-3-9, is limited to a claimant who is employed as a subcontractor or supplier by the contractor who is owed money by the project owner, or whether the statute extends to a remote subcontractor who lacks a direct employment relationship with the contractor. We affirm. * * *

Mindful of the established case law interpreting the personal liability statute and the statute’s purpose, we conclude that Prairie Group is entitled to assert a claim on funds owed by TCU to Gibson-Lewis pursuant to I.C. § 32-28-3-9. Thus, we affirm the trial court’s grant of summary judgment.

In Nicholas D. Baird v. State of Indiana, a 13-page opinion, Chief Judge Kirsch writes:
On appeal, he raises the following restated issues: I. Whether the trial court erred in admitting evidence of illegal drug activity obtained during a warrantless search. II. Whether the trial court’s delay in providing Baird the jury list pursuant to IC 33-28-4-9 was done in bad faith or was harmful to Baird’s substantial rights. We affirm. * * *

Here, Hauser did not call police dispatch as an anonymous informant to report suspicious activity or the existence of a possible methamphetamine lab; instead, he called to report having seen an explosion and a fire in the woods across the road. * * * The trial court found the search was reasonable given the totality of the circumstances. It also found no evidence that the executed consents were not voluntarily signed. The trial court’s decision that this warrantless search did not violate Baird’s rights under the Indiana Constitution was not against the logic and effect of the facts before it.

Baird contends that the trial court erred by providing him with a jury list just fifteen minutes before trial. IC 33-28-4-9(b), in pertinent part, provides, “the jurors called to service shall be identified long enough before the trial or grand jury session to permit counsel to study their backgrounds.” * * *

We agree that it was error for the trial court to provide the list just fifteen minutes before trial. While cautioning trial judges that the production of timely jury lists is mandated, under the facts of this case, we cannot grant Baird the relief he seeks. * * * There is no evidence in the record before us, nor does Baird contend, that the trial court acted in bad faith. * * * During voir dire, counsel had the same opportunity to interview the jurors and determine their attitudes towards drugs in general and methamphetamine in particular. Based on the evidence presented to the jury, we do not find that the trial court’s delay in producing the list was harmful to Baird’s substantial rights.

NFP civil opinions today (4):

Richard & Jacquelyn Arnold v. New Horizons Home Health Care, Parkview Hospital, Drew Martin Thurber (NFP)

Aaron Israel v. Indiana Dept. of Correction (NFP

Shicotta Coan and Ramona Ward v. Jeremy Boritzki (NFP)

Miranda Wood v. Marion County Office of Family & Children (NFP)

NFP criminal opinions today (12) (link to cases):

Leslie Gordon v. State of Indiana (NFP)

Spencer R. Norvell v. State of Indiana (NFP)

In Re: J.B. (NFP)

Raymond Shook v. State of Indiana (NFP)

Jamin Osborne v. State of Indiana (NFP)

Edward Robinson v. State of Indiana (NFP)

Kelly Underhill v. State of Indiana (NFP)

Paul M. Thompson v. State of Indiana (NFP)

Robert J. Szabo v. State of Indiana (NFP)

Jamie Glover v. State of Indiana (NFP)

Henry Washington v. State of Indiana (NFP)

Robert Clark v. State of Indiana (NFP)

Posted by Marcia Oddi on Tuesday, September 26, 2006
Posted to Ind. App.Ct. Decisions

Law - National look at voter ID

Also on the front page of the NY Times today is a story by Joyce Purnick headed "Stricter Voting Laws Carve Latest Partisan Divide." A quote:

The new measures include tighter controls over absentee balloting and stronger registration rules. The most contentious are laws in three states — Georgia, Indiana and Missouri — where people need government-issued picture ID’s to vote, and provisions here in Arizona that tightened voter ID requirements at the polls and imposed the proof-of-citizenship requirement for voter registration.
For background, start with this ILB entry from Sept. 12.

Posted by Marcia Oddi on Tuesday, September 26, 2006
Posted to General Law Related

Law - Part II of NY Times series on Justice-of-the-Peace-type courts in NY State

Here is Part II (yesterday's Part I summary here), again starting on the front page and continuing on to two full-pages inside. Today's story, by William Glaberson, begins:

DUANE, N.Y. — Gary Betters thought he understood the law as well as any average American. A school psychologist, he wanted $1,588.60 he said the nearby village of Malone owed him for helping run a summer recreation program. When he brought a small claim in Duane Town Court, he expected that the judge would listen to both sides, then rule.

Like many others who go to court across New York State, he got a crash course in the strange ways of small-town justice.

Although no one showed up to defend the village, Justice William J. Gori started the trial anyway. Although the judge had Mr. Betters testify at length, he neglected to have him swear to tell the truth. And although Justice Gori told Mr. Betters he had another week to submit more evidence, the judge went ahead and decided the case anyway.

Mr. Betters received the news in a letter from the court: his case had been dismissed. No reason was given. “I cannot understand how a defendant can win when they don’t even show up,” he said in an interview.

The State Commission on Judicial Conduct figured out how. Justice Gori, it seems, had gone to the village offices in Malone before the trial, interviewed the village’s chief witness, then informed the village lawyer that he had decided to throw out the case.

Justice Gori told the commission that he had never heard of the elementary legal rule that bars a judge, except in the most extraordinary circumstances, from secret contact with one side of a case. “It’s not even explained in my manual,” he said.

Posted by Marcia Oddi on Tuesday, September 26, 2006
Posted to Courts in general

Ind. Decisions - "Court OKs Ball State shooting lawsuit"

"Court OKs Ball State shooting lawsuit" is the heading to a brief AP story posted on the Indianapolis Star website this morning. It reports:

MUNCIE, Ind. -- A federal appeals court is allowing a wrongful death lawsuit to proceed against a former Ball State University police officer who fatally shot an unarmed student.

Robert Duplain had asked the 7th U.S. Circuit Court of Appeals in Chicago to dismiss the lawsuit by the family of Mike McKinney, arguing that he had qualified immunity as a police officer and had used reasonable force when the student lunged at him in a dark alley.

U.S. District Judge Richard L. Young previously refused to dismiss the case because he said there was a factual dispute over whether McKinney posed a threat to Duplain. In its Sept. 12 opinion, appeals court denied Duplain's request on the same grounds. * * *

The case originally had been scheduled to be tried beginning Sept. 19 in U.S. District Court in Indianapolis.
"It's going to be reset for trial," said Thomas Malapit Jr., one of the attorneys representing McKinney's parents. "That doesn't mean other motions won't get filed by Duplain's attorneys to try to somehow obtain an early termination of the case, but as it stands right now, it's going to be reset for trial." [emphasis added by ILB]

The ILB actually reported this decision two weeks ago, on Sept. 12th. See the 9/12/06 ILB entry here. Note also in that entry the Circuit Court's references to another high profile Indiana case involving somewhat similar circumstances, Leaf v. Shelnutt.

Posted by Marcia Oddi on Tuesday, September 26, 2006
Posted to Ind. (7th Cir.) Decisions

Ind. Gov't. - "DNR should stop its practice of manufacturing controversies" [Updated]

"DNR should stop its practice of manufacturing controversies" is the headline to an editorial today in the Munster (NW Indiana) Times. Some quotes:

The latest firestorm stems from [Indiana Department of Natural Resources Director Kyle Hupfer's] decision to rescind a rule prohibiting concealed weapons in state parks and wildlife areas.

"This corrects an inconsistency with DNR rules and the law of the land almost everywhere else in Indiana," Hupfer said in prepared remarks last week. "I appreciate the governor's support to bring this in line with statewide gun policy."

But Gov. Mitch Daniels appeared to distance himself from the controversy, saying it was an agency decision and not his.

So a truce in the tension between gun advocates and gun control advocates was needlessly broken by Hupfer last week.

The rule had been put in place to discourage poaching. So what message does rescinding the rule send?

Hupfer's ruling is temporary, subject to approval by the Natural Resources Commission.

Earlier controversies brought by Hupfer included a plan to build a hotel at Indiana Dunes State Park and a curious settlement to the problem of canned hunts.

Hupfer should have pushed for the hotel to be built on previously disturbed land, allowing unrestricted beach access for all visitors.

His settlement on the canned hunts was bizarre. Acknowledging that hunting deer in pens is a problem, he brokered a deal with the operators of those businesses to allow them to continue to operate for a dozen years before the practice ends.

If canned hunts are a problem, they should have been stopped, period.

The Natural Resources Commission should back away -- quickly -- from allowing park visitors to carry concealed weapons. And Hupfer should steer the DNR away from controversy for a change.

See also "DNR lifts ban on handguns in state parks," here.

Re the statement: "he brokered a deal with the operators of those businesses to allow them to continue to operate for a dozen years" from the editorial above, another way to look at it is that he guaranteed the businesses 12 more years of operation, rather than shutting them down.

[Updated 10/2/06] What's next? Strip mining in state parks? Well, yes. See 10/2/06 AP story here and 10/1/06 Evansville Courier& Press story here.

Posted by Marcia Oddi on Tuesday, September 26, 2006
Posted to Indiana Government

Ind. Courts - More from South Bend Tribune series on the county's judges

The South Bend Tribune series on St. Joseph County judges continues today. Yesterday the ILB quoted from the Tribune's Sunday story, titled "Similar crime, similar counties, different punishments," comparing St. Joe and Elkhart counties.

Monday's Tribune story
, headed "Prison sentence often last resort in St. Joseph County judicial system," was written by Jeff Parrott and Patrick M. O'Connell. Some quotes from the long story:

[Superior Judge Jerome Frese] declined to comment on a specific case. But in recent interviews with The Tribune, he and two other St. Joseph Superior Court judges made one thing clear: Except for very violent crimes, they often regard prison as a last resort.

No matter how much the public clamors for it, they do not believe prison rehabilitates many people. On the contrary, the judges think it often leaves defendants worse off.

"You take a mean puppy and put him in prison and he comes out a mean dog," Judge Roland W. Chamblee Jr. said. "Unless you're going to sentence somebody for life, they're going to come back into the community, so what can you do short of sending somebody to prison if they're a first-time offender?" * * *

In sentencing Berry, Frese said in court that he did not believe sending him to prison was going to help rehabilitate him or help him turn his life around.

Frese frequently orders prison sentences that fall below the penalty range spelled out in state law, according to a Tribune computer-assisted analysis of his sentencings from July 2005 through June 2006. For instance, his average executed sentence for Class D felonies, the least severe types of felonies, was three months in jail. * * *

St. Joseph Superior Judge John Marnocha agrees.

"I don't believe that there is rehabilitation in prison," Marnocha said. "I don't know that there ever was. I think that what you're doing when you put somebody in prison is you're simply warehousing them and keeping them separate from society, period."

Chamblee said he prefers to impose "split" sentences, giving the defendant a little prison time followed by probation. Ideally, he keeps the prison time short enough that the convict's life isn't ruined but long enough to give him a taste of life behind bars to deter future crimes.

But Andy Pazera, assistant superintendent of re-entry for the Westville Correctional Facility, emphasizes that the Indiana prison system is more than a warehouse for criminals.

At Westville, offenders can choose from an offering of 10 vocational classes -- from auto body to culinary arts -- and the facility offers two substance abuse programs, including the 24-hour "Therapeutic Community," which has an enrollment of 270.

A basic level reading and writing program, GED classes and the "Thinking for Change" program, which challenges offenders to evaluate their past and alter their behavior for the future, are available to prisoners.

"We're doing constructive and creative things and providing positive options for offenders," Pazera said. "Re-entry is our No. 1 focus." * * *

Although they try not to let cost drive their sentencing decisions, the St. Joseph judges said state prison officials make them well aware of how costly and crowded prisons are. Chamblee said judges periodically receive a report via e-mail that lists the capacity and population figures for Indiana prisons.

Judges also have been informed that it costs the state about $60 a day to house each prisoner.

The judges said they hate to see a defendant who has come before them and received a break commit a new crime while on probation. But they don't feel responsible.

"Sometimes it works and sometimes it doesn't," Marnocha said of probation. "People all the time appear in front of me and they tell me that they found God and they've changed their life, blah blah blah. ... I tell them, if just 50 percent of the people meant that, and if another 50 percent of people who meant it, did it, the world would be a better place.

"But hey, here's the deal. A defendant who gets probation or a defendant who gets a light sentence and commits another crime ... it's that person's fault for committing another crime. I think we tend to look at those and say, 'Well gosh, if you had put him in jail he wouldn't have committed the crime.' Well, maybe not that crime then, but maybe some crime later."

Frese noted that the Indiana Constitution says the correctional system should be rehabilitative, not punitive.

"Should we take that seriously? We shouldn't throw it out the window unless we're going to amend it," Frese said. "My problem with prisons is, just for working out a mechanistic retribution: You've done a D felony, you should get 18 months in prison. Doing that, I think, is not doing justice. I think it is against everything we stand for."

Today's Tribune story, also by Jeff Parrott and Patrick M. O'Connell, is headlined "How judges chosen an ongoing debate: St. Joseph one of two counties in Indiana where retention is still used." Some quotes:
What's it take to get booted from a Superior Court bench in St. Joseph County?

Who knows? It's never happened. * * *

Since St. Joseph County adopted the retention system for Superior Court judges in 1973, judges have come up for retention on the ballot 34 times. On average, 73 percent of voters have voted for retention, according to a Tribune analysis of election records. * * *

Experts say judges have been just as entrenched in other states that have chosen the "merit selection" system over popularly electing judges.

In 5,300 merit retention elections from 1964 to 2004 in 10 states, including Indiana, voters have declined to retain appointed judges only 52 times, said professor Larry T. Aspin, chair of Bradley University's political science department in Peoria, Ill.

Aspin sees that as a testament to the high quality of judges selected through the merit system, rather than some flaw in the model.

"If they were really bad, and I underline 'really,' I think more of them would be voted out," Aspin said. "I tend to prefer merit retention because you can have a judicial commission sift through and make sure you get someone with the best qualifications."

Under the merit selection model, a local commission of lawyers, judges and citizens gathers when a judgeship becomes vacant, interviews judge applicants and sends three finalists' names to the governor. The governor then picks one to be judge. Every six years, voters then can vote "yes" or "no" on whether to retain the judge for another six years.

Nineteen states and the District of Columbia now use some form of merit selection for trial court judges, according to the American Judicature Society, a nonpartisan group that works to improve the justice system.

Merit selection for trial court judges is not very common in Indiana.

Although it still popularly elects its judge for Circuit Court -- which largely handles civil cases with the exception of a few types of crimes, such as welfare fraud -- St. Joseph is one of just two Indiana counties that uses merit selection for Superior Court judges. Lake County is the other.

A 1973 state law implemented merit selection for Superior Court judges in the four largest counties outside the Indianapolis area: St. Joseph, Allen (Fort Wayne), Vanderburgh (Evansville) and Lake (Gary). Driving passage of the law was the idea that it was becoming increasingly difficult in larger metro areas for voters to learn enough about candidates to cast informed votes, recalled Frank Sullivan, a South Bend native and current state Supreme Court justice.

But Vanderburgh and Allen switched back to elections in 1978 and 1982, respectively. Unlike most other Indiana counties, Vanderburgh and Allen have nonpartisan elections for Superior Court judges, meaning judge candidates cannot declare a political party affiliation. * * *

[Justice Frank] Sullivan, who chairs the St. Joseph County Judicial Nominating Commission, concedes that the retention system -- also used by the Indiana Supreme Court and Indiana Court of Appeals -- is not perfect, but he thinks it's the best of all options.

"It was seen as a better way to get more highly qualified judges on the bench if there was this screening process and they could stay on longer," Sullivan said, "rather than becoming swept up in the tide of a partisan election ... not on their merits but on the basis of which political party is doing better that year." * * *

Sullivan was asked whether the retention system can allow a judge to stay on the bench too long, years after he has started making poor decisions or perhaps even grown senile, because voters are largely unaware of his performance.

"That could happen," Sullivan said. "It's a weakness of the system. But I think if one looks around at partisan contested elections ... you (also) see people past their prime being elected over and over again."

Although he favors a system that essentially creates an indirect rather than direct democracy, Sullivan said he thinks voters are "very qualified" to pick judges.

"(But) I do think a judge's role is quite different as a matter of separation of powers. ... There is a value in distinguishing between candidates running for judicial office, as impartial arbiters of disputes, versus advocates for a particular set of positions. If someone is coming after you and attacking particular decisions you've made, I think that can undermine the judicial system."

David Parker, assistant professor of political science at Indiana University South Bend, agreed.

"Essentially I think election of judges is ridiculous and in contradiction of the founding principles," Parker said.

Parker also thinks the average voter doesn't know enough about judicial candidates to elect the best ones.

"It's basically a beauty contest," Parker said. "People see the name and say, 'Oh, I've heard of him.' Click. It's an information-less environment."

Parker said it is "virtually impossible," even for voters who pride themselves on gobbling up as much information as possible in preparation for the election, to gauge a judge's job performance on the bench.

Aspin, political science department chair at Bradley University, said a growing number of states are trying to give voters more of that knowledge. Arizona and Colorado are two states that have recently established judicial performance evaluation commissions.

Evaluating judges' performance is difficult to do because the criteria is so ambiguous and based on a highly subjective value system, said Lawrence Baum, professor of political science at Ohio State University.

For instance, Baum said, for many voters, taking a hard line on crime means handing out long prison sentences. Others might not agree.

It would be more beneficial to evaluate judges based on their commitment to the job, their knowledge of the law and their overall fairness, Baum said. But it's not possible to gather data on those criteria like it is possible to put together sentencing information.

"There's no way to know simply by looking at leniency or harshness whether a judge is doing well," Baum said. [emphasis added by ILB]

Note that although the story does not mention it, Justice Frank Sullivan is himself up for retention this year, for his spot on the Indiana Supreme Court. See yesterday's ILB entry.

Posted by Marcia Oddi on Tuesday, September 26, 2006
Posted to Indiana Courts

Ind. Decisions - Editorial on the Planned Parenthood records decision

The Fort Wayne Journal Gazette has an editorial today on the Court of Appeals decision last Friday in the Planned Parenthood of Indiana v. Steve Carter and Allen K. Pope case - ILB entries here, here and here.

Some quotes:

But the fraud investigation was nothing more than a ruse.

“We acknowledge the significant public interest in investigating complaints of patient neglect and allegations of child sexual abuse, but granting IMFCU’s (Indiana Medicaid Fraud Control Unit) demand for unlimited access to PPI’s minor patients’ medical records is neither the only, nor the most effective, nor the least intrusive means of serving those interests,” Judge Terry Crone wrote in granting Planned Parenthood’s motion to block the attorney general from receiving the records.

Carter has shown good initiative in investigating securities problems, foundation scandals and voting fraud in Lake County. He put aside partisan politics when he followed through on his pledge to go after violators of an Indiana law prohibiting automated calls when he filed a lawsuit against a company that was making phone calls attacking Democratic congressional candidate Baron Hill. But in this instance, his attempt to gain access to private medical records appears politically motivated and misguided.

The ruling clearly communicates that while the attorney general’s office has an obligation to investigate potential fraud and abuse, trampling on patients’ rights to privacy is not an option. Nor is it an effective investigatory method. There are better ways for the attorney general’s office to investigate child abuse that don’t involve violating patients’ privacy rights or overstepping the attorney general’s authority.

The medical-record seizure appears to be nothing more than a fishing expedition, an effort to review records to find evidence of a crime not otherwise being investigated. Not only does it infringe on Planned Parenthood’s ability to protect its patient rights, it could also damage patient trust and discourage young people from seeking and getting needed medical treatment.

Carter should not waste the public’s tax dollars by appealing this decision to the Indiana Supreme Court.

Posted by Marcia Oddi on Tuesday, September 26, 2006
Posted to Ind. App.Ct. Decisions

Monday, September 25, 2006

Ind. Courts - Results of poll of Indiana attorneys on retaining the 5 appellate judges and 1 justice up for confirmation this year

From the ISBA press release:

The Improvements in the Judicial System Committee of the Indiana State Bar Association (ISBA) has completed its compilation of the 2006 Judicial Retention Poll responses. Results indicate overwhelming support, by ISBA members, of the Indiana Supreme Court justice and Indiana Court of Appeals judges seeking retention.

All in-state ISBA members received ballots, nearly 9,989; 1,477 ballots were returned.

The yes/no retention portion of the ballot was tabulated, and results are as follows:

Justice Frank Sullivan Jr.: 81% Yes; 15% No; 4% Abstain
Chief Judge James S. Kirsch: 82% Yes; 11% No; 7% Abstain
Judge Terry A. Crone: 70% Yes; 14% No; 16% Abstain
Judge Ezra H. Friedlander: 78% Yes; 14% No; 8% Abstain
Judge Edward W. Najam Jr.: 78% Yes; 13% No; 9% Abstain
Judge Patricia A. Riley: 70% Yes; 21% No; 9% Abstain

Appellate-level court judges face an approval vote in the first general election that occurs at least two years after their appointment, and every 10 years thereafter. Indiana voters will have an opportunity to cast their ballot concerning the judges’ retention Election Day on Nov. 7.

Information from the release on the districts each judge serves was omitted, but will appear in ILB materials later this month.

Posted by Marcia Oddi on Monday, September 25, 2006
Posted to Indiana Courts

Law - NY Times series on Justice-of-the-Peace-type courts in NY State

The three-part NY Times series, titled "Broken Bench," was a year in the making and started today with a lengthly story that begins on the paper's front page, headlined "In Tiny Courts of N.Y., Abuses of Law and Power."

Some quotes from today's story:

Some of the courtrooms are not even courtrooms: tiny offices or basement rooms without a judge’s bench or jury box. Sometimes the public is not admitted, witnesses are not sworn to tell the truth, and there is no word-for-word record of the proceedings.

Nearly three-quarters of the judges are not lawyers, and many — truck drivers, sewer workers or laborers — have scant grasp of the most basic legal principles. Some never got through high school, and at least one went no further than grade school.

But serious things happen in these little rooms all over New York State. People have been sent to jail without a guilty plea or a trial, or tossed from their homes without a proper proceeding. In violation of the law, defendants have been refused lawyers, or sentenced to weeks in jail because they cannot pay a fine. Frightened women have been denied protection from abuse.

These are New York’s town and village courts, or justice courts, as the 1,250 of them are widely known. In the public imagination, they are quaint holdovers from a bygone era, handling nothing weightier than traffic tickets and small claims. They get a roll of the eyes from lawyers who amuse one another with tales of incompetent small-town justices.

A woman in Malone, N.Y., was not amused. A mother of four, she went to court in that North Country village seeking an order of protection against her husband, who the police said had choked her, kicked her in the stomach and threatened to kill her. The justice, Donald R. Roberts, a former state trooper with a high school diploma, not only refused, according to state officials, but later told the court clerk, “Every woman needs a good pounding every now and then.” * * *

The New York Times spent a year examining the life and history of this largely hidden world, a constellation of 1,971 part-time justices, from the suburbs of New York City to the farm towns near Niagara Falls.

It is impossible to say just how many of those justices are ill-informed or abusive. Officially a part of the state court system, yet financed by the towns and villages, the justice courts are essentially unsupervised by either. State court officials know little about the justices, and cannot reliably say how many cases they handle or how many are appealed. Even the agency charged with disciplining them, the State Commission on Judicial Conduct, is not equipped to fully police their vast numbers.

But The Times reviewed public documents dating back decades and, unannounced, visited courts in every part of the state. It examined records of closed disciplinary hearings. It tracked down defendants, and interviewed prosecutors and defense lawyers, plaintiffs and bystanders.

The examination found overwhelming evidence that decade after decade and up to this day, people have often been denied fundamental legal rights. Defendants have been jailed illegally. Others have been subjected to racial and sexual bigotry so explicit it seems to come from some other place and time. People have been denied the right to a trial, an impartial judge and the presumption of innocence.

In 2003 alone, justices disciplined by the state included one in Montgomery County who had closed his court to the public and let prosecutors run the proceedings during 20 years in office. Another, in Westchester County, had warned the police not to arrest his political cronies for drunken driving, and asked a Lebanese-American with a parking ticket if she was a terrorist. A third, in Delaware County, had been convicted of having sex with a mentally retarded woman in his care.

Posted by Marcia Oddi on Monday, September 25, 2006
Posted to Courts in general

Ind. Decisions - One Indiana 7th Circuit opinion today

It is Custom Vehicles v. Forest River (ND Ind., Robert L. Miller, Jr., Chief Judge), a 5-page opinion in which Judge Easterbrook writes:

Custom Vehicles, the appellant in this trademark litigation, has filed a motion asking the court to strike portions of the appellee’s brief. The motion came to me during my stint as the motions judge. It is now denied—and to show that such absurd motions do not come for free, I deduct twice the length of this motion from the permissible length of the offending party’s reply brief. * * *

Much more in the same vein follows. Perhaps Custom Vehicles is right about the record and Forest River wrong. But what would lead counsel to think that the court of appeals will redact his adversary’s brief? The way to point out errors in an appellee’s brief is to file a reply brief, not to ask a judge to serve as editor. (If a material misrepresentation comes in the adversary’s reply brief, the appellee may ask for leave to file a supplemental statement.) The judiciary has quite enough to do deciding cases on their merits. * * *

Judicial orders that control the conduct of an appeal will be enforced, if necessary by striking a brief. But editing a brief? That’s a different kettle of fish. The sort of motion that Custom Vehicles has filed does nothing but squander time. Each week one circuit judge resolves all motions; there is no relation between this task and the (eventual) assignment of a three-judge panel to resolve the appeal on the merits. * * *

Despite the fact that motions to strike portions of briefs are not authorized by the rules and are not only unnecessary (from the parties’ perspective) but also pointless (from the judiciary’s), they are filed all the time. I see about one such motion during each week that I act as motions judge. I have never granted such a motion (and never will); I don’t believe that any of my colleagues grants such motions; yet the flow continues.

For some time I have been treating such motions as a form of “advance” on the allowance of pages or words used for the party’s appellate brief. * * *

The court has ample power to change the length of a brief from the presumptive maximum. See Fed. R. App. P. 2. I have decided to use that power. My practice has not led to a discernible reduction in the number of these motions, however, perhaps because I have not explained it in a published opinion. Now notice has been given — and I have decided to raise the stakes and deduct from the brief double the number of words in a motion to edit an opponent’s brief or any other equivalently absurd, time-wasting motion.

Custom Vehicles’s motion to strike contains about 1,200 words. The presumptive maximum length of a reply brief under Fed. R. App. P. 32(a)(7)(B)(ii) is 7,000 words. For Custom Vehicles, however, the reply brief in this appeal may not exceed 4,600 words. The motion to strike is denied.

For those interested in who the attorneys in this case might be, here is a link to the briefs.

Posted by Marcia Oddi on Monday, September 25, 2006
Posted to Ind. (7th Cir.) Decisions

Law - " Divorcing gay couples create new legal issues"

"Divorcing gay couples create new legal issues: Alimony, property questions have even lawyers confused" is the headline to a story today in the San Francisco Chronicle. It begins:

Gay and lesbian couples in the United States cannot marry anywhere except Massachusetts, but many states that legally recognize same-sex couples now send them to divorce court if they break up.

Same-sex couples who break up are finding themselves in a legal morass. State divorce laws conflict with federal tax laws; differences among states' laws can jeopardize child-custody agreements if one or both partners move; and some attorneys are shying away from same-sex divorces for fear of their own liability.

When I was in law school, the issue was "Reno divorces", which were not recoqnized in many jurisidictions.

Posted by Marcia Oddi on Monday, September 25, 2006
Posted to General Law Related

Ind. Courts - Judge Ridlen rules in Leo Burns' ballot battle for Cass County Circuit Court Judge

Joe Ulery reports via Mix 102 out of Logansport:

Cass County Circuit Court Judge Julian Ridlen has issued a permanent injunction that translates into Democrat Leo Burns' name being placed onto the fall election ballot.

Burns is running for Circuit Court judge, but filed suit in Ridlen's court after his candidacy was not certified by the Indiana Election Division. The state office claimed that the necessary paperwork for Burns' candidacy was filed in the wrong office.

The paperwork was filed in the Cass County Clerk's Office by Democratic Chairman Matt Meagher, not in Indianapolis, where the information is supposed to be filed.

Burns said today, "that I am very happy and gratified by Judge Ridlen's courageous decision. Personally, I see it as a victory, but I think more importantly, I see it as a victory for all of the voters of Cass County."

The state has thirty days to appeal Ridlen's decision. There's no word yet on whether or not that appeal will be filed. The judge's decision to allow Burns' name on the ballot creates a contest between Burns, who is a Democrat, and Republican Sheryl Pherson.

Here is the story as reported in the Pharos-Tribune:
It may be later than most candidates would like to be added to a ballot, but it is better late than never for a Cass County Democrat.

Logansport attorney Leo Burns will be on the November Cass County ballot after all.

On Friday, Cass Circuit Court Judge Julian Ridlen ruled in favor of his request to override a decision by the Indiana Election Division of the Secretary of State’s Office. Ridlen, a Republican, could have cleared the way for another Republican, Sheryl Pherson, to win the race by default. Other than Pherson, who won a plurality in the GOP May primary, there are no other candidates running for Circuit Court judge.

Jim Austen, who served as co-counsel for Burns along with Courtney Justice, said Saturday night that voters deserve choices in elections and the decision allows them to have one.

“We are naturally very gratified that the voters would get a choice,” he said.

Burns was unavailable for comment Saturday night.

Barring an appeal of the decision by the state, Ridlen’s injunction sets up a race between two political newcomers in what is expected to be one of the premier races on the ballot.

For background, start with this ILB entry from last Thursday.

Posted by Marcia Oddi on Monday, September 25, 2006
Posted to Ind. Trial Ct. Decisions

Ind. Decisions - Court of Appeals issues 2 today (and 14 NFP)

For publication opinions today (2):

Bruce Carr v. Joseph Pearman

Ray C. Smith, III, M.D. and Smith Surgical Group v. Donald James Johnston

NFP civil opinions today (5):

Brenda Bohlander v. Keith E. Bohlander (NFP)

Nancy L. Jones v. Robert W. Jones (NFP)

Arvinyl Metal Laminates Corp. and James H. Barrett v. Arvinyl Metal Finishing

Mary Calico v. Kenneth Wedig, M.D. (NFP)

Seth Weinglass v. Noel Wilkins and Mark Ciancone, M.D., et al. (NFP)

NFP criminal opinions today (9) (link to cases):

Richard E. Baker v. State of Indiana (NFP)

Lashaunda Crymes v. State of Indiana (NFP)

Vincent Edward Price v. State of Indiana (NFP)

Thomas Shannon v. State of Indiana (NFP)

Dennis Ray Stotts v. State of Indiana (NFP)

Courtney C. Dixie v. State of Indiana (NFP)

Michael Davis v. State of Indiana (NFP)

Michael Page v. State of Indiana (NFP)

Joshua Borland v. State of Indiana (NFP)

Posted by Marcia Oddi on Monday, September 25, 2006
Posted to Ind. App.Ct. Decisions

Ind. Courts - South Bend Tribune compares punishments from different judges

"Similar crime, similar counties, different punishments" is the headline to this Sunday story in the South Bend Tribune, preceded by this introduction:

There’s a widely held perception in law enforcement circles -- acknowledged by judges themselves and reportedly cited by criminals -- that if you commit a crime in St. Joseph County, you’ll be treated more leniently than if you were to commit the same crime in Elkhart County.
The lengthy article itself, by Jeff Parrott, begins:
Adrian Prado likely felt unlucky on Nov. 23, 2003, the day he jumped into a car in a South Bend parking lot and sold his acquaintance some methamphetamine.

Unlucky because it turned out his customer was wearing a wire for the police, who happened to be nearby videotaping the transaction.

Prado ultimately pleaded guilty to dealing methamphetamine, a Class B felony worth up to 20 years in prison under state law.

But things might have been worse for the 20-year-old had he committed his crime in Elkhart County, as Danny Heerschop did.

After the police in Goshen caught 35-year-old Heerschop selling methamphetamine, he, too, pleaded guilty.

It was the first felony conviction for both men, but they were treated very differently in court.

St. Joseph Superior Judge Jerome Frese sentenced Prado to 10 years in prison but suspended eight of those and allowed him to serve the two "executed" years on home detention rather than in prison.

Prado has since allegedly violated terms of the program and has been arrested. He is due back in court Dec. 1, according to court records, and could be forced to serve the full 10-year prison sentence.

In contrast, Heerschop is sitting in a prison cell. Elkhart Circuit Judge Terry Shewmaker handed him a 15-year sentence at the Miami Correctional Facility. His earliest possible release date is in 2012.

The comparison highlights how the price one pays for committing a crime in Michiana can depend on where it occurs, according to a Tribune computer-assisted analysis of sentencing in both counties. Because no state or local agencies track judges' sentencing patterns, the Tribune built its own databases of felony sentences that Frese and Shewmaker handed down from July 2005 though June 2006.

Frese was selected because he is the only St. Joseph criminal judge who will appear on the Nov. 7 ballot.

There is much more to the story -- review it for yourself and see what you make of it.

Posted by Marcia Oddi on Monday, September 25, 2006
Posted to Indiana Courts

Courts - Roving interpreters fill void in federal courts

The Louisville Courier Journal has a report today by Jay Reeves of the AP on the shortage of translators in some federal districts. Some quotes:

BIRMINGHAM, Ala. -- Federal court interpreter Teresa Thorpe spoke Spanish softly into a microphone as one Hispanic defendant after another stepped forward, each equipped with wireless receivers and earpieces.

The scene was typical of U.S. courts that are struggling to bridge the language barrier between an English-speaking legal system and an influx of Spanish-speaking immigrants. What was unusual was Thorpe's commute to work: She was flown to Birmingham from Kentucky because of a shortage of qualified interpreters in the Southeast.

Alabama is among 20 states with two or fewer people who are legally certified to act as interpreters in federal courts, where language specialists are required to have more training and testing than in state courts. When certified interpreters aren't available, officials try to fill the gaps with telephone interpretation and, sometimes, less-qualified interpreters.

But often, experts like Thorpe are hired to shuttle between states and court districts to both provide oral interpretation and translate documents during court proceedings that, despite the long commute, sometimes take no more than a few minutes. They're paid $355 a day, plus airfare and other expenses.

Laura Garcia-Hein, a certified interpreter from Louisville, frequently travels to Alabama to interpret for Spanish-speaking people charged with crimes. She also has been to Indiana, Iowa, Ohio, North Carolina and Tennessee to work.

"There are many of us who do a lot of traveling," Garcia-Hein said. "You have people going from Louisiana to Montana to interpret for a trial."

While some judicial districts have staff interpreters, the federal system spent about $9.8 million last year to hire interpreters on a contract basis, according to information from the Administrative Office of U.S. Courts.

Posted by Marcia Oddi on Monday, September 25, 2006
Posted to Courts in general

Ind. Decisions - "Appeals court throws out conviction"

"Appeals court throws out conviction" is the headline to this story today in the Muncie Star-Press about a Court of Appeals ruling last Tuesday, Sept. 19th, in the case of Joseph Stellwag v. State of Indiana (see ILB entry here - case is about half-way down). Some quotes:

MUNCIE -- A state appeals court has overturned a Muncie man's battery conviction and a resulting six-year prison term, citing comments made during the August 2005 trial by Delaware Circuit Court 5 Judge Wayne Lennington.

A jury last year found Joseph F. Stellwag, now 57, guilty of battery with a deadly weapon. He had been accused of beating a man in the head with a metal pipe during an August 2004 altercation.

Lennington later imposed the six-year prison term, two years longer than the standard sentence for a class C felony conviction.

In a ruling last week, the Indiana Court of Appeals ruled that Stellwag should receive a new trial because the "cumulative effect" of repeated comments by Lennington during last year's trial "crossed the barrier of impartiality."

The appeals court noted that Lennington at one point called Stellwag before the bench and threatened to send the Muncie man to jail "if he did not stop whispering to his attorney and making gestures."

"I've had it with you," the judge told Stellwag, according to a partial transcript. "I've just had to admonish your attorney for the faces and the conduct you're having. ... Now I'm going to take you out of this courtroom, and we'll leave you upstairs in the jail until we have this trial. Do you understand me? One more (time), and I'll not warn you again. I'll have you taken out."

The appeals panel suggested Lennington could have excused the jury from the courtroom before chastising the defendant.

"Admonishment in front of the jury was not a function necessary in controlling a courtroom," the judges wrote.

The appeals court also ruled Lennington had objected to a line of questioning by defense attorney Ross Rowland before Deputy Prosecutor Judi Calhoun had raised any objection.

The panel also ruled that Lennington "gratuitously requested in front of the jury that a defense witness refrain from arguing with (Calhoun) after the witness had responded in a yes or no fashion to (the deputy prosecutor's) question."

Posted by Marcia Oddi on Monday, September 25, 2006
Posted to Ind. App.Ct. Decisions

Sunday, September 24, 2006

Courts - More on "Patent lawyers flock to East Texas court for its expertise and 'rocket docket' "

Marshall Texas was the subject of this March 27, 2006 ILB entry quoting from a story in the Dallas Morning News.

Today the NY Times devotes half its Sunday business section front page, plus two inside pages, to the story, reported by Julie Creswell. A few quotes:

What was remarkable about the trial was not the issue being tried or the arguments proffered by each side, but that these big companies — like dozens more from the East and West Coasts — wound up in the Federal District Court here in Marshall, the self-proclaimed Pottery Capital of the World and home to the annual Fire Ant Festival (sponsored by Terminix, the pest-control company).

More patent lawsuits will be filed here this year than in federal district courts in San Francisco, Chicago, New York and Washington. Only the Central District of California, in Los Angeles, will handle more patent infringement cases.

On the surface, there is little to recommend Marshall as a locus for global corporations looking to duke it out over who owns the rights to important technology patents. Some 150 miles east of Dallas, and just minutes from the Louisiana border, Marshall and its 25,000 residents are fairly typical of most small cities in Texas. Marshall is a place where friendships last a lifetime and rivalries even longer, where residents still talk about the Civil War, debate on street corners about decades-old high school football games, and conduct midday business meetings over plates of meatloaf, mashed potatoes and banana pudding.

What sets Marshall apart from its neighbors is a red-hot patent docket. Four years ago, 32 patent lawsuits were filed in the Federal Eastern District of Texas, which includes Tyler, Texarkana and Marshall. This year, an estimated 234 cases will be filed in the district, a majority of them in Marshall.

What’s behind the rush to file patent lawsuits here? A combination of quick trials and plaintiff-friendly juries, many lawyers say. Patent cases are heard faster in Marshall than in many other courts. And while only a small number of cases make it to trial — roughly 5 percent — patent holders win 78 percent of the time, compared with an average of 59 percent nationwide, according to LegalMetric, a company that tracks patent litigation.

Those odds are daunting enough to encourage many corporate defendants to settle before setting foot in Marshall. Add to that the fact that jurors here have a history of handing out Texas-sized verdicts to winners. In April, for instance, a Marshall jury returned a $73 million verdict against EchoStar Communications for infringing the patents of TiVo. * * *

Oh yes, Ms. Mauthe added, Marshall and its robust legal community go back a long way. In the late 1800’s, she said, Marshall was a bustling city, a transportation gateway to the North, linking local cotton farmers and the Texas and Pacific Railway.

As the railroad was built, personal-injury lawyers came to town to represent injured workers. In more recent decades, Scott Baldwin, Franklin Jones and other Marshall-based plaintiffs’ lawyers generated tens of millions of dollars in fees — and grabbed the national spotlight — by pursuing class-action lawsuits against companies that used asbestos and silica, and against the pharmaceutical and tobacco industries.

By the late 1990’s, though, it looked as if the good times were ending for Marshall’s lawyers. Broad tort reform in the state had limited punitive damages and later capped damages on medical malpractice lawsuits, effectively limiting the fees that lawyers could make.

In Marshall, an oft-told joke is that the passage of tort reform was when many local lawyers made the trip from P.I. to I.P. — that is, they moved out of personal injury and into intellectual property.

That was the road traveled by Samuel F. Baxter, a former state district court judge who had become a personal-injury lawyer, after he received a call from a lawyer in Dallas in 1996, asking him to help out in a patent lawsuit in Marshall. “I told him, ‘No, I don’t know anything about patents,’ ” Mr. Baxter recalled as he reclined far back in his chair in his Marshall office, which included an autographed Cy Young baseball and aging maps of the United States depicting an outsized Republic of Texas.

Mr. Baxter was eventually persuaded to take the case and was the lead trial lawyer defending Samsung in a patent lawsuit filed by Texas Instruments, which eventually settled. Since then, Mr. Baxter, who is a principal at McKool Smith, a Dallas-based law firm with a full-time office in Marshall, has been involved in a number of patent cases; in one, he helped represent TiVo in its patent fight with EchoStar.

Charmingly loquacious about his two adopted sons and local Civil War history, Mr. Baxter turns economical with his words when asked why the federal court in Marshall handles more patent lawsuits than federal courts in much larger cities.

“One, speed kills,” he said. “If you’re the plaintiff, you can go fast and get a resolution faster here than you can a lot of other places.

“Second, there’s a dearth of good lawsuits these days for lawyers to handle,” he added. “You know lawyers: they go where the money is.”

Posted by Marcia Oddi on Sunday, September 24, 2006
Posted to Courts in general

Ind. Courts - "Allen County judge offers ideas to reduce recidivism"

"Allen County judge offers ideas to reduce recidivism" is the headline to a story (requires paid subscription) by Bethany Nolan in today's Bloomington Herald Times. Some quotes:

For Allen County Superior Court Judge John Surbeck, the problem hit home when he began dealing with the criminal justice issues of a third generation.

During his time as a state public defender and on the bench, he worked with parents, children and eventually grandchildren. "They all come back," he said. * * *

Surbeck spoke about his county's "re-entry court," which assists inmates as they leave incarceration and move into society.

The yearlong court project offers training and assistance with other needs, such as housing, mental health and jobs.

Since the program's inception, Surbeck said, there's been a 35 percent reduction in recidivism.

Monroe Circuit Judge Mary Ellen Diekhoff, a former deputy prosecutor, spoke at the forum as well.

Because most repeat offenders get into trouble again within three years of being released, she said, "Programs where we're trying to address what is happening … (are) going to significantly reduce repeat offending."

It's important the county pay attention to the issue and get involved in working toward a solution, she said.

Posted by Marcia Oddi on Sunday, September 24, 2006
Posted to Indiana Courts

Ind. Courts - List of Cases Granted Transfer and Awaiting Decision

The List of Cases Granted Transfer and Awaiting Decision has been updated to include last week's activities.

(The ILB has constructed a dynamic table of cases for which the Supreme Court has granted transfer and which thus are pending disposition. Access it here.)

Posted by Marcia Oddi on Sunday, September 24, 2006
Posted to Ind. Sup.Ct. Decisions | Indiana Transfer Lists

Law - Blakely equated to Miranda and Gideon v. Wainwright in importance

"A Quiet Bombshell in the Legal World" is the headline to this op-ed piece by Stanford law professor Robert Weisbery in the LA Times. Some quotes:

VIRTUALLY every American knows about Miranda, the famous U.S. Supreme Court decision requiring police officers to inform suspects of their rights. But not even many lawyers know about Blakely vs. Washington. Yet this Supreme Court ruling in 2004 took its place alongside Miranda and others — including Gideon vs. Wainwright (which required states to provide a lawyer to indigent felony defendants) and Terry vs. Ohio (which allowed police to stop and frisk subjects without probable cause) — as a precedent that would change the course of American criminal justice. * * *

Overnight, sentencing rules across the country were thrown into turmoil. Dozens of sentences — maybe hundreds — were called into question. If the decision were applied retroactively, how many felons might challenge their sentences?

As many predicted when the Blakely ruling was handed down, the next shoe to drop involved the federal sentencing guidelines for criminal trials — a massively complex and controversial structure created in the 1980s. Last year, the Supreme Court ruled that this vast system of rules also violated the decision in Blakely. The result, for the last two years, has been a state of suspended animation for federal sentencing. Although the justices didn't wipe the federal sentencing guidelines off the books, they ruled that, henceforth, the guidelines must be considered "advisory" rather than mandatory.

As the court enters its new session next week, it continues to face the consequences (perhaps unintended) of its watershed Blakely decision.

For instance, in Cunningham vs. California, which is to be argued Oct. 11, the court is being asked to decide whether California's sentencing laws violate Blakely. * * * At stake is the California sentencing system.

The other big question still facing the court in the wake of the Blakely decision involves not where the ruling applies but when. In Burton vs. Waddington, the court is being asked to decide whether Lonnie Lee Burton, convicted on charges of raping a 15-year-old boy in Indiana in 1991, can have his case reopened under the Blakely ruling.

The question is about the retroactivity of judicial decisions, a very esoteric area of the law. In theory, judges never "make" law but simply interpret or discern its meaning. So if the 6th Amendment means what the high court said in Blakely, it has always meant that, even if earlier judges didn't notice.

By that theory, all decisions ought to be applied retroactively. But if judges feared that refining or expanding laws would lead to the reopening of vast numbers of old cases, they might choose never to do so. So our legal system has created a strange compromise. Roughly put, a decision can be applied retroactively if it looks like a mere extension of an established rule — but not if it is the announcement of a new rule. It also can be applied retroactively if the rule seems absolutely fundamental to a fair trial, not a more technical rule.

So in deciding whether to apply Blakely retroactively, the court will tell us just how important or new it thinks its 2004 creation is after all. But this esoteric little piece of legal doctrine has already proved pretty powerful.

Posted by Marcia Oddi on Sunday, September 24, 2006
Posted to General Law Related

Ind. Courts - Vanderburgh County seeks to put court records online at no cost to public

Kate Braser reports today in the Evansville Courier& Press:

Court officials are hopeful county residents soon will be able to do their court bookkeeping from home.

For years, Vanderburgh Superior Court Judge J. Douglas Knight has helped lead an effort to make court records available online.

Now, Knight said, the time - and possibly the price - finally might be right.

"Yes, there is still hope," Knight said. "In the past, we tried hard to do this, but when we learned the costs, we backed away."

On Oct. 18, court officials will talk with Richmond, Ind.-based Doxpop, a company already providing online records systems for 34 Indiana counties, including Spencer, Warrick, Daviess and Perry.

"And we expect to add more by the end of this year," said Rich Sinex, business development manager for Doxpop. He said Pike County is "just inches away" from launching the system, too.

But Sinex said Vanderburgh County's proposed plans for the system so far are unusual.

"Other counties have a very limited amount of information available to unregistered users,"

Sinex said. "That's where the proposal we are now discussing with Vanderburgh County is somewhat unique."

Currently, unregistered visitors to www.doxpop.com can search for cases by name or number, but can access only basic information about a case.

Sinex said Vanderburgh County officials want to make fuller records available online at no cost to the public.

"So we need to figure out how we can do that," he said, explaining Doxpop does not charge county governments for services.

The system is fully funded by registered users who pay fees for special features. One feature allows a case to be bookmarked, then sends an alert when there are updates.

Previously, of making records available on the Internet took a back seat in favor of more pressing changes, said Vanderburgh County Clerk Susan Kirk.

Kirk said putting records on the Internet is "something we've talked about since I first took office."

She said new restrictions on which court documents can be public was the first wrench in the plan to put records online.

"Then, we'd start discussing again," she said, ticking off a list of speed bumps. "There were just always more pressing issues."

She admitted accessing public records entails long delays.

A court employee in Room 219 spends most of her days explaining to the public how to use the county's slow Courtview software system.

It is wedged between a wall and a copy machine. There are only three public-access computers in the room. Four others are in a roped-off area closed to the public, accessible only to abstractors and attorneys. Most days, a line spills into the hallway to use the computers.

"Hopefully this new system, if it happens, would save time for those investigating cases and the general public," Kirk said.

"I just hope it's easier for everyone."

I've emphasized "ticking off a list of speed bumps" to making the court records available online in the above story as a lead-in to this valuable ILB entry from a little over a year ago, Oct. 9, 2005, headed "Vanderburgh County plan to put records on line is stalled." Note that this earlier ILB entry also mentioned Doxpop.

Here is the Doxpop Court Cases page.

Posted by Marcia Oddi on Sunday, September 24, 2006
Posted to Indiana Courts

Saturday, September 23, 2006

Ind. Decisions - Supreme Court to hear arguments re sentencing in case where defendant pleaded guilty but mentally ill

In a direct appeal, the Supreme Court on August 7, 2006, set oral arguments in the case of Frankie Salyer for October 3, 2006. The AP reports today:

GOSHEN (AP) — The Indiana Supreme Court has agreed to hear the appeal of a man sentenced to life in prison for the 1998 killing of a Goshen police officer.

If Frankie Salyers, 27, wins the appeal, he could face a sentence of 45 to 65 years in prison, rather than the current life term he's serving at the Indiana State Prison.

The Indiana Supreme Court will hear oral arguments on his appeal Oct. 3 at the court's Statehouse chambers in Indianapolis. * * *

Salyers' appeal attorney, Greg Kauffman, asked the state Supreme Court to review the sentence, citing his client's severe mental problems.

Salyers, who killed Goodwin on Dec. 11, 1998, told police that day he was trying to commit "suicide by cop." In early 1999, Duffin found Salyers incompetent to stand trial because of his mental problems.

He spent the next six years in the state hospital in Logansport until he improved enough to assist in his defense. Salyers pleaded guilty but mentally ill in January 2005 in a deal that meant prosecutors would not ask for the death penalty.

The state Supreme Court originally asked Duffin for a more detailed list of the findings that led to the life sentence. After Duffin filed that list, Kauffman continued with the appeal.

Here is the case description from the Court's calendar:
Frankie Salyers was charged with the murder of Goshen Police Officer Thomas Goodwin. Salyers entered a plea of “guilty but mentally ill,” and the terms of his plea agreement provided the State would withdraw its request for the death penalty and the parties would be free to argue the appropriate length of sentence. Following the sentencing hearing, the trial court sentenced Appellant to life imprisonment without parole. Salyers appeals his sentence directly to the Indiana Supreme Court per Indiana Appellate Rule 4(A)(1)(a). Attorney Salyers; Gregory Kauffman of South Bend, IN. Attorney for State; George Sherman of Indianapolis, IN.

Posted by Marcia Oddi on Saturday, September 23, 2006
Posted to Ind. Sup.Ct. Decisions

Ind. Courts - More on: Carmel annexations before both Court of Appeals and Supreme Court

Not any longer.

On Sept. 12th, Bill Ruthhart of the Indianapolis Star wrote: "The Indiana Supreme Court has agreed to consider the southwest Clay annexation case, and the Indiana Court of Appeals is set to hear arguments in the Home Place annexation case later this month." See the ILB entry here.

Today Ruthhart writes:

Carmel's appeal in the Home Place annexation case was delayed Friday.

Attorneys for both sides were scheduled to argue the case Wednesday in the Indiana Court of Appeals. That court has delayed the proceedings until the Indiana Supreme Court decides Carmel's appeal in the southwest Clay Township annexation case.

Earlier this summer, the southwest Clay case was expedited to the Supreme Court after the city argued the dispute was so important that it should skip the appeals court. No date has been set for oral arguments before the Supreme Court.

The City Council voted to annex both areas in November 2004. Residents in both areas fought the annexations in court, and Hamilton Superior Court Judge William Hughes ruled against Carmel in both cases.

Stephen Buschmann, an attorney who represents Home Place residents fighting annexation, said the appeals court decision -- to delay the Home Place case until the southwest Clay case is resolved -- makes sense.

"While the cases are quite different in many respects, there also are some similarities, and the Supreme Court's decision could have some application in this case," Buschmann said.

"It makes sense because when we go into argue, we'll be arguing under whatever the Supreme Court says in the southwest Clay case."
The decision also did not come as a surprise to Carmel.

"This was not unexpected," said city spokeswoman Nancy Heck. "Since the southwest Clay annexation decision was expedited to the state Supreme Court, it seems reasonable for the Home Place issue to be put on hold until the Supreme Court rules on southwest Clay."

Buschmann said he would expect a decision in the southwest Clay case by early next year at the latest.

"They decided to grant that case an emergency hearing," he said. "So they're going to move it right along."

The outcome of the southwest Clay case won't necessarily impact the Home Place decision, Buschmann said, because the judgments by Hughes in the two cases were different.

In the Home Place case, Hughes ruled against Carmel because he did not believe the city showed how it could afford to annex the 1.6-square-mile area centered at 106th Street and College Avenue.

In the southwest Clay case, Hughes determined Carmel was not specific enough in describing how it would provide services to the 8.3-square-mile area west of U.S. 31 and south of 116th Street.

"Yes, these two cases deal with a similar concept, but really these cases are very, very different," Buschmann said. "But the main issue in both is did Carmel prove its case."

Here is a list of earlier ILB entries on the Carmel Homeplace annexation.

Posted by Marcia Oddi on Saturday, September 23, 2006
Posted to Ind. App.Ct. Decisions

Ind. Decisions - More on the Planned Parenthood records decision

Updating yesterday's entries, Richard D. Walton of the Indianapolis Star reports today:

A minor's right to privacy bars the state from keeping the medical records of underage patients it seized from reproductive health clinics.

That's what the Indiana Court of Appeals ruled Friday. It stated that a lower court erred in refusing to block Medicaid investigators from taking documents from Planned Parenthood of Indiana centers. The judges also ordered the state's Medicaid Fraud Control Unit to return any confiscated records to the trial court until the case is resolved.

At issue is whether a federal law on Medicaid fraud can be used to force health-care providers to turn over records that could identify children younger than 14 who are sexually active. Indiana law regards sex with a child younger than 14 as child abuse, no matter how old the other person is.

State law also compels anyone with knowledge of child abuse to report it to child welfare officials or police.

Attorneys for the state attorney general's office said the documents were needed to determine whether Planned Parenthood reported possible abuse, as required.

Planned Parenthood sued, saying the state's sweeping demands would discourage low-income minors from seeking care.

Last year, Marion Superior Court Judge Kenneth H. Johnson ruled that society's responsibility to protect against abuse trumped all other claims. The appeals court Friday found that the Medicaid unit had investigative authority but ruled by a vote of 3-0 that it could not trample privacy rights.

"We acknowledge the significant public interest in investigating complaints of patient neglect, . . . but granting (the unit's) demand for unlimited access to PPI's minor patients' medical records is neither the only, nor the most effective, nor the least intrusive means of serving those interests," the court wrote.

The Indiana attorney general's office said it was reviewing the ruling but declined further comment.

Planned Parenthood is a nonprofit Medicaid provider that operates 37 clinics in Indiana. Services include pregnancy testing, treatment for sexually transmitted diseases and contraception. Fewer than 5 percent of the patients seen go there for abortions, said Betty Cockrum, the organization's president and CEO. * * *

The appeals court, while ordering that the trial court keep all seized records under seal, said the fraud unit may still refer any neglect complaint to authorities for criminal investigation. The unit also could issue a subpoena for the records.

However, Judge Michael Barnes, in a separate, concurring opinion, found that any subpoena would have to meet strict standards.

"I am skeptical that any subpoena would be sufficiently limited in scope and relevant in purpose to a valid criminal investigation," he wrote.

Posted by Marcia Oddi on Saturday, September 23, 2006
Posted to Ind. App.Ct. Decisions

Courts - "Judge Judy may rule on [Illinois] iPod dispute"

Art Barnum of the Chicago Tribune has an interesting story today on a dispute that may be picked up by the Judge Judy Show. The story begins:

Television's Judge Judy may agree to resolve a dispute over who is financially responsible for a missing iPod. But if not, a DuPage County judge is preparing to do so.

Two Waubonsie Valley High School parents who each blame the other's daughter for the missing iPod have been contacted by representatives of the "Judge Judy" show, they said.

Representatives of the nationally syndicated TV show, which features former family court Judge Judith Sheindlin as an arbitrator hearing small-claims cases, have expressed a possible interest in presenting the case.

If that doesn't occur, DuPage Judge Dorothy French, who presides over small-claims court, has invited Melanie McCarthy and daughter Shannon Derrick of Aurora as well as Stephen Eick and daughter Stephanie of Naperville to an Oct. 18 settlement conference at the DuPage County courthouse.

French set that conference for 4:30 p.m. so that the two freshman students wouldn't have to miss any classes. She said if the issue isn't settled at that conference, she would set a trial date. Judges often offer advice and direction during settlement conferences.

Posted by Marcia Oddi on Saturday, September 23, 2006
Posted to Courts in general

Ind. Law - DNR lifts ban on handguns in state parks

Yesterday a number of Indiana papers reported that handguns will no longer be banned in state parks. Here is the Indianapolis Star report, written by Will Higgins. Some quotes:

It's now legal to carry a handgun in Indiana's state parks, a move seen as the latest victory for the gun lobby in Indiana.

In the past, you had to keep your piece locked in your car. But under a provisional rule change, announced Thursday by the Department of Natural Resources, licensed handgun owners can pack while birding, hiking, picnicking -- whatever. * * *

DNR Director Kyle Hupfer * * * said he came under no political pressure to change park handgun restrictions. "This is just (a regulation) I found and brought to the attention of the governor," he said. "We've been trying to slowly work our way through all aspects of the agency." * * *

In defending the move, Hupfer, who is rarely seen without a holstered pistol, said a gun could come in handy in the woods should a hiker happen upon people making methamphetamine, an illegal drug that can make its users antagonistic. The drug is often brewed in rural, out-of-the-way places.

"If my life or my wife's life was at risk," Hupfer said, "I want to be in a position to protect her and myself."

Phil Bloom of the Fort Wayne Journal Gazette writes:
Hufper also changed three other rules that prohibited the possession of firearms during certain hunting-related activities on private and public land.

Hunters previously could not possess firearms while hunting deer or wild turkeys with archery equipment, nor could dog owners during the dog-running season for opossum and raccoon (typically from mid-February through mid-October). * * *

Gene Hopkins, legislative director for the Indiana Bowhunters Association, agreed.

“I never really understood what the risk was or what the problem was with carrying one in the first place if you have a license or permit,” he said. “Why not be allowed to carry one?

“My initial reaction is it’s a good thing. I’ve heard occasional stories of a hunter running into a pack of coyotes. Typically they are shy, but every now and then you run into a bold one.”

Hupfer cited another reason.

“In certain areas of the state, meth labs are popping up more and more,” he said. “Folks like to be in a position to protect themselves when bow hunting.”

The rule changes are temporary, meaning they stand for one year, but Hupfer plans to ask the Natural Resources Commission to make them permanent.

Coyotes, meth labs and pistol-packing visitors -- still want to visit your local state park?

Patrick Guinane's report in the Munster (NW Indiana) Times offers some assurance that we will be safe on the beaches:

"I don't think you'll find too many people trying to hide one in a Speedo," Hupfer said. * * * The example I give is it's no different than allowing someone to possess a handgun to walk into a bank to do a transaction. It doesn't mean that they're going to rob the bank." * * *

Hupfer says the temporary rules he signed Thursday took effect immediately and can remain in place for up to two years. He plans to ask a state panel to make the rules permanent in November. If the Natural Resources Commission grants preliminary approval, Hupfer said, a public hearing would be scheduled.

In an editorial today, the Indianapolis Star opines:
A hunter and National Rifle Association member, Hupfer insists his decision to lift the ban on firearms in the parks has nothing to do with the NRA's strong political support for Daniels. Rather, he says, it is an affirmation of constitutional rights and an authorization to defend oneself should one encounter, say, a meth lab gang on a hike through the woods. He'd sure want to be "in a position to protect her and myself" should he and his wife get accosted on the trails, Hupfer declared.

Thousands of hikers, boaters and bird-watchers may well be wondering what dangers they could have been arming themselves against all these years. Without doubt, Hupfer and Daniels will face a verbal fusillade from those who feel that allowance of lethal weapons will do the opposite of increasing park safety.

Protestations by Hupfer aside, the power of the gun lobby in Indiana is legendary; and it goes hand in hand with some of the nation's loosest gun laws. Just this year, the legislature approved lifetime gun permits and gave citizens the liberty to shoot fellow humans when they feel threatened.

So far, Indiana's application of the Second Amendment has pleased the NRA and kept the state above the national average in gun-related deaths. Opening the public's family-oriented sanctuaries to firearms is a grotesque extension of this deadly docility. If the DNR director and the governor don't recognize it for what it is and rescind the new policy, the Natural Resources Commission should shoot it down when it comes up for renewal next year.

At a later date the ILB will examine the statute that permits a state agency head to make major policy changes in the law, like this, without any advance warning, opportunity for public input or review, or opportunity for prompt redress.

[More] This from the Chesterton Tribune:

The rule changes take effect immediately.

“There is no reason that law-abiding citizens should lose a means of personal protection and the protection of their family solely because they choose to hunt or visit a DNR property,” Hupfer said.

Hupfer will now submit the rule to the Natural Resource Commission (NRC) for consideration for permanent adoption.

Save the Dunes Council Executive Director Tom Anderson said he finds the announcement unusual, especially since, according to downstate journalists, the National Rifle Association apparently knew about the rule change before the DNR would confirm it.

If the answer is to allow firearms in the state parks, Anderson said, “then what’s the question? Are the parks that dangerous?” He said if the parks have become that dangerous, then the DNR should beef up its patrols.

He expressed concern that DNR staff not allowed to carry firearms will now be expected to oversee park visitors who might be carrying concealed handguns. “As if their job isn’t hard enough now,” he said.

Anderson also cited the fights more than a decade ago at the Indiana Dunes State Park that were linked to alcohol abuse and that led to the ban on alcohol. Since there have been visitor conflicts in the past, he said he questions the wisdom of allowing visitors to carry concealed firearms. “It seems like such a contraction,” he said.

The DNR statement notes that by state law, the DNR director has authority to temporarily modify rules for the DNR. Such modifications are valid for a maximum of one year and can be renewed for an additional period not to exceed one year. In order for any DNR rule modification to become permanent, it must be approved by the NRC after successfully passing through a review process, including a public hearing. Once a rule becomes permanent, it has indefinite legal application but must undergo "sunset" evaluation every seven years.

Posted by Marcia Oddi on Saturday, September 23, 2006
Posted to Environment | Indiana Law

Ind. Law - Liquor laws "outdated and unclear"

"[L]aws surrounding the purchase of alcohol are so murky that I wouldn't be surprised if half of them are made up." So writes columnist Anne Reznicek in the Purdue Exponent. More quotes:

For example, let's take a scenario where you make a quick stop to the local "Pay-Fewer" with your 21-year-old friend to buy some milk and maybe the latest People magazine. Depending on how risque the front cover is. Your 21-year-old friend suddenly remembers he is low on Keystone and goes to grab a case. He meets you in the checkout line and you are standing there, debating whether the rumors of Jessica Simpson dating John Mayer are true, when the cashier suddenly asks to YOU for ID, as well. You're not 21, and you suddenly find yourselves in the parking lot, beerless, bewildered and banned from the store for the day.

How unfortunate for all the parents with underage children that must find babysitters so that they can go buy cooking wine, so they are not banned from grocery stores as well. I mean, I realize that you can't purchase alcohol for underage drinkers. But what does this "law" say, exactly? Do you have to be, say, over 30 and under 10 to purchase alcohol together? Where is the line drawn?

Which leads me to my next concern. Why can you not purchase alcohol from a store on Sunday but can buy it in a restaurant, or while you're golfing? Who decided that "the line" should be drawn right there? And why? As far as I'm concerned, it's an economic hazard to deny alcohol purchases on Sunday. Think about how much more revenue the state would get from the sales tax that they lose when thirsty drinkers make the Saturday-at-midnight drive to the Illinois border. Maybe it could have even saved the Indiana Toll Road from privatization.

Plus, it seems like a greater risk letting golfers buy Bass Ale and dirty martinis while driving golf carts and hitting small, damage-inducing balls than to let your average Joe buy a 12 pack of Budweiser to accompany his Sunday football games on TV.

Maybe someday lawmakers will crawl out from behind their rose colored sunglasses they wear while sunning themselves by their pool, pina coladas in hand and realize that perhaps some of their laws are outdated and unclear.

Or perhaps "outdated and unclear" is irrelevant when it comes to liquor laws ...

Posted by Marcia Oddi on Saturday, September 23, 2006
Posted to Indiana Law

Friday, September 22, 2006

Ind. Decisions - List of Court of Appeals NFP opinions issued for the weeks ending September 15 and 22, 2006

Here is the Indiana Clerk of the Court's list of the Disposition of Cases by Unpublished Memorandum Decision [the Not for Publication (NFP) opinions list] issued by the Court of Appeals for the week ending September 15, 2006.

Here is the Indiana Clerk of the Court's list of the Disposition of Cases by Unpublished Memorandum Decision [the Not for Publication (NFP) opinions list] issued by the Court of Appeals for the week ending September 22, 2006.

Although the NFP opinions are now posted online by the Court, the NFP lists provide a useful overview, and the ILB will continue posting them.

Posted by Marcia Oddi on Friday, September 22, 2006
Posted to NFP Lists

Ind. Decisions - 7th Circuit acts on CWA case, post-Raponas

"U.S. Supreme Court wetlands decision today muddies waters" was the headline to an AP story June 20th about the Supreme Court's 5-4 decision in Rapanos v. U.S.

The NY Times' Linda Greenhouse wrote on June 20th:

The Supreme Court on Monday came close to rolling back one of the country's fundamental environmental laws, issuing a fractured decision that, while likely to preserve vigorous federal enforcement of the law, the Clean Water Act, is also likely to lead to new regulatory battles, increased litigation by property owners and a push for new legislation.

With four justices on one side arguing for a sharp restriction in the definition of wetlands that are subject to federal jurisdiction, and four justices on the other arguing for retaining the broad definition that the Army Corps of Engineers has used for decades, Justice Anthony M. Kennedy controlled the outcome in a solitary opinion.

Today a panel of the 7th Circuit acted on a case out of Wisconsin, U.S. v. Gerke Excavating, which had been remanded to the Circuit Court. Here is today's per curiam opinion:
The Court granted the petition, 126 S. Ct. 2964 (2006), and remanded the case to us for further consideration in light of Rapanos v. United States, 126 S. Ct. 2208 (2006), where the Court reversed two judgments by the Sixth Circuit upholding federal authority over wetlands, as had we.

There was, however, no majority opinion in Rapanos. Four Justices, in an opinion supporting reversal, wanted to limit federal authority over “navigable waters” to “those wetlands with a continuous surface connection to bodies that are ‘waters of the United States’ in their own right, so that there is no clear demarcation between ‘waters’ and wetlands, are ‘adjacent to’ such waters and covered by the [Clean Water Act]. Wetlands with only an intermittent, physically remote hydrologic connection to ‘waters of the United States’ . . . thus lack the necessary connection to covered waters that we described as a ‘significant nexus.’ Thus, establishing that wetlands such as those at the Rapanos and Carabell sites are covered by the Act requires two findings: First, that the adjacent channel contains a ‘wate[r] of the United States,’ (i.e., a relatively permanent body of water connected to traditional interstate navigable waters); and second, that the wetland has a continuous surface connection with that water, making it difficult to determine where the ‘water’ ends and the ‘wetland’ begins.” Id. at 1226-27 (citations omitted).

Justice Kennedy concurred in the judgment to reverse but not in the plurality opinion. The four dissenting Justices took a much broader view of federal authority; Justice Kennedy criticized them as well as criticizing the plurality. When a majority of the Supreme Court agrees only on the outcome of a case and not on the ground for that outcome, lower-court judges are to follow the narrowest ground to which a majority of the Justices would have assented if forced to choose. Marks v. United States, 430 U.S. 188, 193 (1977). In Rapanos, that is Justice Kennedy’s ground.

The plurality Justices thought that Justice Kennedy’s ground for reversing was narrower than their own, because they concluded their extensive and in places harsh criticism of the concurrence by saying that “Justice KENNEDY tips a wink at the agency [i.e., the Corps of Engineers], inviting it to try its same expansive reading again.” 126 S. Ct. at 2234 n. 15. Justice Kennedy expressly rejected two “limitations” imposed by the plurality on federal authority over wetlands under the Clean Water Act, one being the requirement of a “continuous surface connection” between the wetland and the conventional waterway that it abuts. Id. at 2242 (concurring opinion). He accused the majority of being “unduly dismissive of the interests asserted by the United States in these cases. Important public interests are served by the Clean Water Act in general and by the protection of wetlands in particular.” Id. at 2246.

The test he proposed is that “wetlands possess the requisite nexus, and thus come within the statutory phrase ‘navigable waters,’ if the wetlands, either alone or in combination with similarly situated lands in the region, significantly affect the chemical, physical, and biological integrity of other covered waters more readily understood as ‘navigable.’ When, in contrast, wetlands’ effects on water quality are speculative or insubstantial, they fall outside the zone fairly encompassed by the statutory term ‘navigable waters.’ ” Id. at 2248. This test is narrower (so far as reining in federal authority is concerned) than the plurality’s in most cases, though not in all because Justice Kennedy also said that “by saying the Act covers wetlands (however remote) possessing a surface-water connection with a continuously flowing stream (however small), the plurality’s reading would permit applications of the statute as far from traditional federal authority as are the waters it deems beyond the statute’s reach.” Id. at 2246.

Thus, any conclusion that Justice Kennedy reaches in favor of federal authority over wetlands in a future case will command the support of five Justices (himself plus the four dissenters), and in most cases in which he concludes that there is no federal authority he will command five votes (himself plus the four Justices in the Rapanos plurality), the exception being a case in which he would vote against federal authority only to be outvoted 8-to-1 (the four dissenting Justices plus the members of the Rapanos plurality) because there was a slight surface hydrological connection. The plurality’s insistence that the issue of federal authority be governed by strict rules will on occasion align the Justices in the plurality with the Rapanos dissenters when the balancing approach of Justice Kennedy favors the landowner. But that will be a rare case, so as a practical matter the Kennedy concurrence is the least common denominator (always, when his view favors federal authority).

Justice Kennedy’s proposed standard, which we conclude must govern the further stages of this litigation, requires factfinding not yet undertaken by the district court. We therefore remand the case to that court for such further proceedings as may be necessary to apply the standard.


The per curiam panel in this case is Posner, Easterbrook, and Evans. Howard Bashman, in this How Appealing entry, opines that the author must be Posner, based on the typefont used.

Posted by Marcia Oddi on Friday, September 22, 2006
Posted to Environment | Ind. (7th Cir.) Decisions

Ind. Decisions - More on the Planned Parenthood records decision [Updated]

Here is some background to the Planned Parenthood of Indiana v. Steve Carter and Allen K. Pope case decided today by the Court of Appeals.

From March 25, 2005, an ILB entry quoting an Indianapolis Star story:

Attorney General Steve Carter is demanding the medical records of 73 low-income patients from Planned Parenthood of Indiana as part of an investigation that critics say tramples on Hoosiers' privacy rights.

Planned Parenthood filed a lawsuit Monday in Marion Superior Court to prevent Carter's Medicaid fraud unit from seizing confidential medical records of patients under the age of 14 who sought reproductive health care from its clinics.

From an April 19, 2005 ILB entry quoting a Star story:
The clash between the state's duty to protect children from abuse and a patient's right to privacy moved to a Marion County courtroom Monday, drawing Indiana into a national debate on government access to medical records.

Planned Parenthood of Indiana filed suit last month to block the Indiana attorney general from obtaining documents concerning patients younger than 14.

Here is a Dec. 15, 2005 ILB entry headed "Court of Appeals hears oral arguments in Planned Parenthood of Indiana v. Steve Carter, et al." A link to the oral argument is included.

From Feb. 4, 2006, an entry headed "More on: Kansas Supreme Court rules in favor of privacy of abortion patients." See also this entry from Feb. 3, 2006.

From June 22, 2006, an entry headed "Cincinnati judge orders Planned Parenthood to turn over records."

[Updated at 12:50 pm] Deanna Martin has this AP coverage of the Planned Parenthood opinion. Some quotes:

The Medicaid fraud unit argued that it wanted the records to determine whether minors were victims of child abuse or neglect. But the court doubted whether the unit needed Planned Parenthood's records.

"There are less intrusive means by which the IMFCU may determine whether PPI's minor patients were the victims of child abuse or neglect and whether PPI fulfilled its statutory duty to report," wrote Judge Terry Crone.

However, the court said that the fraud unit may still refer any neglect complaint to the appropriate authorities. The unit also could issue a subpoena for the medical records, although such a subpoena could be changed or suppressed because of privacy concerns, the court said.

Judge Michael Barnes wrote a separate concurring opinion to emphasize his believe that any subpoena for records would have to meet strict standards.

"I am skeptical that any subpoena would be sufficiently limited in scope and relevant in purpose to a valid criminal investigation," he wrote.

Richard D. Walton of the Indianapolis Star has this brief story posted about an hour ago:
The Indiana Court of Appeals today reversed a trial court’s decision affirming the right of state investigators to seize medical records of young patients at Planned Parenthood of Indiana clinics.

While ruling that the Indiana Medicaid Fraud Control Unit has a responsibility to investigate whether underage girls were victims of child abuse when they engaged in sex, the judges also found the patients have a Constitutional right to privacy.

“We acknowledge the significant public interest in investigating complaints of patient neglect…but granting (the unit’s) demand for unlimited access to PPI”s minor patients’ medical records is neither the only, nor the most effective, nor the least intrusive means of serving those interests,” the decision says.

The appellate judges remanded the case back to Marion Superior Court and ordered the court to enter a preliminary injunction against the state’s demand for unlimited access to the records.

Meanwhile, the state must deliver any records seized to the trial court, where the documents will remain under seal pending resolution of Planned Parenthood’s privacy claim.

Posted by Marcia Oddi on Friday, September 22, 2006
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Supreme Court decides property tax exemption case

In Dept. of Local Government Finance v. Roller Skating Rink Operators Assoc. d/b/a Roller Skating Assoc., a 7-page, 5-0 opinion, Justice Beohm writes:

We hold that programs of a trade association directed to the development of the private businesses of its members, though “educational” in some sense, do not qualify for property tax exemption as educational activities. * * *

The judgment of the Tax Court is reversed. The decision of the State Board denying an educational purpose exemption under Indiana Code section 6-1.1-10-16 is affirmed.

Posted by Marcia Oddi on Friday, September 22, 2006
Posted to Ind. Sup.Ct. Decisions

Ind. Decisions - Court of Appeals rules against Attorney General in Planned Parenthood records case

In Planned Parenthood of Indiana v. Steve Carter and Allen K. Pope, a 56-page opinion (including a concurring opinion beginning on p. 47), Judge Crone concludes:

In conclusion, we reverse the denial of PPI’s request for preliminary injunction and remand for further proceedings consistent with this opinion. On remand, the trial court shall immediately enter a preliminary injunction in favor of PPI against IMFCU’s demand for unlimited access to its patients’ medical records. As for the medical records currently in IMFCU’s possession, we hereby order IMFCU to return those records immediately to the trial court under seal pending resolution of the trial on the merits of PPI’s informational privacy claim. Notwithstanding the preliminary injunction, IMFCU may still refer any neglect complaint “to an appropriate criminal investigative or prosecutive authority” pursuant to 42 C.F.R. § 1007.11(b)(2). Likewise, the attorney general and an IMFCU investigator may issue a subpoena for the medical records pursuant to Indiana Code Section 4-6-10-3. Reversed and remanded.

NAJAM, J., concurs.
BARNES, J., concurs with separate opinion. [which begins] I agree with the majority that PPI’s patients have a Fourteenth Amendment right to privacy in their medical records and that PPI has standing to assert that right on behalf of its patients. I write separately, however, to emphasize my belief that any IMFCU subpoena of PPI patients’ medical records must at a minimum be reasonable as required by Oman v. State, 737 N.E.2d 1131, 1137 (Ind. 2000), cert. denied, 534 U.S. 814, 122 S. Ct. 38 (2001). * * *

In other words, before a subpoena is issued, I believe a court should be satisfied that (1) there is an independent basis for suspecting criminal wrongdoing and the records sought will be relevant to any such investigation; (2) disclosure of the records is sufficiently limited so as not to unduly infringe upon the constitutional rights of PPI patients; and (3) that the record’s request is sufficiently specific so as to not be unreasonably burdensome to PPI.

Posted by Marcia Oddi on Friday, September 22, 2006
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Transfer list for week ending September 22, 2006

Here is the Indiana Supreme Court's transfer list for the week ending September 22, 2006.

Over two and a half years of Transfer Lists: For other weekly transfer lists (going back to Feb. 2, 2004), check "Indiana Transfer Lists" under "Categories" below, or in the right column.

List of Cases Granted Transfer and Awaiting Decision. The ILB has constructed what will be a dynamic table of cases for which the Supreme Court has granted transfer and which thus are pending disposition. Access it here.

Posted by Marcia Oddi on Friday, September 22, 2006
Posted to Indiana Transfer Lists

Thursday, September 21, 2006

Ind. Law - Communities seek to regulate outdoor wood-fired boilers

Updating this Sept. 11th ILB entry on municipalities taking up the ball on regulating wood-fired outdoor furnaces and boilers, Lauri Harvey Keagle of the Munster (NW Indiana) Times reports today:

PORTAGE | Outdoor wood-burning furnaces may provide a good alternative to rising home heating fuel costs, but some local officials worry they could harm the environment and human health.

The Environmental Management Policy Committee of the Northwestern Indiana Regional Planning Commission is working on drafting a sample ordinance for area municipalities aimed at regulating the devices.

"We're for wood-burning as a heat source and support that, but the problem with outdoor furnaces is they are unregulated, they are separate buildings and there are emissions problems," said Porter County Surveyor Kevin Breitzke, who serves as chairman of NIRPC's executive board.

"When this thing belches out heavy, black smoke, if the chimney is not above the other homes in the area, the smoke churns out at street level."

Outdoor furnaces differ greatly from wood-burning stoves or outdoor patio fireplaces. The units -- which are about the size of a backyard storage shed -- burn wood to heat water or air that is pumped back into the home. Each unit can heat a building anywhere form 1,800 square feet to 20,000 square feet in size.

Most stack heights range from 8 to 10 feet above ground level, whereas traditional chimneys are situated above the roof line and typically stand 20 to 30 feet above ground level.

According to the Indiana Department of Environmental Management, pollutants caused by outdoor furnaces include particulate matter, carbon dioxide and volatile organic compounds including formaldehyde, benzene, polycyclate, aromatic hydrocarbons and a number of other trace chemicals.

IDEM requested public comments on a proposal for developing rules governing outdoor furnaces in December 2005, but the state has yet to take any action.

The state sought comment on which course of action it should take, including establishing emission standards for outdoor furnaces, restricting the type of and use of outdoor furnaces, banning outdoor furnaces or partially banning them or a combination of the options.

Breitzke said the issue was held up, "because of political pressure from downstate and to the east."

"The Amish community has been opposed to this being regulated and some people on large farms," he said. "I can understand that, but when it is being done in a suburban setting next to somebody's house, something has to be done."

The furnaces cost anywhere from $10,000 to $15,000 to purchase and install, Breitzke said.

While there are very few outdoor wood-burning furnaces in the region currently -- NIRPC members could only think of one at a residence in downtown Chesterton -- Breitzke said he expects to see them popping up soon, and in more affluent subdivisions.

He suggests the sample ordinance being worked on by NIRPC include a minimum chimney height and regulations on the distance between buildings where outdoor furnaces are used.

Posted by Marcia Oddi on Thursday, September 21, 2006
Posted to Environment

Law - Sex offenders fight Kentucky residence rules

Andrew Wolfson reports in the Louisville Courier Journal today:

Seven sex offenders have challenged a new Kentucky law that restricts where they can live, saying the measure will force them to abandon their homes, nursing homes and even court-ordered treatment centers.

In a suit filed in federal court in Louisville, lawyers for the offenders say the law is so onerous that it puts many small towns completely off-limits and effectively banishes them from wide swaths of the state's largest cities. * * *

"Most bizarrely," the complaint says, the limits mean that sex offenders who are incarcerated will have to be moved if their jail or prison is too close to a park, school or day-care facility. * * *

The law requires them to move by Nov. 11 and provides no exemption, regardless of age or illness. Initial violations are misdemeanors punishable by up to 12 months in jail; subsequent violations are felonies for which the maximum sentence is five years in prison.

One of the plaintiffs, identified only as John Doe 1, is described as an 80-year-old living in a Lexington nursing home, where he is treated for dementia and heart ailments. The nursing home is being forced to evict him because of the statute, and the nearest facility that meets the criteria in the sex-offender law is in Warsaw, two hours away from the adult son who visits him and assists in his care, the suit claims.

Posted by Marcia Oddi on Thursday, September 21, 2006
Posted to General Law Related

Environment - "Ban on New Forest Roads Upheld by Federal Judge"

Another west coast federal district court decision potentially impacting Indiana today. The LA Times reports, in a lengthy story by Tim Reiterman:

SAN FRANCISCO — A federal judge has restored broad protection to about one-third of national forestland in the lower 48 states, rejecting efforts by the Bush administration to relax a ban on new road building and logging in the most pristine forests.

The decision by U.S. District Court Magistrate Judge Elizabeth D. Laporte gives new life to a hotly contested environmental decree, a Clinton administration policy that sought to protect the parts of the forests that don't yet have any roads in them, including 4.3 million acres in California.

The policy responded to concerns that areas of the forests that are sanctuaries for wildlife and reservoirs of clean water would be damaged by logging and other types of development.

America's national forests, once the province of timber companies and only the most intrepid outdoor enthusiasts, have become destinations for millions of people — hikers and skiers; hunters and fishermen; river rafters and mountain bikers — many of whom seek out the least disturbed areas.

In her ruling Tuesday, Laporte declared that the Bush administration could not weaken the ban until it complied with requirements of the federal Endangered Species Act and the National Environmental Policy Act.

While the ruling does not put an end to the controversy, environmentalists and state officials believe that it will make it difficult for federal officials to allow the cutting of many trees or building of new roads across the nearly 44 million acres of forest at issue.

A list at the end of the story indicates that 8,000 acres in Indiana are potentially affected.

Posted by Marcia Oddi on Thursday, September 21, 2006
Posted to Environment

Ind. Courts - Another Courthouse looks at security upgrades

Darrell Smith of the Connersville Examiner reports:

Security improvements to the Fayette County Government Center could come next month through an Indiana Department of Homeland Security grant.

“We don’t have a very secure courthouse,” Fayette Superior Court Judge Ron Urdal told Fayette County Commissioners during Tuesday’s meeting.

A security plan was presented by Urdal, Circuit Court Judge Daniel Pflum and Mark Barclay of Barclay Group of Anderson, Ind.

Urdal said he and Pflum received notice of a $50,000 grant opportunity for courthouse security from IDHS in August.

All 92 Indiana counties are eligible for the grant.

No mention in Fayete County of "a couple of instances of when the judge has taken away a knife from somebody in the courtroom," as in Jasper County.

Posted by Marcia Oddi on Thursday, September 21, 2006
Posted to Courts in general

Ind. Decisions - Court of Appeals issues 2 today (and 2 NFP)

For publication opinions today (2):

In George Reyes v. State of Indiana, a 15-page opinion, Judge Mathias writes:

George Reyes’s (“Reyes”) probation was revoked in Adams Circuit Court after he tested positive for marijuana and cocaine use. Reyes was ordered to serve his previously suspended 2070-day sentence. Reyes appeals and raises two issues, which we restate as: I. Whether the trial court abused its discretion when it admitted an affidavit into evidence where Reyes was denied the opportunity to confront and cross-examine the affiant; and, II. Whether the evidence is sufficient to support the revocation of Reyes’s suspended sentence.

Concluding that good cause existed for denying Reyes’s limited right to confrontation and that the evidence is sufficient to support his probation revocation, we affirm.

FRIEDLANDER, J., concurs.
BARNES, J., concurs in result with opinion. [which begins] I concur in the result reached by the majority. However, I respectfully disagree with the way in which it reached that result. I believe that requiring the State to demonstrate the practical unavailability of a witness before being permitted to introduce reliable hearsay evidence during a probation revocation hearing is unnecessarily burdensome.

In my view, the Seventh Circuit has correctly concluded that if the State seeks to introduce substantially reliable hearsay during a probation revocation hearing, there is no need to additionally demonstrate that it would be impracticable to obtain the witness’presence at the hearing.

In Madison Center, Inc. v. R.R.K., et al., a 6-page opinion, Chief Judge Kirsch writes:
Madison Center, Inc. (the “Center”) brings this interlocutory appeal from the trial court’s order denying the Center’s motion for summary judgment. The issue before us is whether the trial court erred when it determined that R.R.K.’s complaint alleged a premises liability claim not governed by the Indiana Medical Malpractice Act1 (the “Act”). We affirm.
NFP civil opinions today (2):

James L. Mazzochi v. John R. Cromer (NFP)

Kathryn Swinscoe v. Greene County Department of Child Services (NFP) - termination of parental rights, affirmed.

NFP criminal opinions today (0) (link to cases):

Posted by Marcia Oddi on Thursday, September 21, 2006
Posted to Ind. App.Ct. Decisions

Ind. Courts - More on: Leo Burns' ballot battle for Cass County Circuit Court Judge continues

Updating yesterday's entry, the Logansport Pharos-Tribune reports:

Cass Circuit Judge Julian Ridlen has taken a case under advisement that could determine who will succeed him.

On Tuesday, Democrat Leo Burns appeared in his court to begin the process of appealing a decision by the Indiana Election Division to leave Burns off the November ballot in his bid to be Circuit Court judge. His candidacy was not certified after Cass Democratic Chairman Matt Meagher did not file papers from a caucus called to select Burns as the party nominee. Burns filed his candidacy with the state.

Logansport attorney Jim Austen, co-counsel for Burns, asked the court to rule in his client’s favor based on evidence he had “substantial compliance” with election law and that no word of noncompliance was sent or spoken to Burns prior to election deadlines for filing all necessary documentation.

A Dubois County attorney representing the election division said the legislature has acted to prevent rulings on candidacy eligibility on a “case by case” basis. He asked Ridlen not to attempt to do what the legislature has done, which is clarify laws on election eligibility.

Courtney Justice, Burns’ other co-counsel, argued that he finds it hard to believe Ridlen should not be allowed to rule in a case involving a candidate in the county.

The hearing concluded at approximately 11:30 a.m. Tuesday. Ridlen told the attorneys he would attempt to have a ruling within 48 hours.

If Burns is added to the ballot, it would create a contested race for the office. Republican Sheryl Pherson won a plurality in a three-way race for the Republican nomination in May. Democrats did not field a candidate in the primary but selected Burns in a caucus prior to the state deadline for filling vacancies.

Posted by Marcia Oddi on Thursday, September 21, 2006
Posted to Indiana Courts

Ind. Courts - Even more on "Montgomery County judges issue mandate for staff raises" [Updated]

See this July 19th, 2006 ILB entry for background on this judicial mandate case out of Montgomery County.

Today the AP reports:

CRAWFORDSVILLE, Ind. - Montgomery County must raise the pay of nine court employees to make their salaries competitive with court workers in other Indiana counties, a special judge ruled.

Officials say the county can't afford to pay the raises, which Special Judge Julian L. Ridlen said would add about $81,000 to the county's 2006 budget.

Ridlen, the Cass circuit judge, also ordered Montgomery County to pay $128,000 in court costs and attorney fees. The case will go to the Indiana Supreme Court in 30 days unless Montgomery County officials waive the judicial review.

"If the Supreme Court rules for the mandate we will have to borrow the money. It's going to put us in a world of hurt," said Terry Hockersmith, the county council president. He said the financially strapped county had to borrow money to begin the year and already had to cut $1.2 million from its budget.

Riplen's order, issued Monday, upheld an August 2005 mandate issued by Montgomery County's three judges that required the county to increase pay for each court's reporter, administrative assistant and secretary/balliff.

Riplen also found county Auditor Jeff Dossett in contempt, saying he had refused to pay the mandated raises from the Judges Bond Administration Fund for the last four months of 2005.

The Judges Bond Administration Fund, which uses court-generated fees as it source, has enough money to pay for the raises without affecting other county employees, Riplen wrote, but no money has been deposited in the fund since August 2005.

Riplen said the money, amounting to $15,000, apparently had been placed in the General Fund and ordered Dossett to account for it.

Melissa Franklin reports for the Crawfordsville Journal-Review:
"I am absolutely shocked," said Montgomery County Council President Terry Hockersmith. "I can't believe that Ridlen agreed with everything the judges said. I am extremely disappointed that he didn't look at all the facts in this case. We have already had to cut $1.2 million from the budget. Obviously he just really doesn't care what happens to this county."

Taylor said the County Council has 30 days to decide whether or not to have the case reviewed by the Indiana State Supreme Court.

"Unless expressly waived by the Council in writing within thirty days after the entering of the judge's ruling, it will be automatically reviewed by the Supreme Court promptly on expiration of such 30 day period," Montgomery County Attorney Dan Taylor said referring to Trial Law Rule 60.5 Procedure. * * *

On August 16, 2005, Montgomery County Judges Thomas Milligan of Circuit Court, Judge David Ault of Superior Court, and Judge Peggy Lohorn of Superior Court II, issued a mandate order requiring the Montgomery County Council to increase the salaries for the Montgomery County Court personnel. The judges issued an amended order for mandate of funds on August 22, 2005. The Council refused to increase the salaries of the Court staff, and thus refused to comply with mandate orders, Ridlen's ruling said.

A bench trial was held on July 17 and 18 with Judge Ridlen. The parties were then able to submit their final arguments to Ridlen for review.

"The Judges have, for many years, requested that the Council significantly increase the salaries of their employees so that those salaries are competitive with salaries paid to court staff in other Indiana counties," Judge Ridlen stated in his findings. "The Council, however, has not addressed the necessity of being competitive with respect to court staff salaries in comparable or in neighboring counties. Most of the budget years reflect only a nominal increase in staff salaries to equal the percentage salary increases paid to other County employees, and generally reflecting a cost of living type of adjustment. In some years, the Council has actually provided court staff with no salary increases." * * *

The judges submitted claims for payment of the new salaries from the Bond Administration Fee Fund to Montgomery County Auditor Jeff Dossett. However, Dossett, without counsel, refused to comply with the amended mandate order which required him to pay salary increases to the Montgomery County Court staff from the Judges' Bond Administration Fund during the last four months of 2005.

Judge Ridlen's findings stated, aside from whether the matter was developed to include Dossett in the mandate proceeding, it is clear that Dossett has misdirected at least $15,000 in fees from the Bond Administration Fund to the County General Fund since August, 2005. Ridlen ordered in his findings that Dossett should immediately make an accounting of all misdirected funds and transfer the same to the Bond Administration Fund.

Ridlen's ruling said Dossett willfully refused to comply with the amended mandate order and, unlike the Council, failed to appeal that order or otherwise appear or participate in this proceeding to seek or show cause why he did not comply with the order. Ridlen therefore finds that Dossett is in contempt of court for his willful failure to comply with the judges' amended mandate order, and Dossett is to immediately make an accounting of all misdirected funds and transfer the same to the Bail Bond Administration Fund.

"I don't think he broke any laws," Milligan said referring to Dossett.

"It seems to be a poor court ruling," Dossett said. Dossett explained that the judges' mandate is not an order unless it survives a court challenge. Dossett had only asked the Auditor's Association for legal advice before the trial through the law firm of Barnes & Thornberg. He said to get any more advice would be costly, and he doesn't feel free to ask for any until he talked with the Council. "I thought that Dan Taylor was my representation at the trial," Dossett said. "Dan Taylor represents the county, and I am part of the county."

The ILB is attempting to obtain a copy of the opinion.

[Update] Thanks to the Crawfordsville Journal-Review, the mandate ruling is now avaiable from their site, at the very bottom of this morning's story. It is a very large (0ver 2 MG) scanned documents.

For more on judicial mandates, see my article, "Separation of Powers in the County Courthouse," 49 Res Gestae 2 (Sept. 2005), pp. 17-19, available here.

Posted by Marcia Oddi on Thursday, September 21, 2006
Posted to Indiana Courts

Ind. Decisions - "Appeals court upholds dealer's sentence"

"Appeals court upholds dealer's sentence" is the headline to a brief story today in the Muncie Star-Press about yesterday's ruling in the case of Ronald Poling v. State of Indiana - access ILB entry here, 3rd decision.

Posted by Marcia Oddi on Thursday, September 21, 2006
Posted to Ind. App.Ct. Decisions

Wednesday, September 20, 2006

Environment - Important decision impacting the Great Lakes

"Deadline set for ballast regulation: EPA must control ships' discharged water by 2008, U.S. judge rules" was the headline to this story yesterday by Dan Egan in the Milwaukee Journal-Sentinel. Some quotes:

It is ironic, but one of the best things to happen to the Great Lakes in the last century was Ohio's Cuyahoga River catching fire in 1969.

The blaze in the Lake Erie tributary spurred an embarrassed nation to pass the 1972 Clean Water Act, which led to sweeping pollution rules that dramatically improved water quality across the country, including the Great Lakes, long a dumping ground for Midwest industry.

This week, something else caught fire: the idea that the bugs, critters and fish spilling into U.S. waterways from overseas freighters are not merely an aquatic nuisance, but a form of biological pollution that must be regulated just like any other noxious substance spewing from a pipe or a smokestack.

A federal district judge in northern California ruled Monday that in 2008, the Environmental Protection Agency must begin regulating contaminated ballast water discharges from freighters under the Clean Water Act, something the agency has refused to do since the 1970s. The case was initially brought by a coalition of West Coast environmental groups that were later joined by six Great Lakes states, including Wisconsin.

Judge Susan Illston acknowledged that her order may have a "dramatic effect" on both the shipping industry and the EPA. Yet the plaintiffs argued that doing nothing could have its own dramatic results, and the judge evidently agreed.

The Great Lakes alone are now home to at least 182 non-native species. A new one is found, on average, every 6 1/2 months, and scientists blame overseas ships plying the St. Lawrence Seaway for nearly 70% of the invaders that have arrived since 1970. * * *

The EPA has long resisted getting its hands dirty with the ballast water issue, pointing to its own rule that exempts itself from regulating the shipping industry under the Clean Water Act for discharges that are "incidental to the normal operation of a vessel." Ballast water is used to steady ships in open seas and is often discharged when ships arrive in port to take on a load of cargo.

Illston, however, ruled that regulation, even if it has been in place for more than three decades, is "plainly contrary to the congressional intent" of the Clean Water Act, a law that has the overarching goal "to restore and maintain the chemical, physical and biological integrity of the nation's waters."

"There is no dispute that invasive species have been, and continue to be, introduced into the marine ecosystems of this country through ballast water discharges," Illston wrote in her 21-page ruling. "There is also no dispute over the consequences that their introduction can have on the environment."

There is much more reported in ther story. In addition, the paper has a side-bar listing its earlier coverage on invasive species in the Great Lakes. Also, this graphic on the ballast water cycle.

I'm trying to locate Federal District Judge Illston's opinion.

Here it is, Northwest Environmental Advocates v. U.S. EPA.

For background, see this ILB entry from January 25, 2005, which also includes this:

See this ILB entry from July 17, 2005 [sic., should read "2004"] discussing the Great Lake states' attorneys general suit. Indiana was not among the seven states participating.
Looking at the case's caption, now that I've downloaded it, there are only six Great Lakes states participating. Ohio is also missing.

And, as noted in this entry yesterday, Indiana (but not Ohio) sided with Duke Energy in another, totally different, EPA case.

Posted by Marcia Oddi on Wednesday, September 20, 2006
Posted to Environment | General Law Related

Courts - "Too Smart for his Own Good"?

7th U.S. Circuit Court of Appeals Judge Richard A Posner's new book is the subject of a commentary today by the Washington Post's Andrew Cohen. Cohen both cites The New York Times' respected book reviewer Michiko Kakutani's review of the prolific author Posner's lastest book, plus adds a critique of his own, leading to Cohen's title for his piece, "Too Smart for his Own Good."

Cohen begins:

Like Michiko Kakutani, I just finished reading, "Not a Suicide Pact: The Constitution in a Time of National Emergency," the latest book written by 7th U.S. Circuit Court of Appeals Judge Richard A Posner. And, like Kakutani, I thought it was a real crock.

The famous book critic says that "many of Judge Posner's arguments in this book are riddled with self-serving contradictions" and "other arguments in this volume are no more than unsubstantiated -- indeed, highly dubious -- assertions... By the end of this chilling book," Kakutani writes, "the reader realizes that Judge Posner is willing to use virtually any argument -- logical or not -- to redefine constitutionally guaranteed rights like freedom of speech during wartime."

Here is Kakutani's review, titled "A Jurist’s Argument for Bending the Constitution."

Posted by Marcia Oddi on Wednesday, September 20, 2006
Posted to Courts in general

Ind. Courts - Leo Burns' ballot battle for Cass County Circuit Court Judge continues

Mix 102 out of Logansport reports today, via a story by Joe Ulery:

Attorneys have until tomorrow to submit arguments in the Leo Burns' ballot battle.

The Democratic candidate for Cass County Circuit Court Judge is suing to get his candidacy certified and his name on the ballot.

The Indiana Election Division did not certify him, saying that his paperwork was filed in the wrong office.

Jim Austen is one of two attorneys representing Burns. He says, "our argument was essentially that there is a doctrine of substantial compliance available in Indiana where a candidate essentially complies with all the terms of the statue; they're still entitled to be put on the ballot, that's recognized in other statues, and we're simply asking the court to apply that here.

Circuit Court Judge Julian Ridlen is hearing the case that will have an impact on who replaces him on the bench.

Earlier entries on this story are available from May 14th and September 10th.

Posted by Marcia Oddi on Wednesday, September 20, 2006
Posted to Indiana Courts

Ind. Decisions - Court of Appeals issues 3 today (and 7 NFP) [Updated]

For publication opinions today (3):

In Michele Lynn Alli, et al. v. Eli Lilly and Company, a 12-page opinion, Judge Vaidik writes:

Michele Lynn Alli (“Michele”), individually and as personal representative of the estate of her late husband Daren Scott Alli (“Daren”), appeals the trial court’s grant of partial summary judgment in favor of Eli Lilly & Company (“Lilly”), the manufacturer of the antidepressant Prozac, in this products liability and wrongful death action. Specifically, Michele contends that the trial court erred in determining that the substantive law of Michigan—which is the state where her late husband lived, worked, was treated for depression, and committed suicide—applies instead of the substantive law of Indiana, which is where Lilly is headquartered. Applying Indiana choice-of-law analysis for tort cases, we conclude that the substantive law of Michigan applies to this case. In addition, because Michigan products liability law, which grants immunity to drug manufacturers unless certain narrow conditions are met, does not violate Indiana’s public policy, we decline to apply the public policy exception to this case. We therefore affirm the trial court. * * *

The Michigan legislature has decided to give drug manufacturers an absolute defense unless certain narrow conditions are met. There is nothing immoral, unnatural, unjust, or prejudicial to the general interests of the citizens of Indiana about § M.C.L. 2946(5). We decline to apply the public policy exception to this case and affirm the trial court’s grant of partial summary judgment in favor of Lilly.

In Rick L. Smith v. State of Indiana, a 6-page opinion involving an interlocutory appeal of the trial court’s order denying defendant's motion to dismiss one count of child seduction, defendant claimed that he was not covered by the statute because he was niether a "child care worker" nor "employed by a school corporation" under IC 35-42-4-7. Senior Judge Hoffman writes
[T]he school superintendent testified at the motion to dismiss hearing that bus drivers’ duties included managing the children on the bus, and disciplining the children. The bus driver is often the only adult on the bus. This evidence is sufficient to support the trial court’s conclusion that Defendant was a “child care worker.” He was able to discipline like a parent, and as the only adult on the bus, was in a position of authority. * * *

In the present case, although Defendant was directly compensated by another entity, Defendant directly reported to and was supervised by the school corporation. Defendant’s compensation included payment for the services rendered for the school corporation. Therefore, Defendant’s compensation may not come from the school, but is for his employment as a school bus driver for the school. Defendant’s claim here that he is not a child care worker must also fail.

The trial court did not err by denying Defendant’s motion to dismiss.

In Ronald Poling v. State of Indiana, a 13-page opinion, Judge Crone writes:
Case Summary. Ronald Poling appeals his convictions for three counts of neglect of a dependent as a class C felony. We affirm in part, reverse in part, and remand.

Issues. The dispositive issues are as follows: I. Whether Indiana Code Section 35-46-1-4 violates the Proportionality Clause of the Indiana Constitution; and II. Whether Poling’s convictions for six neglect offenses violate the Indiana Constitution’s prohibition against double jeopardy. * * *

Indiana caselaw dealing with the Proportionality Clause has primarily involved situations where the defendant argues that a less serious crime garners a more severe punishment than a more serious crime. * * * [I]n the instant case, the crimes of neglect of a dependent as a class C felony and neglect of a dependent as a class D felony, each carrying a different sentencing range, can be proven with identical elements. Prosecutors would likely pursue the C felony charge, and thus a longer sentence, for defendants charged with this crime.

Because we agree with Poling that Indiana Code Section 35-46-1-4 is unconstitutional, we hereby reduce his three class C felony convictions to class D felony convictions and remand with instructions to the trial court to resentence Poling accordingly.7 We share the trial court’s hope that the legislature will revisit Indiana Code Section 35-46-1-4 for the purpose of clarifying and distinguishing the elements of neglect of a dependent as a C felony and neglect of a dependent as a D felony so as to comply with Indiana’s Proportionality Clause. * * *

[With respect to the second issue] There was no double jeopardy violation here.

Affirmed in part, reversed in part, and remanded.

NFP civil opinions today (2):

InAnna Calabrese v. Robert Calabrese (NFP), a 29-page opinion, Judge Riley writes:

Appellant-Petitioner, Anna Calabrese (Anna), appeals the trial court’s judgment dissolving her marriage to Appellee-Respondent, Robert Calabrese (Robert). We affirm in part, reverse in part, and remand.

Anna raises nineteen issues on appeal, which we consolidate and restate as the following seven issues: (1) Whether the trial court violated Anna’s rights by holding the dissolution hearing when she was not represented by counsel; (2) Whether the trial court erred in ordering Anna and Robert’s son, R.C., to attend school outside the home and in refusing to admit evidence that Anna is an experienced home-schooling teacher; (3) Whether the trial court violated Provisional Orders in its division of marital property; (4) Whether the trial court properly ordered Robert to have supervised visitation with R.C.; (5) Whether the trial court’s award of spousal maintenance is adequate; (6) Whether the trial court’s child support order is adequate; and (7) Whether the trial court properly addressed Anna’s need for a life insurance policy, health insurance coverage, and reimbursement for various bills. * * *

Based on the foregoing, we conclude that the record in this case supports the trial court’s findings and judgment in the Decree, except for its order as to spousal maintenance for Anna. On that issue alone, we remand with instructions for the trial court to re-evaluate Anna’s award of spousal maintenance while considering her lengthy absence from the workforce and her time spent caring for R.C.

Dennis Conwell v. Integra Bank (NFP) - "we conclude that the trial court’s finding that the Conwells were in default of the Note was not clearly erroneous. Affirmed."

NFP criminal opinions today (4) (link to cases):

Roy G. Lewis v. State of Indiana (NFP)

Trent Buffington v. State of Indiana (NFP)

Andre Thomas v. State of Indiana (NFP)

James Lane v. State of Indiana (NFP)

William Lloyd v. State of Indiana (NFP)

Posted by Marcia Oddi on Wednesday, September 20, 2006
Posted to Ind. App.Ct. Decisions

Courts - Federal sentencing in chaos

Chaos in Sentencing is the tile to an excellent article in the Washington Post today by Andrew Cohen. It begins:

While you were out on summer break, and while members of Congress were worried about their own upcoming elections and how to blame one another for most of the nation's ills, two vital court rulings were issued in August highlighting the extent to which our federal sentencing rules and policies are broken. You won't be hearing any politicians talking about something as obtuse as criminal sentencing between now and November. But come next January, and in the months and years to come, the issue will be A-list materials for judges, lawyers and legislators looking for ways to fix the problem. And there is a problem, a huge one.

Last month, the irrepressible U.S. District Court Judge William G. Young in Boston dropped upon an unsuspecting nation a 125-page ruling -- a mini-treatise, really -- on what is currently wrong with federal sentencing law, why this is so, and what judges and elected officials can and should do about it. Then, a few days later, a divided 8th U.S. Circuit Court of Appeals overturned a capital sentence for a fellow name Jason Getsy after concluding that his punishment from the Ohio courts was "arbitrary" and unfair and thus a violation of the Eighth Amendment's prohibition against "cruel and unusual" punishment.

Taken together, the two rulings represent the sorry state of the art in an area of the law that the United States Supreme Court tried to revamp last year in United States v. Booker when it held unconstitutional the mandatory nature of the Federal Sentencing Guidelines. Both orders focus primarily upon plea bargains and their corrosive impact upon fairness in federal sentences. Both orders take to task the existing sentencing regime, such that it is. Both remind us of the constitutional need for a nexus between crime and punishment, verdict and judgment. Both make compelling cases for how and why Congress and the Supreme Court have utterly failed to fix sentencing problems that have been apparent and growing worse for years.

Read the article in conjunction with this entry by Douglas Berman in Sentencing Law Blog.

Posted by Marcia Oddi on Wednesday, September 20, 2006
Posted to Courts in general

Law - Grandparents' visitation rights

Diana Skaggs, of the Kentucky Divorce and Family Law Blog, has this entry today titled "Two New Post-Troxel Grandparent Cases." She references a Findlaw column by Hofstra University law professor Joanna Grossman, headlined "Two More State Supreme Courts Uphold Grandparent Visitation Laws - Despite the Supreme Court's Holding that They Can Be Unconstitutional."

Grossman also wrote an article last November titled "A Victory for Grandparents: The Ohio Supreme Court Upholds a Statute That Gives them Visitation Rights With Grandchildren."

The ILB has had entries on the Ohio ruling and the California ruling referenced by Grossman.

Grossman, in her most recent article, notes, under the heading "The National Landscape: Many Visitation Statutes Remain Intact":

Importantly, though, the Troxel Court did not rule in such a way as to necessitate the invalidation of grandparent visitation laws nationwide.

Granted, some third-party visitation statutes have been struck down under Troxel. Iowa, for example, struck down its law, criticizing the legislature's substitution of "sentimentality for constitutionality," to the detriment of parental decisionmaking.

However, within the last two years, California and Ohio have both upheld their state's laws against similar challenges, and, within the last month, Pennsylvania and Utah have joined them.

She concludes:
Here are some of the factors that make a statute likely to survive: If it sensibly narrows the class of parties with standing to sue; if it permits third-party requests only when the family is not intact because of death or divorce; and if it expressly creates a presumption in favor of the parent's wishes.

These factors were crucial to these two newest decisions from Pennsylvania and Utah. Future cases are likely to rely on them as well, as state supreme courts navigate the post-Troxelworld, trying to uphold the Supreme Court's mandate that parental preference, at a minimum, be given "special weight."

Here is Indiana's 1997 grandparent visitation statute, IC 31-17-5 .

Here is an ILB entry from August 2004 commenting on a then-newly passed Illinois law enabling grandparents to file for visitation rights, and linking to the 6/2/04 entry on the Indiana Court of Appeals opinion, Maser v. Hicks, holding that "Step-Grandfather lacked standing as a 'grandparent' under the Grandparent Visitation Act to petition for grandparent visitation rights." That ruling turned on the definition of "grandparent" in IC 31-9-2-77.

The August 2004 entry brashly began: "There have been a number of Indiana decisions on grandparents' visitation rights and I plan to do an article on this at some point in the near future." I was overly ambitious.

Posted by Marcia Oddi on Wednesday, September 20, 2006
Posted to General Law Related

Courts - "Everyone avoids Mason [Ohio] judge"

Janice Morse of the Cincinnati Enquirer writes in a lengthy report today that begins:

When state troopers patrol for speeders and drunken drivers along the northern stretches of Interstate 71, many take pains to avoid pulling over cars in Mason or Deerfield Township.

That's just one example of how police and prosecutors are doing anything they can to stay away from Mason Municipal Judge George Parker, an elected first-term judge. He has stirred up so much controversy since taking office in 2002 that he faces a disciplinary hearing in January at the Ohio Supreme Court. [See earlier ILB entry here]

Regardless of the outcome of those hearings, taxpayers already have paid a price. An Enquirer investigation reveals that even as avoidance tactics have caused the number of court cases handled by Parker to decline, the court's budget has significantly increased.

Posted by Marcia Oddi on Wednesday, September 20, 2006
Posted to Courts in general

Law - More on: Federal judge strikes down Kentucky law prohibiting wine shipments

Updating this ILB entry from August 22nd, Robert Schoenberger of the Louisville Courier Journal reports today that:

Kentucky is appealing a federal court decision allowing small wineries in and out of the state to ship to Kentucky customers who order over the telephone from catalogs or from the Internet.

Last month, U.S. District Judge Charles Simpson of Louisville struck down a requirement that customers buy the wine in person at the winery, saying it treated Kentucky wineries more favorably than out-of-state ones. * * *

The ruling came in a lawsuit filed by the Huber Winery of Southern Indiana. Dana Huber, spokeswoman for the winery, said despite last month's ruling, Huber's has not been taking orders from Kentuckians because it knew an appeal was likely.

"We knew we could not ship in Kentucky until that grace period (for filing appeals) had passed," Huber said. The winery will study the state's appeal before deciding its next move, she said.

Posted by Marcia Oddi on Wednesday, September 20, 2006
Posted to General Law Related

Tuesday, September 19, 2006

Ind. Courts - Jasper County Courthouse may have increased security

Tricia Braun of Newslink Indiana reports:

Jay County is applying for grants to increase security in its courthouse.

Emergency Management officials plan to add metal detectors outside two courtrooms, and to post deputies on the site before and after court is in session.

Lack of security in the courtrooms has been a problem, said Jay County Commissioner Faron Parr.

"There have been a couple of instances of when the judge has taken away a knife from somebody in the courtroom," Parr exlpained.

Parr said the added security is part of a long-term plan to secure the entire courthouse.

Here is information on the Jay County courts.

Posted by Marcia Oddi on Tuesday, September 19, 2006
Posted to Indiana Courts

Law - Re the nominee to be administrator of the Office of Information and Regulatory Affairs at the White House's OMB

Cindy Skrzycki, who writes the weekly The Regulators column for the Washington Post, writes today about the Bush nominee to be administrator of the Office of Information and Regulatory Affairs at the OMB. Some quotes:

Susan E. Dudley , President Bush 's nominee to become his new regulatory review chief, has written extensively about federal rulemaking for years, a miles-long paper trail that is providing ammunition for her opponents.

Business supporters say Dudley, director of regulatory studies at George Mason University's Mercatus Center , is experienced, analytical and dispassionate in expressing her belief that the market will correct most problems and that rules should be subject to a tough cost-benefit test. Public interest groups fighting the nomination say those writings disqualify her for the job.

The new job, administrator of the Office of Information and Regulatory Affairs at the White House's Office of Management and Budget , is an important one. It makes final decisions on which major federal regulations are approved, which are sent back for more work and which never see the light of day.

With so much at stake, many participants expect the same kind of fight that the previous administrator, John D. Graham, faced five years ago, one that brought him 37 "nay" votes on his confirmation in the Senate. * * *

Some of her opponents say Dudley is more radical than her predecessor.

"Everyone thought Graham was a true believer, but there were limits beyond where even he would go," said Robert Shull , deputy directory for auto safety and regulatory policy at Public Citizen, which also opposed Graham. "I don't know if there are any limits with Dudley. She has a really distorted view of economics."

"She is rock solid," said Thomas Sullivan , chief counsel in the Small Business Administration 's Office of Advocacy . Sullivan said Dudley's prolific paper trail will be an asset, not a liability, "because it gives amazing insight into her philosophy."

With little time left in this session of Congress, experts on both sides are betting that a Dudley confirmation hearing, not yet scheduled, will become a proxy for the administration's record on regulation but will not lead to a Senate vote. More likely, they say, is a recess appointment after Congress adjourns. If that comes early next year, Dudley would be able to serve until the end of the Bush administration.

Posted by Marcia Oddi on Tuesday, September 19, 2006
Posted to Administrative Law | Environment | General Law Related

Ind. Decisions - A 7th Circuit opinion, albeit not from Indiana

Normally the ILB only covers 7th Circuit opinions that originated with Indiana cases. However, a case today picked up by How Appealing is not to be missed, at least in-so-far as the first paragraph is concerned. The case is Martha Louis Piggee v. Carl Sandberg Collge, and the opinion by Judge Wood begins:

In September 2002, Martha Louise Piggee, who was then a part-time instructor of cosmetology at Carl Sandburg College, gave a gay student two religious pamphlets on the sinfulness of homosexuality. The student was offended and complained to college officials. After the college looked into the matter, it found that Piggee had sexually harassed the student. It admonished her in a letter to cease such behavior, and the following semester it chose not to retain her. Piggee sued the college, the members of its board of trustees, and various college administrators (including one person who directed the mortuary science program, whose offense was to clean out Piggee’s refrigerator and throw away her noodles at some point during the spring of 2003) under 42 U.S.C. § 1983. She asserted, among other things, that the measures the college took violated her due process rights, her rights under the Free Exercise, Equal Protection, and Free Speech clauses of the Constitution, and that the college’s sexual harassment policy was constitutionally infirm. Noting that none of the facts was seriously in dispute, the district court entered summary judgment for the defendants. We affirm.

Posted by Marcia Oddi on Tuesday, September 19, 2006
Posted to Ind. (7th Cir.) Decisions

Ind. Decisions - 7th Circuit issues one Indiana decision today

In U.S. v. Gilbert (SD Ind., Larry J. McKinney, Chief Judge), a 15-page opinion, Judge Rovner writes:

A jury convicted James D. Gilbert of possessing a firearm in interstate commerce after previously having been convicted of a felony offense. See 18 U.S.C. § 922(g)(1). At sentencing, the district court determined that three of Gilbert’s prior convictions constituted violent felonies under the Armed Career Criminal Act, 18 U.S.C. § 924(e)(2)(B), and that determination triggered a mandatory minimum prison term of fifteen years, § 924(e)(1). The court sentenced him to a term of just under twenty years. Gilbert appeals his sentence, contending that the district court erred in treating his prior conviction in Indiana for criminal confinement as a violent felony conviction. Consistent with our holding in United States v. Hagenow, 423 F.3d 638, 644 (7th Cir. 2005), we agree. We therefore vacate Gilbert’s sentence and remand for resentencing. * * *

The record does not disclose that Gilbert was convicted of a form of criminal confinement that required a finding of force or threat of force. The Indiana criminal confinement statute expressly recognizes that the offense can be committed through non-violent means such as fraud or enticement, and as we concluded in Hagenow, there is nothing about the offense as defined that poses an inherent risk of serious physical injury to another even when the crime is committed without resort to force. The district court therefore erred in treating Gilbert’s prior conviction for criminal confinement as a conviction for a crime of violence. Gilbert’s sentence is VACATED, and the case is REMANDED for resentencing consistent with this opinion.

Posted by Marcia Oddi on Tuesday, September 19, 2006
Posted to Ind. (7th Cir.) Decisions

Ind. Decisions - Court of Appeals issues 5 today (and 10 NFP)

For publication opinions today (5):

In Michael R. Daffron v. Deputy Richard Snyder #2741, et al, a 9-page opinion, Judge Vaidik writes:

Michael Daffron appeals the trial court’s order denying his attorney’s fees. Daffron filed suit against Deputy Richard Snyder and his employer, Sheriff Greg Leatherman, alleging state tort claims and a claim for deprivation of civil rights under 42 U.S.C. § 1983. Pursuant to 42 U.S.C. § 1988, a “prevailing party” in a section 1983 action may be awarded attorney’s fees as part of the costs of the underlying action. Defendants eventually settled with Daffron for “Three Thousand Dollars ($3000.00) with costs accrued” pursuant to a Trial Rule 68 Offer of Judgment, and Daffron filed a request for attorney’s fees as costs with the trial court, which was denied. We hold that because a Trial Rule 68 settlement agreement results in a consent judgment and because a consent judgment is a court-ordered change in the legal relationship between the parties, the party accepting the settlement is a “prevailing party” for purposes of section 1988. Daffron, therefore, is a “prevailing party” here, and he is entitled to attorney’s fees pursuant to the parties’ settlement agreement. We therefore reverse and remand with instructions to award Daffron attorney’s fees.
In Joyce A. Meyer v. Paul W. Wright, et al, a 12-page opinion, Senior Judge Hoffman writes:
Plaintiff-Appellant Joyce A. Meyer (Joyce) appeals the trial court’s judgment in favor of Defendants-Appellees Paul W. Wright (Paul), individually, and Paul W. Wright and S. Anthony Long (Long), as co-personal representatives of the estate of Charles W. Wright (Wright), deceased. We affirm.

Joyce presents one issue for our review, which we restate as: whether the trial court erred by determining that Paul and Long had rebutted the presumption of undue influence in the execution of the transfer of Wright’s Merrill Lynch account and the real estate deed from Wright to Paul. * * *

Based upon the foregoing discussion and authorities, we conclude that a presumption of undue influence arose in this case because Paul was in a fiduciary relationship with Wright at the time of the questioned transactions, and the transactions benefited Paul. We further conclude that the trial court did not commit error by finding that Paul and Long rebutted the presumption of undue influence in this case and by entering judgment in their favor. Affirmed.

In Ralph E. Lean v. Charles Reed, et al, a 2-1 opinion, is a case involving unregstered securities. As Senior Judge Hoffman writes:
The GOLI stock was not registered under the Indiana Securities Act (hereinafter “the Act”), as is required by Ind. Code § 23-2-1-3. Furthermore, GOLI did not at the time of sale disclose to the purchasers that various stock options and GOLI stock had been acquired by GOLI officers, directors, consultants, and key executives. Such disclosure is required by Ind. Code 23-2-1-12(2). * * *

The Hines decision is consonant with the language of our statute. Ind. Code § 23-2-1-19(d) requires Lean to show that in the exercise of reasonable care he could not have known of the lack of registration and the undisclosed information. In other words, as expressed by the Hines court, Lean’s ignorance will be bliss only to the extent that he can prove that even by the exercise of reasonable care he would have remained ignorant of the true state of affairs. By his admission, a single question to other directors would have provided Lean with salient knowledge about the transaction, and we conclude as a matter of law that Lean has failed to meet the burden set forth by statute. While the statute clearly indicates that some directors may not in the exercise of reasonable care be able to ascertain knowledge pertinent to a stock transaction, that is not the case here.

The trial court was correct in granting summary judgment in favor of the purchasers. Accordingly, we affirm.

CRONE, J., concurs.
BAKER, J., dissents with separate opinion. [which begins on p. 8] I respectfully dissent from the majority opinion. I must first depart from my colleagues’ reliance on Everts and Hines, which emanate from two of our sister states. Although those opinions may be well reasoned and thoughtful, I believe that the more appropriate source of wisdom regarding the Indiana Securities Act is caselaw analyzing the statutory scheme on which our State’s Act is based—the Federal Securities Act of 1933. * * *

Moreover, although Lean admits that had he inquired into the registration of GOLI securities under the ISA he would have learned that the process had not been completed, I do not believe that we can determine as a matter of law that, to exercise reasonable care, Lean had a duty to so inquire. Lean was a brand-new outside director of GOLI with no prior involvement in the transaction. Under these circumstances, I believe that there is ample room for a reasonable difference of opinion.

I certainly do not mean to suggest that a director may remain in blissful or willful ignorance and thereby avoid liability under the Indiana Securities Act. I merely conclude, based upon the federal authorities cited above, that whether a defendant has proved the affirmative defense of reasonable care is nearly always a question of fact. Although it is possible that a rare case could include undisputed facts that lead unerringly to only one conclusion regarding the defendant’s exercise of reasonable care, I do not believe that this is that case. Thus, I would reverse the trial court’s order and remand for trial on this issue.

In Four Winds v. Smith & Debonis , an 18-page opinion, Chief Judge Kirsch's opinion begins:
This case involves a dispute for attorney fees brought by the law firm of Smith & DeBonis, LLC (“Smith”) against its former client, Four Winds, LLC (“Four Winds”). In this appeal, Four Winds raises three issues, which we restate as:

I. Whether the trial court erred in entering judgment for Smith because the case in which Smith earned the contingent attorney fees is still pending in federal court.

II. Whether the trial court erred by failing to conduct a separate hearing on whether Smith’s conduct following its termination constituted a breach of fiduciary duty that would have reduced the fees that Four Winds owed to Smith.

III. Whether the trial court erred when it granted Smith a lien on Four Winds’ property as security for Smith’s unpaid fees, although Smith’s work did not create or obtain the liened property.

We affirm.

In Joseph Stellwag v. State of Indiana, a 10-page opinion, Senior Judge Barteau writes:
Defendant alleges that he was denied the right to a fair trial before an impartial judge. He contends that all of the challenged remarks made throughout his trial cumulatively establish that the trial judge was partial, and that Defendant is entitled to a new trial. * * *

In the present case, Defendant did not object to the trial court’s interruptions, nor did he move for a mistrial. In those situations, generally, a contemporaneous objection is required to preserve an issue for appeal. Id. Instead, Defendant contends that the trial court’s comments collectively constitute fundamental error. * * *

In the present case, it is apparent that the cumulative effect of the trial judge’s comments crossed the barrier of impartiality. [examples omitted] * * *

Furthermore, those incidents likely cumulatively prejudiced Defendant’s case. The trial judge could have excused the jury and admonished Defendant to refrain from gesturing and making comments that could be overheard by the jury about the State’s witnesses. Admonishment in front of the jury was not a function necessary to controlling the courtroom. Further, the trial court objected to a line of questioning prior to the State’s objection. The trial court also gratuitously requested in front of the jury that a defense witness refrain from arguing with the State after the witness had responded in a yes or no fashion to the State’s question. Defendant has established that fundamental error occurred due to the improper intervention of the trial court.

Defendant has established that he is entitled to a new trial. * * * Reversed and remanded.

NFP civil opinions today (2):

Tiffany Wilson v. Greene County Division of Child Services (NFP) - involuntary termination of parental rights, affirmed.

In Scott R. Plothow v. Tristi J. Plothow (NFP), a 10-page opinion (including a 1-page concurring opinion), Judge Robb writes:

Scott Plothow appeals the trial court’s modification of his child support payments to Tristi Plothow, his ex-wife and the mother of their two children. Based on an alleged absence of a substantial and continuing change in circumstances, Scott challenges the trial court’s increase of his payments from $250 per week to $375 per week. He also challenges the trial court’s inclusion of his bonus income in its determination, and alleges that it failed to account for the totality of the circumstances between the parties. Concluding that Tristi met her burden of establishing a substantial and continuing change in circumstances, and that Scott failed to meet the burden of proof as to his other claims, we affirm in part and reverse in part.
NFP criminal opinions today (8) (link to cases):

Charles S. Muncy v. State of Indiana (NFP)

Todd Huth v. State of Indiana (NFP)

Eric D. Curtis v. State of Indiana (NFP)

Jimmy S. Troutman v. State of Indiana (NFP)

Y.F. v. State of Indiana (NFP)

David Nail v. State of Indiana (NFP)

Joetta Allen v. State of Indiana (NFP)

Alfred Armour v. State of Indiana (NFP)

Posted by Marcia Oddi on Tuesday, September 19, 2006
Posted to Ind. App.Ct. Decisions

Ind. Decisions - "Court orders new trial for man forced to accept lawyer"

The AP's Charles Wilson has a story about yesterday's Court of Appeals ruling in the case of In Ahmad Edwards v. State of Indiana (see ILB entry here - 2nd case). The story begins:

INDIANAPOLIS - A judge erred when he found a man competent to stand trial but denied him the right to represent himself in court, the Indiana Court of Appeals ruled.

The three-judge panel set aside Ahmad Edwards' convictions on charges of attempted murder and battery and ordered Marion Superior Court to hold a new trial.

Judge John G. Baker noted that the U.S. Supreme Court has ruled that a court cannot constitutionally force a defendant to accept counsel if he knowingly asks to represent himself in a timely manner, unless the court finds he is not competent to stand trial.

"We and the trial court alike are bound by the precedent of the United States Supreme Court," Baker wrote in Monday's 16-page ruling.

"Consequently, we are compelled to conclude that the trial court erred in denying Edwards's request to represent himself in his second trial, inasmuch as it had already found him competent to stand trial."

Posted by Marcia Oddi on Tuesday, September 19, 2006
Posted to Ind. App.Ct. Decisions

Ind. Courts - Teen Court at the Vanderburgh County Courthouse

This spring the ILB quoted from a Lafayette Journal & Courier story on a teen court in Tippecanoe County.

Today Kate Braser of the Evansville Courier& Press writes about a teen court at the Vanderburgh County Courthouse. The story begins:

About one year after local teenagers were first given the opportunity to render judgment on their peers in a real court setting, adult coordinators are judging teen court a success.

The program - first introduced in February 2004 - did not get into full swing until May 2005, according to Ann Burnworth, executive director of Youth Resources. The Evansville Bar Association funds the program, which is coordinated by Youth Resources.

Burnworth said teen court already has a waiting list for cases, and trials are booked through the end of this year.

To participate, teen offenders must admit guilt and agree to a sentence set by their peers. Eligible teens are first-time offenders facing charges that are not felonies. If they comply with a jury's recommended sentence, their records are wiped clean.

"It's a chance for teens to turn over a new leaf," Burnworth said, adding at least 50 teens were tried before a jury of their peers in the program's first year and at least 60 teens have been trained to serve as prosecutors, defense attorneys, bailiffs or jurors.

Posted by Marcia Oddi on Tuesday, September 19, 2006
Posted to Indiana Courts

Ind. Gov't. - Harrison County's proposed countywide conservation easement program

Grace Schneider of the Louisville Courier Journal reports today:

The Harrison County commissioners set aside an hour during their meeting last night to gather views from residents on a proposed countywide conservation easement program -- and they got an earful.

Although at least nine people urged the commissioners to enact the program, several opponents, including farmer Brian Churchill of the Depauw area, raised questions about whether the conservation plan would prevent family farmers from giving a portion of their property to their children.

The "listening session" followed at least two years of study by a task force appointed by the commissioners to explore ways to preserve Harrison's dwindling farmland, forests and open space.

Harrison is one of the fastest-growing counties in Southern Indiana, and estimates are that the county is losing farmland to development each year.

The task force has proposed setting up a program to allow landowners the option of voluntarily placing their land into an easement that would prevent future development and ensure it's used only for agricultural purposes.

Under the proposal, federal money from the Department of Agriculture's Farm and Ranch Lands Protection Program would fund 50 percent of the purchase of a landowner's conservation easement. A Harrison-based entity would come up with the other half.

All easements would be held and enforced by a local land trust.

Most who expressed skepticism said they oppose any effort to spend county tax money to purchase easements. They also questioned who would decide which landowners are allowed to participate and how the program would affect property taxes.

Don Smith of Depauw asked what might happen if automaker Honda chose to move to Harrison County: Could the company still purchase property already set aside in a conservation easement?

Posted by Marcia Oddi on Tuesday, September 19, 2006
Posted to Environment | Indiana Government

Ind. Gov't. - State of Indiana sides with Duke in case against EPA

Platts News Service reported yesterday:

Duke Energy, 10 states and two electric utility groups have filed briefs with the US Supreme Court arguing that the US Environmental Protection Agency wrongfully reinterpreted the Clean Air Act when it sued Duke for upgrading coal-fired units without applying new-source review requirements.

The court is set to hear oral argument in Environmental Defense versus Duke Energy on November 1.

Duke Energy told the justices in its brief filed Friday that the Charlotte, North Carolina-based utility began 29 renovation projects at eight power plants in 1988 with the knowledge of the federal agency and state regulators charged with regulating the plants.

EPA and Environmental Defense's arguments "do not withstand common-sense scrutiny," Duke argued. "Under their view, the electric utility industry has engaged in the decades-long, universal noncompliance--in plain view of and in complicity with state and federal regulators.

"The far more sensible conclusion is that EPA changed its interpretation of the statute and rules in this enforcement initiative--adopting an interpretation it now has disavowed as bad policy."

The case stems from lawsuits filed by EPA in 1999 against several electric utilities for upgrading their aging coal-fired power plants without obtaining permits or installing pollution control equipment as required under NSR. Duke Energy won its case in a federal district court in North Carolina and on appeal by EPA before the US 4th District Court of Appeals in Richmond. Environmental Defense appealed the circuit court decision to the Supreme Court.

The case turned on how plant emissions are measured--on an hourly basis as argued by Duke or an annual basis as favored by EPA--to determine whether the unit had undergone a modification that triggers NSR requirements.

The states filing in support of Duke Energy told the high court that in filing the NSR lawsuits, EPA "flatly contradicts its own earlier interpretations and guidance to states, violates the fundamental principles of federalism" under the Clean Air Act, and "risks needlessly overwhelming the state regulators" who must enforce the law's requirements.

The states filing the brief were Alabama, Alaska, Colorado, Indiana, Kansas, Nebraska, South Carolina, South Dakota, Virginia and Wyoming along with West Virginia's Department of Environmental Protection.

Here is more on the case, Environmental Defense, et al. v. Duke Energy Corp. Here is a link for the briefs.

Recall that the 7th Circuit also ruled on a similar case, via a panel headed by Judge Posner, United States v. Cinergy Corp., No 06-1224 (7th Cir. August 17, 2006), and ruled the other way, affirming a ruling by SD Indiana's Judge Larry J. McKinney.

See this ILB entry from August 18th and this one from August 17th.

Posted by Marcia Oddi on Tuesday, September 19, 2006
Posted to Environment | Indiana Government

Ind. Decisions - General Motors granted summary judgment in PCB suit for damages and medical monitoring costs [Corrected]

Ed Feigenbaum of Indiana Daily Insight has this item today:

In Allgood v. General Motors Corp., a case in U.S. District Court for the Southern District of Indiana, plaintiffs -- owners and residents of 20 parcels of land located near GM’s Bedford casting plant -- "allege that over the course of several decades, the GM Bedford plant released polychlorinated biphenyls (“PCBs”) that have contaminated their land.PCB suit against General Motors Plaintiffs seek damages for harm to their property and for future expenses of medical monitoring.

Plaintiffs contend that regardless of whether the low PCB levels pose a meaningful risk to health or the use of their property, they are entitled to the costs of a clean-up of their property to background levels, so that PCB 126 is present at no more than 4 parts per trillion (4 nanograms/kilogram) in the soil.

Plaintiffs estimate this clean-up would cost $78 million, which is approximately 20 times the total fair market value of all plaintiffs’ properties."

Judge David Hamilton rules that the "plaintiffs are not entitled to these remediation damages, and GM is entitled to summary judgment on those claims for damages."

Oddly, I could not find that ruling - perhaps it will be made available later today. However, I did find this 19-page denial of a motion for medical monitoring costs, dated 9/12/06. [Correction - Mike Limrick writes to note that this ruling is from 9/12/2005! (Although still interesting.) See also update below] This ruling ends with an interesting discussion of what the Indiana Supreme Court might do on the issue of medical moitoring costs. Here are a few quotes. First from p. 6:
Plaintiffs rely on Gray v. Westinghouse Electric Corp., 624 N.E.2d 49 (Ind. App. 1993), another case involving PCB contamination.
Then, starting on p. 15:
In terms of pronouncements from the Indiana courts, Gray provides the clearest available guidance, and it supports plaintiffs. If medical monitoring were not an available remedy under these circumstances, after all, the Gray court could have affirmed the trial court to the extent it had dismissed that request for relief. Judge McKinney’s earlier prediction in Baker did not have the benefit of Gray. General Motors has reported that Gray was discussed in the briefs presented in the 2002 case of Hunt, but Judge McKinney’s short entry did not address the case and therefore offers little additional guidance on this question.

General Motors points out that Gray leaves unanswered questions as to the exact standards a plaintiff would need to meet to win medical monitoring damages as part of a tort recovery. Nevertheless, the decision left the door open to such claims. This court need not try to map or predict the exact boundaries of such claims for relief at this stage of this case. If plaintiffs are able to prove the elements of a recognized tort such as nuisance, then the court will need to craft jury instructions to provide more specific guidance as to available remedies. For now, it is enough to say that the limited evidence from Gray supports a provisional prediction that the Indiana courts are likely to recognize a claim for medical monitoring damages as part of the remedy for a nuisance claim even if there is no evidence of a present physical injury.

Plaintiffs have suggested that the court should consider certifying a question of law to the Indiana Supreme Court concerning the availability of medical monitoring damages. There may come a time in this case when that step should be taken, either by this court or perhaps the Seventh Circuit. If the issue is presented to the state court in that manner, however, it would probably make most sense to do so only when it is crystal clear that the question of law will in fact be decisive, and to give the state court a full factual record. At the present time, for example, it is easy to imagine the prospect of a series of certified questions at preliminary stages of the case. The state court is unlikely to be receptive to such an approach. Instead, the case will develop in this trial court, and questions of law can be decided once the facts have been developed and found. Cf. Konradi v. United States, 919 F.2d 1207, 1213 (7th Cir. 1990) (“The more nebulous or unsettled the legal standard, the more difficult it should be to exclude contested facts from consideration on the ground that they are immaterial.”).

Accordingly, defendant General Motors’ motion to dismiss plaintiffs’ prayers for the costs of medical monitoring and for summary judgment on the same issue is hereby denied.

[Update] Thanks to Mike Limrick of McTurnan & Turner, here is yesterday's 85-page summary judgment order.

Posted by Marcia Oddi on Tuesday, September 19, 2006
Posted to Environment | Ind Fed D.Ct. Decisions

Monday, September 18, 2006

Ind. Decisions - More on: "Court sides with couple in garage feud" with Allen County Plan Commission

"The legal wrangling appears over for Jeff and Tammy Rice. A state appeals court judge will let them keep a 3,600-square-foot pole barn on their Auburn Road property."

That is a quote from a story in the Fort Wayne News-Sentinel on August 16th, cited in this ILB entry of the same date.

According to a story this afternoon by Ryan Lengerich in the same paper, however:

The dispute between a local couple and the Allen County Plan Commission over a pole barn, or detached garage, will continue.

Last week the county appealed to the Indiana Supreme Court asking it to consider the county’s case against Jeff and Tammy Rice, which centers around the 3,600-square-foot garage on their 3.6-acre Auburn Road property.

The Rices received the commission’s permission in late 2003 to build a house, attached garage and a detached garage. They built the detached garage, but in July 2004 the commission revoked its approval because construction on the home had not begun in the 60 days allotted.

The Indiana Court of Appeals on Aug. 15 reversed a circuit court judge’s ruling that would have forced the Rices to tear down the $140,000 structure at 11915 Auburn Road. The decision, in effect, also requires the Allen County Plan Commission to approve the Rices’ plans to build their $225,000 dream home on their property.

Fort Wayne attorney Robert Eherenman, who represents the county plan commission, said the Rices and the county can submit briefs to the court explaining their positions. He expects the Supreme Court to decide whether to hear the case in about two months. A ruling could follow several months later.

If the case is accepted, the court may call the parties in for oral arguments or base a decision entirely on previous court records.

“I’m not surprised,” Jeff Rice said. “You know, they give you approval and they want to take it away, and when they lose they still want to fight it.”

The August 15th Court of Appeals decision in the case, Jeff Rice, et al. v. Allen County Plan Commission, may be accessed here - 3rd case. Today's story also gives a summary of the somewhat confusing background to the dispute.

Posted by Marcia Oddi on Monday, September 18, 2006
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Still more on: OEA judge rules in favor of much-disputed Pines transfer station

Updating entries from last week (9/15/06 and 9/16/06) on the Office of Environmental Adjudication ruling on the effort to halt a transfer station from being located near an entrance to Dunes National Lakeshore, the ILB has now received copies of the Great Lakes Transfer ("Pines") decision issued 9/12/06 and a copy of the last case management order, which I'm told describes the timing of events last week.

Posted by Marcia Oddi on Monday, September 18, 2006
Posted to Ind. Adm. Bd. Decisions

Ind. Decisions - Court of Appeals issues 2 today (and 13 NFP)

For publication opinions today (2):

In Kevin Burgess v. State of Indiana , a 10-page opinion, Judge Sullivan concludes:

In sum, we conclude the trial court did not err in imposing the full thirty-year presumptive sentence to which Burgess agreed in his plea agreement. The court, in declining to reduce or suspend part of such sentence, did not err in considering that Burgess was an addict and was at risk to re-offend and further, that under the circumstances of the crime, specifically that Burgess’s three-year-old son was present, reducing or suspending the presumptive sentence would depreciate the seriousness of the crime. The decision of the trial court is affirmed.
In Ahmad Edwards v. State of Indiana, a 16-page opinion, Judge Baker writes:
We and the trial court alike are bound by the precedent of the United States Supreme Court. Consequently, we are compelled to conclude that the trial court erred in denying Edwards’s request to represent himself in his second trial, inasmuch as it had already found him competent to stand trial. Finding no other error, we affirm in part, reverse in part, and remand with instructions to vacate Edwards’s convictions for attempted murder and battery and to hold a new trial on those charges. * * *

We are entirely sympathetic to the conclusion reached by the trial court and appreciate that it was simply trying to ensure that Edwards received a fair trial. We also acknowledge the authority cited by the State—including more recent separate opinions of a number of Justices on the United States Supreme Court—that criticizes the holdings of Faretta and Godinez. But Faretta and Godinez have never been overruled, and the rules announced therein and further articulated in Sherwood leave little wiggle room. The Supreme Courts of the United States and of Indiana have pronounced that one’s competency to represent oneself at trial is measured by one’s competency to stand trial and that the standard for the former may not be higher than the standard for the latter.

NFP civil opinions today (3):Thomas Plump v. State of Indiana (NFP) - "Plump’s claim of ineffective assistance of trial counsel fails."

Jessica Laue v. Green County Division of Child Services (NFP) - Termination of Mother’s parental rights affirmed.

In Lee Johnston v. Scott Dyer (NFP), a 6-page opinion, Judge Baker writes:

Appellant-defendant Lee Johnston appeals from a judgment entered in favor of appellee-plaintiff Scott Dyer with regard to an action that Dyer brought against him in small claims court for an alleged breach of an agreement for the lease of certain real estate with an option to purchase. Specifically, Johnston contends that the trial court erred in denying him the opportunity to present evidence of property damages on his counterclaim against Dyer. Concluding that the trial court should have permitted Johnston to present evidence of the alleged damages, we reverse and remand for a new trial.
NFP criminal opinions today (10) (link to cases):

Antonio Cheatem v. State of Indiana (NFP)

Anthony Adams v. State of Indiana (NFP)

Anthony Shane Foster v. State of Indiana (NFP)

Quinton Balls v. State of Indiana (NFP)

Krystal D. Bailey v. State of Indiana (NFP)

Roman Jones v. State of Indiana (NFP)

Robert Lee Peacher v. State of Indiana (NFP)

Shawn Arnold v. State of Indiana (NFP)

Kelly A. Watkins Spaulding v. State of Indiana (NFP)

Tony A. Warren v. State of Indiana (NFP)

Posted by Marcia Oddi on Monday, September 18, 2006
Posted to Ind. App.Ct. Decisions

Law - "Law school abuzz over affair "

"Law school abuzz over affair" is the headline to a story this morning in the Chicago Sun-Times. Some quotes:

When students returned to John Marshall Law School this month, everyone was talking about the lawsuit against "The Colonel."

Robert "Gil" Johnston, the venerable former dean of the university, was sued by his ex-mistress, Virginia Smith, whom he started dating while she was a law student in 1983. Among other claims, she said Johnston beat her, promised to marry her, then, after his wife died, married someone else.

Generations of students have noted a resemblance between Johnston, with his cotton candy white hair and goatee, and Kentucky Fried Chicken founder Col. Sanders. * * *

Born and raised on a sugar plantation in Hawaii, Johnston became the face of John Marshall Law School, serving as dean from 1994 to 2003. He started teaching in 1963; returned to run Hawaii Legal Services from 1969 to 1972, went into private practice for a few years, then returned to John Marshall in 1975.

Smith graduated from John Marshall in 1984 and became a lawyer the following year. The most recent Sullivan's Law Directory lists her as an employee of Accenture. She and her attorney could not be reached for comment for this story.

Posted by Marcia Oddi on Monday, September 18, 2006
Posted to General Law Related

Courts - Ohio: Prison store pays court costs

The Cincinnati Enquirer reports today, in a story by Sharon Coolidge:

Felons from Hamilton County will no longer get away without paying their court costs.

Hamilton County Clerk of Courts Greg Hartmann's office will seize the money prisoners use to buy toothpaste, cigarettes or candy. The move eventually could save taxpayers tens of thousands of dollars per year.

Hartmann began taking court costs - which average $525 per defendant - from commissary funds inmates use to buy snacks, hygiene products and luxuries in prison stores.

In the past, no one heading to prison paid those costs. After all, what would the court do that was worse than prison?

That situation contributed to an unpaid debt of $6.6 million over the last five years. The debt has increased more than 223 percent since 2001. * * *

The idea came earlier this year after Hartmann and his staff saw an article about Michigan successfully seizing commissary funds. They started looking into it and in March the Ohio Supreme Court issued a ruling saying commissary garnishments were lawful.

"Costs are taxed against certain litigants for the purpose of lightening the burden on taxpayers financing the court system," wrote Justice Evelyn Lundberg Stratton in State v. Threatt. "Costs are not punishment, but are more akin to a civil judgment for money."

Montgomery County has been garnishing commissary funds since early 2003, taking almost $400,000 in court costs, said Jim Knight, deputy clerk of the Montgomery County Clerk of Courts' legal department. * * *

Collections began July 3. Each month Hartmann's office will take all but $10 from the person's commissary fund until the fees are paid off. Money in the funds can come from family, friends or what prisoners earn in their prison jobs.

The first month, Hartmann collected $4,629.10. A little more than $1,000 was garnishment money. The rest came from relatives who didn't want commissary money touched, Stacey said.

Posted by Marcia Oddi on Monday, September 18, 2006
Posted to Courts in general

Ind. Gov't. - "Clark zoning overhaul slows"

Ben Zion Hershberg of the Louisville Courier Journal reports today:

An ambitious effort to revise Clark County's planning and zoning rules has become so bogged down that some involved question whether it will lead to any useful changes.

Steady progress is important because the revision process, which started in August 2004 when the county won a $300,000 state planning grant, must be completed by July 1, when the grant expires. * * *

An initial study by the engineering firm said it's important to update the regulations because the east end of the county, which will be heavily affected by the construction of a new Ohio River bridge, isn't prepared for such growth.

The study also raised a number of questions about Clark County's current zoning ordinance. They include the way it allows small developments — those with three or fewer lots — to proceed without county oversight, as well as the lack of consistent "impact fees" charged to developers to cover the effect of their subdivisions on sewers, roads and other public infrastructure.

Posted by Marcia Oddi on Monday, September 18, 2006
Posted to Indiana Government

Ind. Courts - Janet Blue, 1933-2006: Commissioner of the Indiana Court of Appeals.

The Indianapolis Star today contains a tribute to Janet Blue, the Commissioner of the Indiana Court of Appeals, who died late last month (see earlier ILB entry here). Some quotes from the story by Rob Schneider:

Janet Blue was a red-haired beauty, a woman with an incredibly sharp legal mind whose mere name could cause attorneys to cringe, fearing they had screwed up once again.

While her name wasn't a household name, Mrs. Blue was a legend, a person held in awe by attorneys across Indiana. Mrs. Blue, who died Aug. 30 at the age of 73, served as the commissioner of the Indiana Court of Appeals.

She was admitted to the Indiana Bar Association in 1957, a time when female attorneys faced difficulties in finding jobs. She practiced law with Sherwood Blue, a former Marion County prosecutor, whom she married in 1961.

She started working for the Court of Appeals in 1967 and was appointed commissioner three years later. At the time of her death, Mrs. Blue was planning to return to work.

Robert Staton, a retired Court of Appeals judge, said Mrs. Blue reminded him of the actress Maureen O'Hara. Mrs. Blue, though, was better looking, he added. (Star photo)

Mrs. Blue brought a meticulous and technical approach to the law, Staton said. The appellate court's rules are very technical, and together they make up a very thick book, he noted. "She was probably the most expert and knowledgeable person on the rules of anybody in the state."

"She was consumed by her work and absolutely loved it," said her administrative assistant, Ursula Wray. "This was her family."

Mrs. Blue was always busy but made a point of finding out what was important in the lives of her colleagues and found time to ask about such things, Wray added.

The law was "her reason to wake up," said Court of Appeals Judge Patricia Riley. Mrs. Blue "was such a lady, a wonderfully proper person."

She was also someone who expected people to do their homework, the judge added. She recalled calling Mrs. Blue for help when she was a practicing attorney.

When Mrs. Blue sensed Riley hadn't studied the rule she was asking about, Mrs. Blue promptly hung up after advising her to read the rule first. Riley followed her advice and found Mrs. Blue to be most gracious when she still needed help.

She didn't suffer idle inquiries lightly, said Robert Hammerle, a veteran Indianapolis criminal defense attorney. He became acquainted with Mrs. Blue while serving as a public defender in the mid-1970s.

"I was petrified of her, and I wasn't the only one, either," Hammerle said. He would cringe upon finding messages to call her, "because I knew I had screwed up again."

Hammerle said he now takes pride in his reputation as an appellate lawyer. But he has never forgotten that it was Mrs. Blue who helped him earn it.
Her husband preceded her in death.

Posted by Marcia Oddi on Monday, September 18, 2006
Posted to Indiana Courts

Law - "New Supreme Court Term Promises Early Drama"

"New Supreme Court Term Promises Early Drama" is the headline to a story today by Macia Coyle of the National Law Journal. Some quotes:

The U.S. Supreme Court's new term, which already offers controversial challenges involving abortion, affirmative action, punitive damages and global warming, promises to add significantly to the emerging portrait of the newly constituted Roberts court. * * *

The justices approach the opening day with a relatively spare argument docket, having agreed to hear arguments in 31 cases, fewer than the number granted review at this time a year ago. But there is none of the uncertainty that surrounded them last fall as they awaited the arrival of a new chief justice and dealt with the impending departure of Justice Sandra Day O'Connor.

But even if the high court only decided the 31 cases currently on the docket, there is plenty of potential drama and legal significance in that group, say scholars and court watchers.

"There are some stand-out cases and each of them will test whether this is a 'restrained' Court," said constitutional law scholar Douglas Kmiec of Pepperdine University School of Law, referring to the abortion, affirmative action and punitive damages challenges.

Each of those "headline" cases, he added, also reflects the influence of Justice Anthony M. Kennedy, who has played a major role or has cast the decisive vote in the precedents or doctrines underlying those challenges.

The balance of the current docket, said Kmiec, is not like those cases but is "wonderfully lawyerly," many dealing with such issues as retroactivity or administrative law.

The piece continues with a detailed review of some of the cases coming up.
In Gonzales v. Carhart, No. 05-380, and Gonzales v. Planned Parenthood, No. 05-1382, the Bush administration seeks to overturn rulings by the 8th and 9th circuits that struck down the federal Partial Birth Abortion Ban Act of 2003. * * *

The replacement of O'Connor with Alito may also be determinative in the Court's two key affirmative action cases: Parents Involved in Community Schools v. Seattle School District #1, No. 05-908, and Meredith v. Jefferson County Board of Education, No. 05-915. * * *

The high court takes up one of the most hotly debated environmental issues of the time-global warming-in a challenge to the Environmental Protection Agency's interpretation of the Clean Air Act. Massachusetts v. EPA, No. 05-1120. The case involves whether greenhouse gas emissions from cars and light trucks should be regulated by the EPA under the Clean Air Act because of their contribution to global warming. * * *

In Cunningham v. California, No. 05-6551, the justices will examine California's three-tiered, determinate sentencing system for compliance with the Sixth Amendment and Apprendi and its progeny. Cunningham is significant for at least two reasons, said sentencing scholar Michael O'Hear of Marquette University Law School. "We're talking here about potentially devastating results for the largest state criminal justice system in the country," he said. "If the state loses, it's going to result in chaos in this enormous system."

A decision, he added, also may result in the Court saying important things about the federal system, in which, because of U.S. v. Booker, 543 U.S. 220 (2005), sentencing guidelines are no longer mandatory. "The state in its brief is trying to analogize its system to the federal system," said O'Hear. "If the Court declares the state system unconstitutional, then there is a question about what has been happening in the federal system since Booker was decided and the Court may feel obliged to talk about that."

Other cases to watch include:

Burton v. Waddington, No. 05-9222: Is the sentencing decision, Blakely v. Washington, 542 U.S. 296 (2004), retroactive?

Lopez v. Gonzales
, No. 05-547; Toldeo-Flores v. U.S., No. 05-7664: Is the commission of a controlled substance offense that is a felony under state law, but a misdemeanor under federal law, is an "aggravated felony" under the Immigration and Nationality Act and thus a deportable offense?

Carey v. Muladin, No. 05-785: Is a defendant's right to a fair trial violated when family of the dead victim wore buttons bearing his picture during trial?

Posted by Marcia Oddi on Monday, September 18, 2006
Posted to General Law Related

Sunday, September 17, 2006

Ind. Decisions - List of transfers pending (aka cases in limbo)

I mentioned in this entry Friday that the ILB was planning to construct a table of cases for which the Supreme Court has granted transfer and which thus are pending disposition. I've now completed the first cut of that effort, it is available here. Comments and corrections are welcome.

Posted by Marcia Oddi on Sunday, September 17, 2006
Posted to Indiana Transfer Lists

Courts - "Defense prepares amid public anger"

The Cincinnati Enquirer has a good story today by Chuck Martin on several of the attorneys defending a couple charged with killing their foster chilld. This is a high-profile case in Cincinnati, a side-bar to the story has links to over a dozen prior stories. Some quotes from today's story:

When their phones rang late that afternoon nearly three weeks ago, attorneys Scott Rubenstein and Adam Bleile had no idea how potentially life-changing the calls would be.

It was Aug. 29, and the call for Rubenstein was from a judge's office, asking him to defend David J. Carroll Jr. For Bleile, the message came from a woman at the Hamilton County Jail, asking him to defend her daughter, Liz Carroll.

The next day, under the glare of TV cameras, Rubenstein and Bleile stood by their husband-and-wife clients in Hamilton County Court as they were arraigned on charges they killed their foster child, 3-year-old Marcus Fiesel. Now, the attorneys have the unenviable task of preparing a defense for the couple.

The court appointed Rubenstein, 33, to represent David J. Carroll Jr. in Hamilton and Clermont counties. Liz Carroll's family hired Bleile, 36, to defend her in Hamilton County.

Two other attorneys are also representing the Carrolls. Stephen Wenke will assist Rubenstein in David Carroll's defense, and on Friday, a judge appointed Donald Weber to represent Liz Carroll in Clermont County.

Wenke failed to return phone calls for this story, and Weber had little to say after his court appointment.

Rubenstein and Bleile have stood by the Carrolls longer than any other attorney. While some speculate this high-profile case might define the careers of the young attorneys, each denies that publicity was a motive in agreeing to defend the clients.

"As difficult as this job is going to be, somebody's got to do it," says Rubenstein, a downtown criminal defense attorney who routinely takes court-appointed cases. "Somebody has to make sure these people's rights are going to be respected."

"Justice demands adequate representation for all," says Louis Bilionis, dean of the University of Cincinnati College of Law. "But for (their) effort, we could not have a system we could believe in."

The evidence against the Carrolls appears overwhelming. Like none other in recent history, the case has caused widespread sympathy for the victim and rage against the suspects.

A side-bar details attorney fees:
In Clermont County, each attorney appointed by the judges to represent Liz or David J. Carroll Jr. will be paid $50 an hour for appearances in the Court of Common Pleas and $40 an hour for work outside the Batavia courtroom. Fees are capped at $5,000 per lawyer, although a judge can allow for more under extraordinary circumstances.

The state of Ohio is expected to reimburse Clermont County for about 28 percent of the legal fees, up to $5,000. The money for Clermont's share comes out of the county general fund.

In Hamilton County, private attorney Scott Rubenstein has taken David Carroll's case on behalf of the Hamilton County Public Defender's Office because Carroll cannot afford representation. That office will pay for any experts Rubenstein needs to defend his client. Rubenstein will receive $45 an hour for all work on the case in and out of court.

Posted by Marcia Oddi on Sunday, September 17, 2006
Posted to Courts in general

Law - "How Blagojevich aides bypassed state rules for favored job applicants"

The ILB has posted a number of entries on the hiring scandals in some of our sister states. Today the focus is again on Illinois. For background, start with this ILB entry from 6/21/06, this one from 6/5/06, and this one (which the ILB loves) from 5/18/06.

Today a front-page Chicago Tribune story reports on an investigation conduced by its reporters Ray Long, John Chase and David Kidwell. The story begins:

Skirting state hiring rules, Gov. Rod Blagojevich's administration gave jobs to at least 360 people whose applications were sent through back channels by the governor's office and other political heavyweights, a Tribune investigation has found.

More than 70 workers with political pedigrees were hired through internships meant for college students--even though all were older than 35 and a few were in their 60s.

In addition, Blagojevich's administration nearly doubled--to more than 740--the number of high-level state jobs he can fill without following hiring rules.

In a broad examination of hiring across state agencies, the Tribune found that these maneuvers and others were used to systematically subvert a process that is supposed to be free from political influence.

That wide-ranging pattern of hiring abuses has also caught the attention of federal investigators involved since 2005 in a probe of the Blagojevich administration, according to sources familiar with the investigation.

Posted by Marcia Oddi on Sunday, September 17, 2006
Posted to General Law Related

Ind. Courts - Judges urge focus on youth

Josehp Dits of the South Bend Tribune reports on a forum Saturday at the Charles Martin Youth Center. Some quotes:

SOUTH BEND -- Unless you like prison, you could kiss away decades of your life if you dabble in even just a little drugs and guns and are convicted in federal court.

For a 24-year-old, said federal Magistrate Judge Christopher A. Neuchterlein, it means, "Goodbye, you're gone."

That's the reality of federal laws that call for "mandatory minimum sentences," said Neuchterlein of the Northern District of Indiana. Good behavior in prison can reduce a federal sentence by no more than 15 percent, he said.

Young people are marching toward this kind of life and don't realize the consequences can be this harsh, agreed Neuchterlein and three other judges in a forum Saturday at the Charles Martin Youth Center. * * *

Magistrate Deborah Domine of Elkhart's juvenile court spoke of a "war for our cultures and values."

"Twenty five percent of adults in prison began their careers committing delinquent acts," she said. "We have a chance to turn around 25 percent of crimes."

But she said the state has been slow to use scientific methods of assessing youths in the system for mental health and substance abuse risks.

She spoke of a lack of mental health and addictions treatment for youths entering the system.

"Money spent on children is not frivolous," she said, comparing the 5 percent of Indiana state resources spent on children versus 40 percent for law enforcement, prosecution and prisons. * * *

Judge David Shaheed of the Marion Superior Court in Indianapolis touted the power of mentoring. He recommended a program found both in Indianapolis and here. It's called Aftercare in Mentoring, and it provides mentors for kids in the system.

Domine mentioned a program in Howard County that tries to identify at-risk kids and work with them before they ever enter the system. Kids may be identified, for example, if police visit a home.

Rob Sambosky, who coordinates a local program called Companions on the Journey that helps inmates to re-enter the free life, asked what can be done to change the mandatory federal sentences, which he called "draconian."

Posted by Marcia Oddi on Sunday, September 17, 2006
Posted to Indiana Courts

Ind. Gov't. - Kosciusko may limit lake access

Becky Manley of the Fort Wayne Journal Gazette reports today:

Kosciusko County commissioners might vote on a proposal Tuesday that would limit lakefront development and access.

Dan Richard, director of the Kosciusko County Area Planning office, said an amendment has been in the making for about a year. Work began on it after a representative from the Tippecanoe Lake Property Owners Association approached the plan commission asking to form a Lake Zoning District, a zone that would circle the lake and restrict development. Eventually, the focus became lake access and development, including a lake-access method commonly called “funneling.”

Lake funneling is the practice of linking non-lakefront lots to the lake through a narrow strip of land and building docks to allow lake access to those property owners. The amendment will apply only to new developments and won’t affect existing easements and accesses, Richard said.

The plan commission formed a Lake Study Committee to tackle the issue, soliciting members from area real estate agents, developers and lake association members, Richard said. “We wanted to be all inclusive,” Richard said. * * *

The committee’s final product was a Lakeshore Development Ordinance that addresses the issues of back lot and lakefront development, Richard said. The ordinance addresses riparian, or control over water access rights, either through easements or the sale of property.

Richard said most people who attended committee meetings supported limiting access to the lakes.

The committee’s work resulted in a proposed amendment that would require a residential unit, or single-family lakefront development, to have at least 50 feet of shoreline. If a development were to accommodate two families – such as a duplex – it would require 75 feet of shoreline. Developments accommodating more than two families, such as apartments and condos, would require 75 feet of shoreline plus an additional 15 feet for each family unit.

The amendment states that its purpose is to limit funneling, establish an acceptable density, balance the relationship between lake access developments and the amount of shoreline owners of non-waterfront lots can use, and protect the lakes.

Posted by Marcia Oddi on Sunday, September 17, 2006
Posted to Indiana Government

Indiana Law - Out-of-state lawyers join Ice Miller

Out-of-state lawyers join Ice Miller, some of them even though it is located in the midwest, indeed, in a town named Indianapolis. But it takes a while to convince them. Golly gee.

That seems to be the point of this very large (7 x 5.5) color photo on the front page of the business section of today's Indianapolis Star. The "masters of the universe" photo pictures new hires Thomas Mulhern (left) and Ashish Khanna, "both recruited from out-of-state, [who] now work in offices overlooking Monument Circle. Mulhern, who moved from Manhattan, was sold on Indianapolis after a few visits; Khanna is from Missouri."

That is from the caption to the photo. The story itself, headlined "An intro to Indy: Local companies trying to lure best and brightest must work to overcome recruits' perception of our city," does not mention the attorneys until the jump-page, where the story, by J.K. Wall, reports:

Thomas Mulhern didn't recognize it until his wife got a summer internship at Lilly. Getting to see the city first-hand allowed the Mulherns to say yes when Lilly offered her a job.

Mulhern, an attorney, left a firm in Manhattan to join Ice Miller.

"Having a chance to come out here three or four times made a huge difference," said Mulhern, 33. Without those personal visits, he said, he would not have come.

To be sure, Indianapolis companies can find plenty of talented professionals from Indiana and the Midwest. Ice Miller just hired 15 attorneys, most of them from the Midwest, and most with opportunities in other cities.

For example, Ashish Khanna, 31, a Missouri native, chose Ice Miller over law firms in Chicago, Cleveland and Washington. He started at Ice Miller this month.

But Indianapolis employers say they need to attract the best minds -- no matter where they come from. And sometimes, the best minds have negative images about the entire Midwest.

Posted by Marcia Oddi on Sunday, September 17, 2006
Posted to Indiana Law

Saturday, September 16, 2006

Ind. Courts - CASA funding an issue in Bloomington

Bethany Nolan of the Bloominton Herald-Tribune reports:

A local volunteer-driven children's advocacy program says it doesn't have nearly enough money to uphold a new state law.

The Indiana Legislature passed a law in 2005 requiring that all abused or neglected children in the court system be provided a court appointed special advocate, or CASA. But one local official is protesting there isn't enough money available to fulfill that requirement.

CASA director Jill Jolliff said her office recently requested more than $53,000 through a grant process from the state. They received $5,000.

"That's a drop in the bucket," Jolliff said. "We haven't had a chance to crunch the numbers yet, but we'll be able to serve just a few more children."

She estimated the funding would help an additional three to six children. And that's not enough, she said. CASA volunteers worked on about 80 cases last year, she said, pointing out those numbers are down from previous years.

If the numbers go back up, the program will be even further behind, she said. "This is one of those unfunded mandates from the state," she said.

In the future, Jolliff said, she thinks funding shouldn't be awarded competitively but should be based on a state formula for fairness. "I don't think they should make it competitive," she said. "It ties up time and resources that could be used for helping children."

State CASA director Leslie Rogers Dunn said she hopes to ask the Legislature for more money in the future. And as difficult as it was to see some programs receive less money than others, she said, she focused on the fact that about $500,000 was given out this year to help Indiana children, she said.

See earlier ILB entries on CASA here and here.

Posted by Marcia Oddi on Saturday, September 16, 2006
Posted to Indiana Courts

Ind. Courts - More on the ILB's award from the Indiana Judges Association

At a luncheon Thursday (9/14/06) in South Bend the Indiana Judges Association awarded the Indiana Law Blog its annual award to a journalist selected for "outstanding efforts to educate the public about the working of the state's judicial system." (More information here.) Although I was unable to drive up to the South Bend luncheon to accept the award in person, I did send along a statement:

I am delighted to accept the 2006 Indiana Judges Association Award for reporting on the judiciary. I am very sorry I could not drive up to accept the award in person.

I want especially to thank Judge David Chidester of Porter Superior Court for nominating the Indiana Law Blog. He seems to have understood early on that a blog is just another medium for conveying a message, not that different from a newspaper or a radio station.

I started the Indiana Law Blog for a number of reasons:

  • One was to keep track of Indiana appellate decisions at both the state and federal level, and to put a spotlight on our courts.
  • Another was to bring together law-related stories from all over the state, and news from outside the state that might have an impact here, creating a kind of shared warehouse of knowledge -- I have seen too much of people in various counties re-solving the same problems.
  • And I wanted to help create an Indiana-wide legal community so no matter whether you are a big city lawyer or in an isolated rural county, whether you are located across the border from Chicago or Louisville, you can still access the internet and read material that might actually be important to you.
  • Also, and this was essential, I wanted to tie things together -- I didn't want to have to scratch my head and think -- I've read something like that before. Hence my hopefully very accessible archives, going back to 2003 and even before.
  • One more goal was to show the public that "law" impacts much of what we do and is not limited to court decisions or statute books.
  • A final goal was to be a spark for new ideas and new ways of doing things. For instance, over two years ago now the Indiana Law Blog received authority to post Supreme Court transfer lists every week. And the Indiana Law Blog has long argued for making not-for-publication opinions more available.
What about the future? I could go on and on, but here is something of particular interest to this audience -- I'd like to post more trial court rulings. I was interested to learn that the State of New York does an official publication of selected trial court opinions each year, based on precedential usefulness and public importance. I'll be writing more about this in the blog. Please keep reading!

Thank you again for your recognition of the efforts of The Indiana Law Blog.

Posted by Marcia Oddi on Saturday, September 16, 2006
Posted to About the Indiana Law Blog | Indiana Courts

Ind. Decisions - More on: OEA judge rules in favor of much-disputed Pines transfer station

Updating yesterday's entry is this report by Jason Miller of the Michigan City News-Dispatch:

An environmental law judge late Tuesday dismissed appeals by LaPorte and Porter counties, as well as the towns of Pines and Beverly Shores, but the decision won't deter opponents in their fight against a controversial proposed waste transfer facility near the city's West Side. * * *

Tuesday's decision by Environmental Law Judge Mary Davidsen came after more than a year of fierce fighting between Blieden and opponents to his facility.

The three petitioners have argued that the Indiana Department of Environmental Management wrongly granted an environmental permit for the station.

The petitioners, however, plan to appeal the judge's decision before a state-level judge, according to both LaPorte County Attorney Shaw Friedman and Porter County Attorney Gwenn Rinkenberger.

“We're not pleased with this particular outcome,” Friedman said. “But we've built a very good record (to take before an appellate judge). The battle now goes on to the next stage.”

In battling the legitimacy of IDEM's permit, lawyers for the petitioners have said Blieden's applications were wrongly filed and incomplete, and have argued that zoning and building permits were not legal.

The largest issue raised, though, included several claims that the mere existence of the facility would harm the environment - specifically groundwater quality and safety.

Davidsen said in her decision that the petitioners failed to prove IDEM did anything wrong.

“... the towns, Porter County and LaPorte County, have not shown that IDEM acted incorrectly in issuing Great Lakes' permit,” she said.

Ted Cudney, leader of the group Residents Against Trash In Our Neighborhoods of LaPorte and Porter Counties, said he felt the claims were not fully appreciated by Davidsen.

“I kind of felt it was a bit of an orchestrated move,” he said. “She acted like she was interested in what we had to say, but then during a recess, she sent word that the case had been dismissed.”

While IDEM's permit was upheld, the road has not cleared for Blieden, who also will have to fight a move by Porter County to refuse him the ability to create a driveway from his property onto County Line Road.

Porter County holds jurisdiction over the road.

Blieden said Porter County is breaking federal interstate commerce laws by denying the driveway permit. Porter County Commissioners President Bob Harper said he felt the lack of a permit was enough to sway Davidsen.

“We felt she should've ruled for us because he didn't have the driveway permit and because he's not going to get it,” Harper said.

Rinkenberger said the county will fight the road access issue “wherever it needs to be fought,” and said Davidsen's “quick” dismissal prevented petitioners from presenting all their issues.

“This is not going to dissuade us,” she said. “The driveway permit will be denied. If he wants access, he'll have to get it by law.”

Posted by Marcia Oddi on Saturday, September 16, 2006
Posted to Ind. Adm. Bd. Decisions

Ind. Decisions - "East Chicago can't can trash firm"

"East Chicago can't can trash firm" is the headline to this story by Joe Carlson today in the Munster (NW Indiana) Times about the Court of Appeals decision yesterday in the case of City of East Chicago, et al v. Lake County Transfer, Inc. and Portone. (See ILB entry here - Friday's opinions have now been summarized.) From the story:

A state appeals court upheld a local judge's decision to prevent East Chicago Mayor George Pabey from firing a trash-handling company hired by the city's former mayor.

Last year, Lake Superior Court Judge Robert Pete granted a temporary restraining order preventing the city from firing Lake County Transfer Inc. from its job running the city's waste transfer station.

The city's Sanitary District owns the transfer station, which is where many waste haulers dump trash locally before it is consolidated into larger loads that are shipped to a permanent landfill in Michigan.

The East Chicago transfer station accepts garbage from numerous communities, including East Chicago, Hammond, Calumet City, Lansing and Hobart.

Lake County Transfer was hired by former Mayor Robert Pastrick's administration to operate the city station. The company's owner, Anthony Portone, also runs a private waste-hauling business at the station called Best Disposal.

Pabey, who defeated Pastrick in a bitterly contested mayoral election in 2004, sought to oust Lake County Transfer and hire city employees to run the station for a profit. City attorneys also argued in court that Portone's use of the station for his private business was essentially a subsidy that allowed him to undercut competitors in the waste-hauling industry.

But Portone sued the city for breach of contract and libel, among other claims. That case is still active, but Judge Pete granted Portone a temporary injunction last year that kept the contract in force until the case is resolved.

On Friday, the Indiana Court of Appeals upheld Pete's restraining order, although the judges disagreed with one part of Pete's decision and noted that several issues remain to be resolved in a full-blown trial.

Posted by Marcia Oddi on Saturday, September 16, 2006
Posted to Ind. App.Ct. Decisions

Friday, September 15, 2006

Ind. Decisions - 7th Circuit issues one today, and it is an Indiana case

In Automation by Design v. Rayasbestos (John Daniel Tinder, Judge), a 24-page, 2-1 opinion, Circuit Judge Rovner writes:

In this copyright infringement dispute, Automation by Design, Inc. (ABD) alleges that Raybestos Products Company, a wholly owned subsidiary of Raytech Corp., (together “Raybestos” or “RPC”) infringed on its copyright and breached their agreement when it hired Production Design Services, Inc. (PDSI) to build a duplicate machine of one that ABD had designed and built for Raybestos several years earlier. Because we find that Raybestos did not violate the terms of the license agreement, we affirm the decision of the district court granting summary judgment and declaratory judgment in favor of the defendants, Raybestos and PDSI. * * *

[Circuit Judge Kanne's dissent begins on p. 21] KANNE, Circuit Judge, dissenting. I am in substantial agreement with the thorough legal analysis of the majority, but the procedural approach required for a grant of summary judgment causes me to conclude that a reversal and remand is the proper course. Briefly, the following is my reasoning.

Posted by Marcia Oddi on Friday, September 15, 2006
Posted to Ind. (7th Cir.) Decisions

Ind. Decisions - Transfer list for week ending September 15, 2006

Here is the Indiana Supreme Court's transfer list for the week ending September 15, 2006.

Over two and a half years of Transfer Lists: For other weekly transfer lists (going back to Feb. 2, 2004), check "Indiana Transfer Lists" under "Categories" below, or in the right column.

NOTE: The ILB, as announced in last week's transfer list entry, is planning to construct a table of cases for which the Supreme Court has granted transfer and thus are pending disposition. (At this point there is no plan to try to go backward and list the cases granted transfer and pending opinion prior to last week; the easiest way to do that would be to use the list compiled by the Clerk's office, but the ILB has been unable to obtain that information.)

[Updated 9/17/06] I have moved and improved this list; it is now available here.

Posted by Marcia Oddi on Friday, September 15, 2006
Posted to Ind. App.Ct. Decisions | Ind. Sup.Ct. Decisions | Indiana Transfer Lists

Courts - More on: Pennsylvania decides midnight payraise suits

Much reaction today to yesterday's 100-page decision by the Supreme Court of Pennsylvania that the General Assembly could repeal its own pay raise, but not the Court's raise included in the same bill.

The ILB covered this decision in detail in an entry yesterday. A story today in the NY Times begins:

The Pennsylvania Supreme Court partly reinstated a controversial raise yesterday that state legislators repealed last year after a popular outcry.

But the ruling said that only judges should receive the raise, not the legislators or other government workers who originally qualified.

The raise, which was passed at 2 in the morning on July 7, 2005, just before the General Assembly adjourned for the summer, was viewed by critics as sneaky and self-serving. It produced a reaction across the state that led to a Supreme Court justice’s being voted out of office in November and the defeat of 17 legislators the following May.

In response to the public outcry, legislators repealed the raise in November.

The Supreme Court ruled that the Pennsylvania Constitution prohibited reducing the salaries of judges unless “all salaried officers of the commonwealth” were also affected. The court said the legislation repealing the raise did not do that because it excluded many state employees.

As a result, the Supreme Court justices will receive the raise, which amounts to more than 10 percent of their current salary, while the rest of the state officials will not.

The court also said the raise for legislators was unconstitutional because legislators are not permitted to receive raises that they draft in the middle of a term before having to face voters again.

“This is a cynical judicial swindle,” said Bruce Ledewitz, a professor of constitutional law at Dusquesne University in Pittsburgh and a frequent critic of the Supreme Court. “It’s blatantly self-serving, and they don’t have the authority to do it.”

When legislators drafted the raise, Professor Ledewitz pointed out, they included a “nonseverability” clause, which meant that the raises for one branch of government could not be revoked without canceling the raises for all three branches. The justices rejected that clause, he said, allowing their own raise to be restored.

Howard Bashman of How Appealing has collected a number of stories today from his state's papers - access his entry here.

An editorial in the Express-Times of Easton, Pennsylvania concludes:

If voters weren't boiling mad before, they should be now. For those who might have forgotten, here's how this case unfolded:

In the early morning hours of July 7, 2005, when most Pennsylvanians were fast asleep, the Legislature approved generous pay hikes for themselves, the governor, Cabinet officials and judges.

When the public woke up, the wave of disgust rose so high that one Supreme Court justice and 17 incumbent legislators were crushed in its wake.

The Legislature quickly got the message, repealing the pay hikes in November.

A flurry of lawsuits followed, including the three decided Thursday.

The Pennsylvania Supreme Court is setting a dangerous course, approving stealth legislation in the gambling case and now. When these judges come up for retention, voters should send the message that Pennsylvanians won't tolerate sneaks in the Legislature or enablers on the bench.

The Pittsburgh Post-Gazette provides some new details:
Judges will get their raises retroactive to November, when the repeal law was passed.

Supreme Court associate justices' salaries will increase to about $171,000, from $155,783, as a result of the ruling. Pay of Common Pleas judges will increase to about $149,000, from $135,293, according to the Administrative Office of Pennsylvania Courts.

The court decision was assailed by members of citizens groups who raised a public outcry against the three-part pay raise law that was enacted without debate just after midnight on July 7, 2005.

Some observers, however, such as University of Pittsburgh law professor John M. Burkoff, called the justices courageous for making an unpopular decision in a politically charged environment.

"We're lucky to have judges to value the law over the polls," Mr. Burkoff said. "These justices aren't fools. They knew this would be a very unpopular decision but they did what the law and the constitution obligates them to do."

Others, though, say the justices acted out of self-interest to preserve their own raises.

"This was a judicial swindle," said Bruce Ledewitz, professor at Duquesne University Law School. "They went out of their way to uphold every other part of the constitutional challenge except the part that would have affected their own pay raises."

Tim Potts, leader of Democracy Rising Pennsylvania, another pay raise critic, was upset that the Supreme Court didn't simply throw out all of Act 44, the July 7 pay raise law.

Mr. Potts contended the entire Act 44 was passed in an unconstitutional fashion -- without public debate and without being considered on three separate occasions before the vote.

He also said it violated the "single subject rule" by pertaining to three subjects -- raises for all three branches -- instead of just one subject, as he said the constitution requires.

"This ruling by the Supreme Court plainly ignores what the constitution says about how a bill should be adopted," he contended.

That's disappointing to Mr. Ledewitz, too.

"This was the opportunity for the court to clean up the way the Legislature passes bills in the middle of the night behind everybody's back in the night," he said. "The shoddy way of passing legislation at the last minute was upheld. [The justices] said that process is OK."

The Legislature approved raises for itself, 1,045 judges and some Rendell cabinet members when it acted in the early morning hours last summer. The bill gave lawmakers raises of 16 percent to 34 percent, and judges raises of 11 percent to 15 percent.

After a four-month public outcry, and the defeat of a Supreme Court justice in a November retention election, the Legislature rescinded the raises for all three branches on Nov. 16.

Some judges from Philadelphia later filed a lawsuit seeking reinstatement of the judicial raises, and the court upheld those raises yesterday.

And here is something I haven't seen elese elsewhere - it seems to mean the judges' raises in the future will be automatic:
Political repercussions from the raises already have been more significant than the precedent set by this judicial ruling, said Mr. Burkoff.

"Even if this court had said everything was fine with the raises, and even the unvouchered expenses, politically it's never going to happen again," he said. "The effect of this decision on the Legislature is next to nothing, but the effect on the judiciary is massive."

That's because the decision allows state judges' pay to be tied to increases in federal judges' salaries.

"That's a terrific result for those of us who think that judges have been underpaid," he said. "Now the chief justice won't have to go hat-in-hand to the Legislature begging for money. Rather, the amount of money they get paid will be established in a different way."

Posted by Marcia Oddi on Friday, September 15, 2006
Posted to Courts in general

Environment - "President of Wabash Environmental Technologies charged with environmental crimes"

Howard Greninger of the Terre Haute Tribune-Star has a long and detailed report today that begins:

TERRE HAUTE — Derrik Hagerman, president and owner of Wabash Environmental Technologies LLC, was indicted Wednesday on 36 felony violations of the federal Clean Water Act for creating false reports of analytical results of wastewater discharged into the Wabash River.

Hagerman faces a maximum of 72 years in prison and up to $900,000 in fines. Each violation carries a penalty of up to two years in prison and a fine up to $250,000, according to a news release from U.S. Attorney Steven DeBrota and Special Assistant U.S. Attorney David Mucha, who are prosecuting the case.

The charges also were filed against the company, which could be fined up to $18 million, as each violation carries a penalty up to $500,000.

Hagerman appeared Wednesday in Indianapolis before U.S. Magistrate V. Sue Shields for arraignment. Hagerman also represented the company. Hagerman and the company entered pleas of not guilty.

He was placed under pretrial supervision and released after the hearing.

A jury trial has been scheduled for Nov. 13 before U.S. District Judge David F. Hamilton.

Posted by Marcia Oddi on Friday, September 15, 2006
Posted to Environment

Ind. Decisions - OEA judge rules in favor of much-disputed Pines transfer station

Vicki Urbanik of the Chesterton Tribune, begins her otherwise excellent story today with a common error, calling an Office of Environmental Adjudication (OEA) environmental law judge an "Indiana Department of Environmental Management law judge."

The ILB has had a number of entries on the proposed Pines tranfer station which would be located near the entrance to the Dunes National Lakeshore. Here is an enry from March 7th on the hearing before the law judge.

Urbanik's story reports:

An Indiana Department of Environmental Management [sic.] law judge has ruled against the opponents of a waste transfer station on the Porter-LaPorte County Line Road, but the fight will go on.

Porter County Attorney Gwenn Rinkenberger said the county commissioners remain firm -- “firmer than ever” -- in their position that they will not issue Great Lakes Transfer LLC the required road cut permit that it needs for access to operate the transfer station.

Though the proposed transfer station is on the LaPorte County side of the county line, the control of the entire road rests with the Porter County Commissioners, who have argued that the heavy waste hauling trucks to and from the transfer station would harm County Line Road and would violate that road’s weight limits.

With Tuesday’s ruling by IDEM [sic.] Chief Environmental Law Judge Mary Davidsen, the opponents will now appeal the decision in a civil court, Rinkenberger said. It has not yet been decided if the case will be heard by a Porter County or a LaPorte County judge, she said.

The parties appealing are the Porter County Commissioners, LaPorte County, and the towns of Beverly Shores and The Pines.

Great Lakes Transfer first applied for a permit to operate the transfer station in August, 2004, and hundreds of residents came out in opposition at an IDEM public hearing in September of last year. Nonetheless, the IDEM issued Great Lakes a solid waste facility permit in November, prompting appeals from the two counties and two towns.

The opponents have cited various objections, including increased traffic hazards, impacts on wetlands, and increased groundwater and surface water contamination. Porter County in particular has argued that the IDEM permit was in error since Great Lakes does not, and will not have, the required driveway permit.

“They granted it (the permit) knowing Porter County is not going to grant road access,” Rinkenberger said.

But on Sept. 6, Davidsen ruled against the petitioners’ request for a stay of the permit, which would have blocked the permit from taking effect until the full appeal is heard. Then on Tuesday, Davidsen issued a final order in favor of IDEM’s motion for summary judgment and Great Lakes’ motion to dismiss.

In her final ruling, Davidsen said that the concerns raised about operational and traffic issues are not within the jurisdiction of the Office of Environmental Adjudication, the office that hears appeals of permits granted by IDEM. Further, she ruled that the petitioners presented no evidence to show that the issuance of the permit will result in pollution or other negative environmental impacts that would trigger “environmental justice” issues.

“Speculation that the transfer station may lead to additional pollution is again an operational issue that is not within the jurisdiction of the OEA,” she wrote.

As for the road cut issue, Davidsen also wrote that if it is true that Great Lakes will not comply with local regulations if it is not granted the road-cut permit, then IDEM will not allow Great Lakes to operate. Elsewhere in her ruling, she stated that Great Lakes is required only to show a plot plan that shows how its facility would have road access.

“The regulation does not require that Great Lakes must demonstrate that it has obtained all certifications and permits to access local roads. However, the lack of a permitted driveway will also prevent IDEM from allowing Great Lakes to operate if in fact that condition is true,” she said.

She further wrote that the IDEM permit does not give Great Lakes permission to ignore local rules or regulations, but that the issue of how the transfer station might harm Porter County roads and how Porter County enforces its weight limits are not within the jurisdiction of the OEA.

Posted by Marcia Oddi on Friday, September 15, 2006
Posted to Environment | Ind. Adm. Bd. Decisions

Ind. Decisions - Court of Appeals issues 3 today (and 5 NFP)

For publication opinions today (3):

In City of East Chicago, et al v. Lake County Transfer, Inc. and Portone, a 20-page, 2-1 (in part) decision, Judge Riley writes:

The Appellants raise one issue on appeal, which we restate as: Whether the trial court abused its discretion in granting LCTI’s request for a preliminary injunction based on its determination that no adequate remedy at law existed as to the City’s early termination of its contract with LCTI. * * *

Nevertheless, this conclusion does not necessarily mean that the trial court erred in granting LCTI’s motion for a preliminary injunction. As the trial court stated, a legal remedy is not adequate merely because it exists. See Crossmann Communities, Inc. v. Dean, 767 N.E.2d 1035, 1041 (Ind. Ct. App. 2002). Thus, we must still address whether the remedy provided under the contract’s liquidated damages provision is adequate, and whether LCTI would suffer irreparable harm pending resolution of the case if the preliminary injunction did not issue. See Aberdeen Apartments, 820 N.E.2d at 163. * * *

Consequently, we cannot hold that the trial court abused its discretion in granting a preliminary injunction under these circumstances. Rather, the evidence is such that we agree that a preliminary injunction is proper, and that the status quo should be maintained until the case is resolved on its merits. See U.S. Land Services, Inc. v. U.S. Surveyor, Inc., 826 N.E.2d 49, 67 (Ind. Ct. App. 2005).

CONCLUSION. Based on the foregoing, we conclude that although the trial court improperly admitted parol evidence to interpret the contract’s liquidated damages provision, it did not err in granting LCTI a preliminary injunction. Affirmed.

DARDEN, J., concurs.
VAIDIK, J., concurs in part, dissents in part with separate opinion. [which begins (on p. 18)] I agree with the majority’s conclusion that the trial court erred in finding that the liquidated damages clause is ambiguous and in subsequently admitting parol evidence. However, I respectfully disagree with the majority’s conclusion that the remedy found in the liquidated damages clause is inadequate. I therefore concur in part and dissent in part.

In Joshua Meadows v.State of Indiana , a 10-page opinion, Judge Riley writes:
Meadows raises one issue on appeal, which we restate as follows: Whether Meadows’ sentence is appropriate in light of the nature of the offense and character of the offender. * * *

As we stated before, when a perpetrator commits the same offense against multiple victims, “enhanced and consecutive sentences seem necessary to vindicate the fact that there were separate harms and separate acts against more than one person.” Serino, 798 N.E.2d at 857.

In light of Meadows’ character, we observe that although Meadows has a criminal history, the trial court appeared to trivialize its content. We refuse to do so. * * * Accordingly, based on the nature of the crime and Meadows’ character, we conclude that the enhanced and consecutive sentence entered by the trial court was not inappropriate.

In In the Matter of Involuntary Termination of Parent/Child Rel. of E.E., D.E., E.E., an 11-page opinion, Judge Vaidik writes:
Eric Secrest appeals the involuntary termination of his parental rights to E.E., D.E., and Er.E. Although the Department of Child Services’ notice to Secrest was ambiguous as to the date and time of the final termination hearing, Secrest did not object to the form of the notice and thus has waived the issue. Waiver notwithstanding, the error is not fundamental. In addition, because Secrest failed to complete the court-ordered services, was represented by counsel at the final hearing, and does not have a constitutional right to be present at the final hearing, the trial court did not violate his procedural due process rights by denying his attorney’s motion to continue the hearing and by conducting the hearing in Secrest’s absence. We therefore affirm the trial court.
NFP civil opinions today (1):

In Robert D. Kreb, Jr. v. Foghorn Flite, LLC, et al. (NFP), an 18-page opinion, Judge Riley writes:

Statement of the Case. Appellant-Plaintiff, Robert D. Kreb, Jr., d/b/a/ Covenant Flight Group (Kreb), appeals the trial court’s denial of his request for a preliminary injunction against Appellees-Defendants, Foghorn Flite, LLC, (Foghorn), Warren K. Huntzinger (Huntzinger), and Scope Leasing (Scope) (collectively, Appellees).

We affirm in part and reverse in part.

Issues. Kreb raises two issues on appeal, which we restate as: (1) Whether the trial court abused its discretion in concluding that Kreb failed to prove he is entitled to a preliminary injunction thereby giving him possession of the aircraft; and (2) Whether the trial court erred in ordering Kreb to return all logbooks, flight logs, and maintenance records. * * *

Conclusion. Based on the foregoing, we find that the trial court properly concluded that Kreb is not entitled to a preliminary injunction. However, we find that the trial court erred by ordering Kreb to turn over his pilot log to Huntzinger.
[This opinion includes several interesting footnotes]

[1] Even though it is not this court’s tradition to regularly comment on the parties’ factual recitation, we cannot help but do so in this case. At times, Appellant’s factual statement makes assertions unsupported by the record and when citations are included, they are complicated to decipher leaving it to this court to hunt through Appendices, Transcripts, and Exhibits in search of the referenced document. However, we do accept Appellant’s apologies for his failure to strictly comply with Indiana Appellate Rule 22(C), as phrased in his Reply Brief. On the other hand, while Appellees Foghorn and Huntzinger initiate their Brief complaining about Appellant’s citations, their own factual recitation is severely lacking in completeness. The facts of this case are complicated and convoluted, warranting more than their cursory one-page Statement of Facts.
[3] * * * We caution counsel that Indiana Appellate Rule 34(F) cannot be used as a vehicle to circumvent our long established rule that documents that were not presented to the trial court and are not properly part of the trial court’s record fall outside our review.
[6] We recognize that Huntzinger and Foghorn raise the following single issue in their brief: Whether they are entitled to attorney fees. However, as a general rule, a party may not present an argument or issue to an appellate court unless the party raised the same argument or issue before the trial court. See, e.g., AutoXchange.com, Inc. v. Dreyer and Reinbold, Inc., 816 N.E.2d 40, 47 (Ind. Ct. App.2004). Consequently, since Huntzinger and Foghorn did not raise this issue to the trial court, it is now waived for our review. Id.

NFP criminal opinions today (4) (link to cases):

Shawn Arnold v. State of Indiana (NFP)

Kelly A. Watkins Spaulding v. State of Indiana (NFP)

Tony A. Warren v. State of Indiana (NFP)

Roger Glenn Gray v. State of Indiana (NFP)

Posted by Marcia Oddi on Friday, September 15, 2006
Posted to Ind. App.Ct. Decisions

Law - Bloomington lawyer intends to challenge new Arizona wine shipping law

Wine shipping and IU-Bloomington law professor James Tanford are in the news again, at least in Arizona. The Arizona Business Gazette reports:

Although state legislators re-wrote the law dealing with interstate wine shipping to comply with federal mandates, the new measure that takes effect later this month is going to be challenged in court almost immediately.

Attorney James Tanford said Arizona's new measure may appear to have addressed problems found by the U.S. Supreme Court, but he said the new law isn't any closer to be constitutional than the one it replaces.

The key provision of the law is that it allows any winery, anywhere, that produces fewer than 20,000 gallons a year to ship directly to customers and retailers in Arizona. It takes effect Sept. 21.

"Within a few days thereafter we will file an amended complaint that addresses the new statute," Tanford said. "That will sort of start things over again."

Tanford is a professor at the University of Indiana College of Law [sic.!] and represents some Arizona wine lovers and an out-of-state winery.

Leesa Berens Morrison, director of the state Department of Liquor Licenses and Control, disagrees. She said the new law eliminates any practices that illegally discriminated against out-of-state wineries, which was the thrust of the Supreme Court ruling.

Here's the history: Arizona law for years has revolved around a three-tiered system: Manufacturers sell only to wholesalers; retailers buy only from wholesalers.

A 1982 law designed to help the state's nascent wine industry created an exception. It allowed Arizona wineries producing fewer than 75,000 gallons a year to sell directly to consumers. The small wineries could ship directly to retailers and consumers, cutting out the wholesalers. The idea was that many wholesalers would not bother with the Arizona wines.

That law had to be changed after last year when the U.S. Supreme Court voided similar laws in other states. The high court justices concluded that special privileges granted by legislators to only that state's wineries violated the Commerce Clause of the U.S. Constitution.

But Tanford said reducing the numbers of gallons from 75,000 to 20,000 doesn't change the impact of the law.

"Not by coincidence, every Arizona winery but one produces fewer than 20,000 gallons," Tanford said. And that last winery, he said, apparently didn't care if it kept the direct shipment privilege.

The net result, he said, is nothing changes for virtually every Arizona winery. But it continues to exclude 90 percent of out-of-state wineries.

"It is overtly discriminatory," Tanford said. He said the fact that the law does not, on its face, give special privileges to in-state wineries does not protect it from challenges.

He will ask U.S. District Court Judge Mary Murguia to look beyond the new statute's wording and examine its practical effects. He thinks she will find it unconstitutional.

Such a ruling would not disappoint at least one legislator.

Sen. Barbara Leff, R-Paradise Valley, said she sees no reason to throw roadblocks in the path of Arizonans who want to order wines that are not generally available directly from local retailers.

She said the only reason the law wound up the way it did is because the distributors did not want to lose business.

Some wholesalers even pushed to scrap the exemption entirely. They said direct shipments to consumers make it easier for underage drinkers to get alcohol. And they questioned whether the state would be cheated out of its taxes on alcoholic beverages.

Tanford said there is no legitimate justification to have disparate treatment between small and large wineries.

"If you're concerned about shipments to minors, what difference does the size of the winery make?"' he asked. "If you're concerned about everybody paying their taxes, what difference does the size of the winery make?"

He said about the only thing a limit does is protect the in-state wholesalers, ensuring they have exclusive rights to distribute the "big wine labels." And that, said Tanford, is economic protectionism.

Posted by Marcia Oddi on Friday, September 15, 2006
Posted to General Law Related

Thursday, September 14, 2006

Courts - Pennsylvania decides midnight payraise suits

From the Dec. 28, 2005 ILB:

Here is the background: The Pennsylvania judicial retention vote in November turned on a "midnight pay raise" passed by the Pennsylvania legislature that included raises for the judges. The result was one Supreme Court justice being turned out of office last month via the 10-year "yes or no" retention ballot. After viewing those election results, the Pennsylvania General Assembly retreated last month and repealed the pay raise. There was speculation that a judge might sue and sure enough, * * * several judges filed suit to restore their pay hikes.
For additional background, see this ILB entry from April 5, 2006 and this one from May 17th.

Now for today's news, via the AP:

HARRISBURG, Pa. (AP) -- The Pennsylvania Supreme Court reinstated pay raises for 1,200 elected judges and district judges Thursday, adding fuel to an controversy that has roiled state politics for more than a year.

The court ordered that judges' pay to return to the level it was in November, before a pay-raise law that had been passed in the middle of the night four months earlier was repealed in the wake of widespread public anger.

Howard Bashman of How Appealing, who practices out of Philadelphia, provides this link to the 100-page main opinion.

As I recall, much of the anger of the voters toward the Court was that the Court had for years refused to intervene in what many considered to be legislative abuses in enacting legislation. In this case the "midnight pay raise" was just that -- to quote today's AP story:

It was 2 a.m., just before the General Assembly adjourned for the summer, when the Legislature voted to grant the hefty pay raises to themselves, the governor, cabinet officials and judges.

That sudden and secretive manner and the size of the raises drew a sharp, sustained public response.

Presumably the judges' pay raise was included in the pay raise legislation to insure that the Pennsylvania Court would not be likely to declare the method of enactment unconstitutional, as its own pay raise would fall along with the others' raises if it overturned the legislation.

Ironically, the voters directed their ire in the Novemeber election following the pay raise to the only state-wide officals on the ticket, supreme court justices up for retention. One failed to be retained, another's vote was close. Shortly thereafter, the Pennsylvania legislature, presumably hoping to stem the voters' continued anger, repealed the pay raise bill. However, the voters' reactionhe continued into this year's primary, long-time legislative leaders were tossed out.

Now today the Pennsylvania Supreme Court has ruled that the repeal cannot affect the pay raise it received. It concludes its long opinion with this:

Finally, we turn to remedy. We note that this Court did not draft or play any role in the enactment of the legislation that became Act 44. That legislation, passed by the General Assembly and duly signed by the Governor, set the compensation judges were to receive, and in July of 2005 the Judiciary began receiving that compensation, only to have the compensation unconstitutionally reduced by Act 72.

The Constitution of Pennsylvania mandates that the Judiciary shall be compensated as provided by law. To effectuate that constitutional command, we order that the Treasurer of the Commonwealth: (1) shall forthwith calculate judicial compensation in accordance with Act 44, as explained in this Opinion; and (2) shall, upon receipt of vouchers prepared by the Administrative Office of Pennsylvania Courts, reimburse members of the Judiciary for the unconstitutional diminution in compensation effected by Act 72. It is so ordered.

Some might characterize the Pennslyvania Court here as clueless
Note: I haven't read the entire opinion yet, but presumably it turns on the provision of the Pennsylvania Constitution that states: "The Justices of Supreme Court and Judges of the Court of Appeals and of the Circuit Courts shall at stated times receive a compensation which shall not be diminished during their continuance in office." See this ILB entry from Nov. 19, 2005, which compares and contrasts the similar Pennsylvania and Indiana constitutional provisions.

More - See pp. 27-44. The Court holds on p. 44:

In sum, we hold that Act 72 is clearly, palpably, and plainly unconstitutional to the extent that it diminished judicial compensation; Act 72 directly diminished judicial
compensation, and it did so in a fashion which does not implicate the narrow exception provided in Article V, Section 16(a). However, under Section 1925 of the Statutory Construction Act, our finding of this unconstitutional effect does not taint the remainder of Act 72. Thus, we find that the remainder of Act 72’s repeal of Act 44 is valid.
In short, the Pennsylvania Court today found that the General Assembly could repeal its own pay raise, but once enacted it could not touch the judicial payraise included in the same piece of legislation.

Posted by Marcia Oddi on Thursday, September 14, 2006
Posted to Courts in general

Courts - High cost of running for justice in Washington State

Following up on an earlier ILB entry today on judicial election disputes in Illinois, here is a long story from the Seattle Times about the costly Supreme Court campaigns in the State of Washington. The story begins:

OLYMPIA — An unprecedented amount of money is flowing into this year's state Supreme Court races, much of it financing attack ads by conservative and liberal factions fighting over the ideological bent of the court.

More than $2.7 million has gone into the races so far, double the spending on Supreme Court campaigns in 2004.

Political action committees have reported spending more than $1.4 million on behalf of court candidates — most of it by groups trying to unseat Chief Justice Gerry Alexander.

In addition, candidates themselves have raised more than $1.3 million, which is close to the candidate-spending record set in the last election, according to the most recent state filings.

"You're going to have more money in your Supreme Court campaigns than I suspect anybody thought was possible," said Jesse Rutledge, a spokesman for Justice at Stake, a Washington, D.C., group pushing to keep politics and special interests out of court races.

"Voters are going to look at what is transpiring and may wonder: Is justice up for sale?" he said.

Posted by Marcia Oddi on Thursday, September 14, 2006
Posted to Courts in general

Court - U.S. Supreme Court to begin making free same-day transcripts available [Updated]

Lyle Denniston of SCOTUSblog reports this afternoon:

The Supreme Court will begin making available, without charge, the transcripts of oral arguments, on the same day that an argument has been held, the Court announced Thursday. This is one of the most important innovations, in terms of public access, by the new Chief Justice, John G. Roberts, Jr. For years, the idea of same-day release of transcripts of every argument has been rejected despite repeated requests from the media and other public entities.

The new service will begin with the first arguments of the new Term. The Term opens on Monday, Oct. 2, but the first arguments are being held on Tuesday, Oct. 3.

Previously, prompt access to argument transcripts could be arranged, for a significant fee, from the reporting service that has long had the contract for supplying the transcripts, Alderson Reporting Service. From time to time, in major cases, the Court also has released the audiotapes of an argument session, and those have been widely broadcast. Entities wishing to have a transcript of those special cases without paying the reporting service made their own transcriptions from the audio recordings.

The free same-day transcripts will now appear on the Court's web site. * * * In recent years, the Court has been displaying the transcripts on its web site, but ordinarily not until about two weeks later.

An AP report adds:
There is no indication that justices are prepared to relent on another matter of media interest. Television cameras still are barred from the court.
[Updated 9/15/06] Tony Mauro of Legal Times reports today on the Supreme Court decision to make transcripts immediately available. Some quotes:
The announcement may seem like a small step that falls well short of opening the Court to television or radio broadcasting. But at an institution that still hands out quill pens to lawyers who argue before it, the change is significant. And access advocates hope it signals a new climate of openness under new Chief Justice John Roberts Jr. * * *

To aid the transcribing process, officials said, high-speed technology will be used, and a court reporter will be stationed in the court chamber for the first time. Previously, transcripts were made off site from audiotapes; the Court has audiotaped oral arguments since the 1950s.

Posted by Marcia Oddi on Thursday, September 14, 2006
Posted to Courts in general

Ind. Decisions - "Candidates spar over overturned conviction"

Jon Murray of the Indianapolis Star reports this afternoon:

In her campaign to unseat Marion County Prosecutor Carl Brizzi, Democratic challenger Melina Kennedy today focused on an overturned conviction earlier this year.

Bilal Abdullah had been sentenced in May 2005 to 20 years in prison for resisting arrest and unlawful possession of a firearm by a serious violent felon. The sentence was enhanced because Abdullah previously was convicted of robbery and burglary.

In May, the Indiana Court of Appeals overturned Abdullah’s sentence and ordered him released because one of the previous conviction documents was not signed by the trial judge. The opinion noted the deputy prosecutor who handled the case could have submitted other documents to prove the previous conviction.

The decision being focused on is Bilal Abdullah v. State of Indiana. Access the ILB summary here (third case). This ILB entry from May 28th quotes from an AP story headlined "Judicial red tape liberating to felon."

Posted by Marcia Oddi on Thursday, September 14, 2006
Posted to Ind. App.Ct. Decisions

Ind. Decisions - 7th Circuit decides two Indiana cases

In Shepard, Gregory v. State Automobile Mutual Ins. (SD Ind., David F. Hamilton, Judge), a 13-page opiion, Circuit Judge Williams writes:

The plaintiffs-appellants sued the defendants, claiming that the defendants breached a confidentiality agreement by relying upon the plaintiffs’ confidential disclosures to acquire Meridian Insurance Group, Inc. Because the plaintiffs cannot establish either causation or damages, we affirm the district court’s grant of summary judgment to the defendants.

In Massey, James v. Merrill Lynch & Co (SD Ind., Richard L. Young, Judge), a 17-page opinion, Circuit Judge Williams writes:

Plaintiffs-appellants James Massey and Dennis Murray, former directors of Conseco, Inc., sued appellee Merrill Lynch, claiming that Merrill Lynch committed fraud and breached its fiduciary duty by providing an intentionally misleading opinion to Conseco’s Board of Directors (the “Board”) pertaining to the financial soundness of Conseco’s proposed acquisition of Green Tree Financial Corporation (“Green Tree”). Because the plaintiffs’ claims are solely derivative claims and can only be brought on behalf of the corporation (Conseco), we affirm the district court’s dismissal of the plaintiffs’ claims. * * *

As a final note, it would be a curious—and unfair—result if, as the plaintiffs argue, corporate insiders were permitted to maintain direct actions that “ordinary shareholders” could not bring. Such a result would provide greater protections to insiders, who presumably have the greatest access to information on the future prospects of a corporation. Those with the most well-informed front-end risk assessments would also receive the greatest financial protections at the back-end of a deal gone wrong. This would invert the basic structure of corporate and securities fraud laws, particularly the prohibitions on insider trading, which generally aim to curtail trading advantages by corporate insiders and protect investors from such abuses. [extensive citations omitted] We are not inclined to create such a generous exception to bedrock corporate law principles, and instead hold that the plaintiffs must take their proper place in the recovery line along with all other investors.

Posted by Marcia Oddi on Thursday, September 14, 2006
Posted to Ind. (7th Cir.) Decisions

Courts - "Illinois judicial candidate continues fight over political taunts"

Adam Jadhav of the St. Louis Post Dispatch reported in a story yesterday:

Even though voters settled the race for a state Supreme Court seat two years ago, the loser kept up his court battle Wednesday alleging that his reputation was trashed in the political fight.

The case was brought by former appellate judge Gordon Maag, who lost that Supreme Court race and also his retention vote in 2004. It is being watched to see whether it will deter other similar slugfests or set the stage for more.

Maag sat before a panel of the 5th District Appellate Court to challenge the dismissal earlier this year of his defamation lawsuit against the Coalition for Jobs, Growth and Prosperity and the state Chamber of Commerce, among others. In the suit, Maag claims election fliers published by the groups hurt his reputation, and nixed his political chances and career. He is asking for $10 million in damages and $100 million in punitive damages.

In the days before the 2004 election, the circulars were sent out containing a litany of accusations and political spin that Maag took the side of drug dealers, murderers and child sex offenders. Both sides have since agreed the allegations were mostly rhetoric and hardly, if at all, factual. * * *

Maag's suit was dismissed in January by a Sangamon County circuit judge who said the claims didn't meet the requirements of defamation.

The fliers were just part of the bloody battle between Democrat Maag and Republican Lloyd Karmeier, a circuit judge from Nashville, Ill. Political operatives and activists on both sides viciously attacked, hurling accusations that each candidate was a friend of villains, stooge of special interests and brooding enemy of business.

When the dust settled in the race, nearly $9 million had been spent, and Karmeier was elected. The contest became largely a referendum on tort reform and Metro East courts.

Maag's attorney, prominent Metro East trial attorney Rex Carr, said he believes if the dismissal is upheld, the precedent will give carte blanche to political spinmasters.

"Judge Maag was completely smeared and these fliers were sent out a week before the election," Carr told the court. "Lies are not protected. Period."

But the groups who put out the fliers say their First Amendment rights trump Maag's reputation. Chicago attorney Dick O'Brien admitted the accusations in the circulars - headlined by the words: "Gordon Maag's Record On Crime: embarrassing - and dangerous" - were less than sound.

But, O'Brien said, if defamation suits like Maag's prevail, political speech - long protected by courts - will be chilled. * * *

The appellate court could take weeks or months to issue an opinion. How the court rules in Maag's case could serve as either a framework or a warning for judicial campaigns. Already, some observers predict the closely watched Southern Illinois appellate court race under way between Democrat Bruce Stewart, a circuit judge from Harrisburg, and Republican Stephen McGlynn, who was appointed to replace Maag, could turn nasty.

Posted by Marcia Oddi on Thursday, September 14, 2006
Posted to Courts in general

Ind. Decisions - Court of Appeals issues 1 today (and 7 NFP)

For publication opinions today (1):

In David Whiteside v. State of Indiana, a 17-page opinion, Judge Crone writes:

Case Summary. David Whiteside appeals his conviction for class C felony auto theft. We affirm.

Issues. Whiteside raises two issues, which we restate as the following three: I. Whether the trial court erred in permitting the State to impeach his witness with evidence of the witness’s prior conviction; II. Whether the trial court abused its discretion in admitting evidence that the arresting officer addressed Whiteside by his first name; and III. Whether the trial court abused its discretion in admitting evidence that Whiteside had been incarcerated.

NFP civil opinions today (3):

In the Matter of the Involuntary Termination of the Parent-Child Relationship of I.S.T.R., a minor child v. Clay County Department of Child Services (NFP) - "Was there sufficient evidence to support the termination of their parental rights? We affirm."

Edward Horton v. McCurdy Mechanical (NFP) - "In essence, Horton argues that the Board’s decision was erroneous because the evidence failed to show that he voluntarily left his employment at McCurdy without good cause. Horton also claims that the Board improperly denied his request for leave to submit additional tape-recorded evidence for its review. Finding no error, we affirm the Board’s judgment."

In the Matter of H.L.N. (NFP) - parenting time, affirmed.

NFP criminal opinions today (4) (link to cases):

Thomas Morgan v. State of Indiana (NFP)

Kurt Vining v. State of Indiana (NFP)

State of Indiana v. Terry P. Hyser (NFP)

Conry Williams v.State of Indiana (NFP)

Posted by Marcia Oddi on Thursday, September 14, 2006
Posted to Ind. App.Ct. Decisions

Ind. Courts - ISBA Judicial Poll

ISBA members: Your "ISBA Judicial Retention Poll & Performance Evaluation" ballot is due back in the ISBA office by Tuesday, Sept. 19th. So don't let it just sit there in your "to do" pile, as yours truly admittedly has been doing. Fill it out today and send it in!

I'm told that the ISBA so far has received back 1,000 ballots. Results will be out the afternoon of Thursday, September 21st.

This weekend the ILB hopes to have the time to set up its information site on the judges and justice seeking retention to the Court of Appeals and the Supreme Court.

Posted by Marcia Oddi on Thursday, September 14, 2006
Posted to Indiana Courts

Ind. Courts - JTAC and BMV team up in Delphi

The Carroll County Comet's report on the Delphi City Council meeting Monday evening includes this:

The Indiana Supreme Court's Judicial Technology and Automation Committee (JTAC) of the Division of State Court Administration, and the Bureau of Motor Vehicles partnered with the Delphi City Court to streamline transmission of driver information. Court staff is now electronically transmitting court information and data to the BMV and state court administration on a secure site.

Delphi's court is complying with state regulations requiring convictions of individuals carrying a Commercial Drivers License be transmitted to the BMV within ten days of the conviction. Because courts and clerks do not always know when a person holds a CDL, the BMV and JTAC have determined this initiative must include all licensed drivers to be successful.

JTAC and the BMV determined Indiana courts must take immediate steps to achieve substantial compliance with the recent changes in the Federal Motor Carrier Safety Administration (FMCSA) notification requirements. Previously city court was transmitting data and information exclusively by US mail and fax to the various reporting agencies.

However, court information and data sent electronically can be processed the same day by the BMV through the Incite secure Web site. Therefore, the BMV, law enforcement agencies, and courts can know the driving status of motor vehicle operators almost immediately.

Driver suspensions and reinstatement of driving licenses can occur in a timelier manner also.

The new system will assist the court in gathering statistical data for filing with the Indiana Supreme Court's Quarterly Case Status Reports and other activity reports.

Posted by Marcia Oddi on Thursday, September 14, 2006
Posted to Indiana Courts | Indiana Government

Ind. Courts - "Indiana's Supreme Court Is Honored"

South Bend's Fox 28 reports:

They wanted to diversify the jury pool and Indiana went above and beyond expectations.

Indiana's Supreme Court was honored in South Bend Wednesday for creating one of the most diverse and inclusive jury pools in the nation. They received the honor from the American Judicature Society.

Before this project, Indiana counties used jury pool lists that included only sixty to eighty percent of eligible jurors. Today's lists are very accurate, 99% accurate.

David Remondini, Council to Chief Justice Randall Shepard says it's nice to get national recognition, but the great honor in getting the award is doing something good for the people of Indiana. He says they were able to make the jury pools more diverse, more representative and that they're able to deliver better justice. Remondini also says they are saving the counties money because they're not getting jury summonses returned because of bad addresses.

He says the project was good government at it's best. He says it was a major cooperative effort between the Executive branch, the Department of Revenue, and the Bureau of Motor Vehicles.

Posted by Marcia Oddi on Thursday, September 14, 2006
Posted to Indiana Courts

Wednesday, September 13, 2006

Courts - "Judicial Surveys Vex the Bench"

Marcia Coyle of the National Law Journal has an important article last Friday on judicial questionaires. Here are some quotes, but you most likely will want to read the entire article - the emphasis that follows is mine:

When Tennessee Court of Criminal Appeals Judge John Everett Williams, who was up for retention election this year, got his questionnaire from the Tennessee Family Action Council soliciting his views on abortion, the death penalty, same-sex marriage, evolution and other issues, he declined to respond, citing Chief Justice John G. Roberts Jr. as setting “the gold standard” on ethical conduct during his U.S. Supreme Court confirmation hearings.

“As did Justice Roberts, I do not wish to hint or signal that I am predisposed to rule on any matter that may come before me as a judge,” wrote Williams in June, one of 64 Tennessee judges receiving the questionnaire.

Questionnaires for judicial candidates have been an “issue” since at least 2000, according to court and election officials, because they raise concerns about sitting judges and judicial candidates campaigning and making promises just as other political candidates do.

But this year, the questionnaires are proliferating, more sophisticated and seemingly coordinated across states. * * *

Concerns about the questionnaires have reached the National Center for State Courts whose National Ad Hoc Advisory Committee on Judicial Campaign Oversight is preparing to send a letter to state courts, state bar associations and others with recommendations on how to deal with them.

Noting there is “no simple right answer” on how to respond, the advisory committee makes five recommendations:

  • Don’t be rushed into deciding how to handle the questionnaire: The committee says questionnaires often come just a few days before the “due” date for response.

  • Never use the preprinted answers on the questionnaire: Simplifying a legal or political issue to a yes/no answer is “inconsistent” with a judge’s role, and there’s no legal obligation to discuss any issue, according to the committee.

  • Consider responding with a letter that educates voters on the role of judges.

  • Distinguish general interest, nonadvocacy groups from special interest advocacy groups and be consistent in dealing with their questionnaires.

  • And never use a judicial canon of ethics to justify a decision not to respond.

That last recommendation is necessary because the result of citing a judicial canon as the reason for no response is a lawsuit, said committee member Roy Schotland of Georgetown University Law Center.

Schotland noted that questionnaires sent to judicial candidates in Tennessee, Kansas and Georgia contain almost identical footnotes to the “decline to respond” option.

The footnote states that that particular response indicates that the candidate would answer the question but for canons of conduct prohibiting pledges and promises, or statements that commit the candidate to positions on issues that may come before the court.

If a judicial candidate does cite those canons, it’s a “pretty fair bet” the state and/or its judicial ethics commission will be sued, agreed Gray. Within weeks of issuing an advisory opinion counseling against answering questionnaires, Gray said, Kansas was sued. And there have been similar suits against Indiana, Alaska, Kentucky, Pennsylvania, Florida and North Dakota, she said.

The lawyer behind most of those suits is James Bopp Jr. of Bopp, Coleson & Bostrom of Terre Haute, Ind., general counsel to the National Right to Life Committee and the victorious attorney in Republican Party of Minnesota v. White, 536 U.S. 762 (2002). * * *

On the opposite side of Bopp in the Kansas and Indiana lawsuits is George T. Patton Jr. of the Washington office of Indianapolis’ Bose, McKinney & Evans.

The Kansas case is now pending appeal of the injunction in the 10th U.S. Circuit Court of Appeals. Kansas Judicial Watch v. Stout, No. 06-3290.

In Pennsylvania, a federal district judge dismissed the challenge to the pledge and promise and commit clauses after finding that the plaintiffs had no standing. That case is pending appeal in the 3rd Circuit. Pennsylvania Family Institute v. Black, No. 05-5259.

And a suit in which Bopp successfully challenged those clauses in the Alaskan code of judicial conduct is pending appeal in the 9th Circuit. Alaska Right to Life PAC v. Feldman, Nos. 05-35902, 05-36027.

Patton noted that challenges to those clauses succeeded in Kentucky, which settled the lawsuit after the 6th Circuit denied its appeal of the injunction in that case, and in North Dakota, which decided not to appeal.

In the Indiana case, Patton said, he is awaiting a ruling on his motion to dismiss for lack of standing. The plaintiffs are Indiana Right to Life and an individual who is not a judge or judicial candidate.

Patton said that he spoke to all of the judges who received a questionnaire and they said that despite their First Amendment right to speak on those issues, they chose not to answer. Indiana Right to Life then asked to depose the judges. The trial judge denied his motion for a protective order.

“This is what judges need to know — the goal is to get them under oath and to ask: Did you contact the ethics commission and did the commission tell you not to answer? If there were no canons, would you answer?” said Patton. “They are trying to take a right and make an obligation out of it.”

In 2002, the Supreme Court in its White decision could not have envisioned fallout from its ruling such as judges being deposed, detailed questionnaires being sent by special interest groups and the breadth of the pending legal challenges, said Patton.

“In the White opinion, Justice [Antonin] Scalia makes very clear the distinction between the announce clause and the pledge and promise and commit clauses,” he said. “It shows that once you get a foot in the door, you try to crack the door more widely open.”

And Bopp apparently has a large foot. Next on his list, he said, are First Amendment challenges to state rules prohibiting judicial candidates in nonpartisan competitive and retention elections from identifying their political party preference.

“It’s a real good shorthand for giving your general philosophy,” said Bopp, who recently filed such a lawsuit in Kentucky. “I think stating your party preference is indistinguishable from announcing your views.”

The ILB has had a great number of entries on this issue - here is a list. In addition, see this entry from August 23rd titled "Chief Justices Sound Alarm on Judicial Elections."

Posted by Marcia Oddi on Wednesday, September 13, 2006
Posted to Courts in general

Ind. Decisions - "Indiana Appeals Court’s Latest Co-Participant Tort Liability Opinion"

The Sports Law Blog, which is the product of several law professors, had an entry Sept. 4th about Judge Barnes' August 31st opinion in Kelsey Bowman b/n/f John & Karrie Bowman v. Alycea McNary, Tippecanoe School Corp., et al. (Access the ILB entry here - 3rd case.) Here is the Sports Law Blog's commentary:

Indiana’s Courts of Appeals have offered some of the most analytical “sports tort” cases in recent years, such as Mark v. Moser, which attempted to “clearly define the standard of care one competitor owes another in a sporting event” and has found its way into one of the leading sports law casebooks [see p. 877], as well as more recent cases limiting the Mark rule, such as the one I discussed in this post. [Where he discussed Davis v. Lecuyer, the "jet ski" case - see this ILB entry from June 26 - 6th case; a transfer petition is pending].

On Thursday, the court published Bowman ex rel. Bowman v. McNary, 2006 WL 2506680 (Ind. Ct. App. Aug. 31 2006). One member of a high school girls’ golf team sued a teammate after the teammate unintentionally struck her in the head with a golf club during a driving-range practice (leading to blindness). In a footnote, the court notes “an increase in golf-related head injuries in recent years, particularly in children under age nineteen, as participation in the sport has increased, with those injuries being caused by mis-swung clubs, errant balls, and golf cart accidents.”

The Bowman court reaffirmed its commitment to the principle articulated in Mark v. Moser, namely that “as a matter of law, participants in sporting events will not be permitted to recover against their co-participants for injuries sustained as the result of the inherent or foreseeable dangers of the sport.” However, the court acknowledges that its “rationale for the rule originally stated in Mark has not been constant.” Sometimes the court has focused on the doctrine of “assumption of risk”, sometimes on the “absences of a legal duty”, and other on its concern to avoid chilling vigorous participation in recreational and competitive athletics.

The opinion offers a nice tour of Indiana law on this issue.

Posted by Marcia Oddi on Wednesday, September 13, 2006
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Court of Appeals issues 1 today (and 7 NFP)

For publication opinions today (1):

In Marlys Battema v. Sally A. Booth, et al, a 12-page opinion, Judge Crone concludes:

In our view, Battema has presented enough evidence to at least raise a question of fact as to whether the doctrine of fraudulent concealment applies in this case, and, if so, whether the concealment was active or constructive, when the statute began to run under that doctrine, and whether Battema filed her proposed complaint within a reasonable time period after her discovery of Dr. Sally’s alleged malpractice. In sum, the trial court erred in finding no genuine issues of material fact with regard to Battema’s medical malpractice claim. We therefore reverse and remand for further proceedings consistent with this opinion.
NFP civil opinions today (3):

Priscilla A. Waldrip v. Review Board of the Indiana Department of Workforce Development and Employment Plus, Inc. (NFP) - "Did the Review Board err in determining that Waldrip’s employer terminated her for just cause? We affirm."

In Madeline Wilson v. Spurr Enterprises (NFP), a 12-page opinion with a dissent beginning on p. 9 [and remember, this is NFP], Chief Judge Kirsch concludes:

Therefore, there are questions of material fact which render the trial court’s summary judgment on the Plaintiff’s complaint and the Defendants’ counterclaim and third-party claim erroneous. Accordingly, we reverse the summary judgment entries. We also vacate the award of attorney fees pursuant to IC 34-52-1-1, and we remand with instructions to the trial court to grant the Wilsons’ request for jury trial on the complaint and counterclaim. Reversed and remanded.

CRONE, J., concurs.
BAILEY, J., dissents with separate opinion. [that begins]

I respectfully dissent from the reversal of summary judgment upon Wilson’s counter-claim for abuse of process. A trial court’s order on summary judgment is cloaked with a presumption of validity; the party appealing from a grant of summary judgment must bear the burden of persuading this Court that the decision was erroneous. Indianapolis Downs, LLC v. Herr, 834 N.E.2d 699, 703 (Ind. Ct. App. 2005), trans. denied.

Lexus Real Estate Group v. Bullitt County Bank (NFP) - "Once BCB notified Jacobson of the lawsuit, she had five months to enter an appearance, file an answer, and check the trial court’s docket on Appellants’ behalf. Jacobson did none of those things. Consequently, we cannot say that the trial court abused its discretion in reinstating the default judgment and judgment and decree of foreclosure against Appellants. We therefore affirm."

NFP criminal opinions today (4) (link to cases):

Kevin Carey v. State of Indiana (NFP)

Kevin Matthew Boyd, Sr. v. State of Indiana (NFP)

Talia Eichelberg v. State of Indiana (NFP)

Lewis Rhynearson v. State of Indiana (NFP)

Posted by Marcia Oddi on Wednesday, September 13, 2006
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Supreme Court posts another opinion dated 9/12/06 [Updated]

In Otis Freshwater v. State of Indiana, a 6-page, 5-0 opinion, Justice Sullivan writes:

Defendant Otis Freshwater was convicted of burglary. He appeals, contending that the State did not prove one of the essential elements of the crime of burglary: that, when he broke into and entered a building, he did so with the intent to commit theft. Long-standing precedent of this Court dictates that “some fact in evidence must point to an intent to commit a specific felony.” We agree with Freshwater that there was no such evidence here and reverse the judgment of the trial court. * * *

There is language in several opinions of the Court of Appeals to the effect that a lesser quantum of evidence than that demanded by Justice and Gebhart will satisfy the intent to commit a felony element in a burglary case. * * * [T]his is not a correct statement of the law. Justice and Gebhart dictate that in order to sustain a burglary charge, the State must prove a specific fact that provides a solid basis to support a reasonable inference that the defendant had the specific intent to commit a felony. No such fact was proven here. The time at and method by which Freshwater entered the car wash suggest nothing more than that he broke in. He could have done so for any number of reasons that do not include theft. The State has failed to provide evidence that his reason was to commit theft. * * *

We reverse the judgment of the trial court.

[Update] Michael Ausbrook of INCourts has an analysis of this ruling, its history and implications here.

Posted by Marcia Oddi on Wednesday, September 13, 2006
Posted to Ind. Sup.Ct. Decisions

Ind. Decisions - 7th Circuit decides one Indiana case today

In Sublett, LaTeirra R. v. John Wiley (SD Ind., Sarah Evans Barker, Judge), a 17-page opinion, Circuit Judge Wood writes:

LaTeirra R. Sublett, an African- American woman, sued John Wiley & Sons, Inc., and Wiley Publishing, Inc. (to whom we refer collectively as “Wiley”), alleging that they failed to promote her, gave her unwarranted poor performance reviews, and retaliated against her for filing a complaint about race discrimination in violation of both Title VII of the Civil Rights Act, 42 U.S.C. § 2000e et seq., and 42 U.S.C. § 1981. The district court granted summary judgment in favor of Wiley. Although some of Sublett’s allegations, if true, reflect unfortunate behavior, we conclude that she failed to establish a prima facie case or pretext with respect to any of her claims. We therefore affirm the district court’s judgment. * * *

We conclude that Sublett’s evidence, construed most favorably to her, shows at most that certain individuals at Wiley made some unfortunate remarks and some contestible promotion decisions. This is not enough to permit a trier of fact to consider her discrimination or retaliation claims. We therefore AFFIRM the judgment of the district court.

Posted by Marcia Oddi on Wednesday, September 13, 2006
Posted to Ind. (7th Cir.) Decisions

Ind. Decisions - Court of Appeals today posts decisions from Tuesday

For publication opinions posted today from Tuesday:


NFP civil opinions posted today from Tuesday (2):

Robert T. Ellis, Jr. v. Jennie L. Ellis (NFP) - custody, affirmed.

Cynthia K. Cobb v. Brent R. McIntosh, M.D. (NFP) - "We therefore conclude that Cobb had a reasonable amount of time after she discovered the alleged malpractice in which to file her claim against Dr. McIntosh, and enforcement of the two-year occurrence-based statute of limitations did not unreasonably shorten the window of time available such that it was impractical for her to file her claim. The trial court did not err in granting summary judgment in favor of Dr. McIntosh. Affirmed.

NFP criminal opinions posted today from Tuesday (12), (link to cases):

Randi Hope Araujo v. State of Indiana (NFP)

R.B. v. State of Indiana (NFP)

Robert Daily, III v. State of Indiana (NFP)

Larry Conn v. State of Indiana (NFP)

William T. Dane v. State of Indiana (NFP)

Gary L. Green v. State of Indiana (NFP)

Jerome Miller v. State of Indiana (NFP)

State of Indiana v. Michael W. Smart (NFP)

Lashawna Witherspoon v.State of Indiana (NFP)

Linda E. Shimer v. State of Indiana (NFP)

Michael McDowell v. State of Indiana (NFP)

M.B. v.State of Indiana (NFP)

Posted by Marcia Oddi on Wednesday, September 13, 2006
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Supreme Court posts two juvenile sentencing opinions - dated 9/12/06

In J.D. v. State of Indiana, an 8-page, 5-0 opinion, Justice Sullivan writes:

In this delinquency case, J.D. was sentenced to a fixed term of one year. He seeks credit against that one-year term for the 35 days he was confined prior to sentencing. We hold that requiring credit for the time a juvenile has spent in pre-disposition confinement would impermissibly impinge upon the juvenile court’s broad authority to fashion dispositional alternatives. * * *

We believe that the inherent differences between the juvenile delinquency and adult criminal justice systems dictate that a juvenile offender is not entitled to credit for time served in detention prior to sentencing. A key feature of the Juvenile Code is the broad range of alterna-tives a juvenile court judge has available once a child has been found by the court to be “a delin-quent child,” i.e., to have committed an act that would be a crime if committed by an adult. In the vocabulary of the Juvenile Code, these alternatives are called “dispositions” and the judge enters a “dispositional decree” (rather than a sentencing order). In its dispositional decree, de-pending upon the circumstances of the particular case, the court can, e.g., order supervision of the child by the probation department, order “wardship” of the child to the Department of Cor-rection (“DOC”), or order confinement in a juvenile detention center, as well as order various other sanctions and treatment. See Ind. Code §§ 31-37-19-5, 31-37-19-6, 31-37-19-8, 31-37-19-9 & 31-37-19-10 (2004). * * *

The broad authority of the juvenile court to fashion dispositional alternatives for juvenile offenders discussed in cases like N.D.F. and Tina T. leads us to conclude that the law does not require that a juvenile offender be provided credit for time served in pre-disposition detention. Expressed in the positive, the juvenile court’s broad authority to fashion dispositional alterna-tives extends to discretion over how much, if any, of the time the juvenile offender has spent in pre-disposition confinement is entitled to credit. Expressed in the negative, requiring credit for the time a juvenile has spent in pre-disposition confinement would impermissibly impinge upon the juvenile court’s broad authority to fashion dispositional alternatives. * * *

We affirm the judgment of the trial court.

In A.E. v. State of Indiana, a 4-page, 5-0 opinion, Justice Sullivan writes:
In this delinquency case, A.E. was sentenced to a fixed term of 18 months. Reversing the trial court, the Court of Appeals held that he was entitled to credit against that 18-month term for the 99 days he was confined between the dates of his arrest and his dispositional hearing. In ac-cordance with another case we decide today, J.D. v. State, we hold that the trial court was not required to credit the time served in pre-disposition confinement against his determinate sentence.

Posted by Marcia Oddi on Wednesday, September 13, 2006
Posted to Ind. Sup.Ct. Decisions

Law - Blog are emerging as a powerful tool for lawyers, judges and law professors

Prof. Douglas A. Berman of the respected and frequently cited Sentencing Law & Policy Blog, has an article about legal blogs in today's The National Law Journal, titled "Blogs are liberating the profession from dull writing: They're emerging as a powerful tool for lawyers and law professors." Berman makes some great points:

Beyond all the media buzz and mystification, the simple reality is that blogs-like newspapers and magazines and journal and books-are simply a medium of communication. Like other media of communication, blogs are used by a variety of people for a variety of purposes. But in our modern, so-called information age-when legal developments take place in hyperspeed and everyone struggles with information overload-blogs are emerging as an especially important and valuable medium for the work of lawyers and law professors. * * *

Through links, blogs can facilitate a more direct and immediate engagement with original legal materials-whether cases, statutes, briefs, reports or articles-for the blogger and the blog-reader. Through linking, blogs also can foster a more direct and immediate engagement with other lawyers and law professors working on related issues.

Valuably, blogs enable lawyers and law professors to reach an extensive and extraordinarily diverse audience, and to interact with many new people as "cyber-peers." Blogs facilitate exposure to, and scrutiny by, a national and international readership. A blog's audience can include not only judges and practitioners at all levels and in many jurisdictions, but also policymakers, academics from many disciplines and journalists of all stripes.

In addition, blogs are accessible to non-lawyers interested in legal issues and, perhaps most valuably, the real people whose lives are affected by the legal policies and doctrines that a blog may discuss. Through comments, links and other means, blogs foster continuous interactions with sophisticated (and unsophisticated) readers that can provide for a distinct and valuable form of peer review.

Law blogs also can develop into an extraordinary and unique research tool for lawyers and law professors. Blogging lawyers and law professors quickly learn via comments, links and e-mails about legal developments they may never have discovered through traditional research, and they are exposed via their audience to legal and nonlegal ideas and observations that they may never have imagined.

Of course, there are potential vices to law blogging. The medium is so engaging and constant that blogging (or even blog reading) can easily turn into an addiction that interferes with other professional commitments. * * * And although a good blog can help a reader cope with information overload, a good blogger often finds himself or herself drowning in information.

(Thanks to How Appealing for the link.)

Posted by Marcia Oddi on Wednesday, September 13, 2006
Posted to General Law Related

Ind. Decisions - Still more on school expulsion decision and its implications

The Richmond Palladium-Item reports, in a story by Pam Tharp:

LIBERTY, Ind. -- Appeals of student expulsion decisions won't be heard by the Union County-College Corner Joint School Board, the board agreed on Monday.

An Indiana Court of Appeals' decision this summer said school boards can't choose to hear some expulsion appeals and not others, superintendent Mark Ransford said. Boards either must hear all appeals or none, he said. If the district had no policy, it was required to hear all appeals, board member Michael Sims said.

Union County's board hasn't heard any expulsion appeals during his nine-year tenure, Ransford said.

"It's never been asked to hear any either," he said.

The district has a procedure for expulsion, Ransford said. A principal requests expulsion for a student and the superintendent appoints a hearing officer, usually the assistant superintendent, Ransford said. After reviewing the facts and hearing from the parties, the hearing officer makes a recommendation to the superintendent, who makes the final decision.

Board member Darrell Harvey said student handbooks explain actions that result in expulsion and the board approves the handbook.

"It's not like we have no input because we do approve the handbook," Harvey said.

For background on the Court of Appeals decision in Logansport School Corporation v. P.F., start with this ILB entry from September 7th.

Posted by Marcia Oddi on Wednesday, September 13, 2006
Posted to Ind. App.Ct. Decisions

Ind. Law - More on: Indiana doesn't keep annual divorce numbers

Referencing Monday's story by Niki Kelly in the Fort Wayne Journal Gazette (here), an editorial in the Anderson Herald-Bulletin Tuesday opined:

Indiana is one of only five states that doesn’t track divorce rates and lawmakers are bewildered by that. Still, not knowing the divorce rate hasn’t kept lawmakers and lobbyists from pushing for covenant marriage laws, which are more legally binding, offers counseling before a marriage or divorce and adds to the waiting period a couple must go through before a divorce is final.

But none of this stops divorce. Lawmakers seem to be hoping that if they put up enough road blocks marriages will last forever. Tim States, court administrator for the Madison County Unified Courts, said divorce records aren’t kept for the county and those seeking a divorce are granted it.

He did say that the county has a dissolution education program, which requires divorcing couples with children to go through a class while the children attend a separate class. There is also a 60-day waiting period in Indiana.

Lawmakers are saying that Indiana’s no-fault divorce law leads to more divorces. One lawmaker said he heard that Indiana has the second or third highest rate in the nation, but without figures this seems to be crying wolf.

Posted by Marcia Oddi on Wednesday, September 13, 2006
Posted to Indiana Law

Ind. Decisions - "Evansville public school families who paid a $20 student activity fee now may get it back"

John Martin of the Evansville Courier& Press reports today:

A judge ruled Monday that Evansville public school families who paid a $20 student activity fee now may get it back.

The Evansville-Vanderburgh School Corp. charged the fee to all its students in the 2002-03 academic year. In 2003-04, it was charged to students not eligible for free and reduced-price lunches.

The fee was levied during a budget crisis when EVSC faced the prospect of cutting programs and employees. It raised about $600,000 over the two years. The fee has not been charged since.

EVSC parents Frank Nagy and Sonja Brackett sued, arguing that the fee was unconstitutional "tuition" for public school. They prevailed. Superior Court Judge J. Douglas Knight's original ruling that the fee could be charged was reversed this year by the Indiana Supreme Court.

The question then became whether EVSC had to refund the money.

Knight's ruling issued Monday states that EVSC "shall promptly notify all persons who pay the activity fee (a) that they are entitled to a refund of the fee and (b) how to collect that refund."

Each family that paid the fee "shall be allowed a reasonable amount of time within which to apply for the refund," Knight wrote, adding that the refund shall be payable regardless of whether a particular student participated in activities funded by the fee.

For example, a parent of two children who attended EVSC in both years the fee was charged could apply to receive $80.

Nagy and Brackett are members of the Vanderburgh County Taxpayers Association. David Coker, the president of that group, said in an e-mail that "everybody is simply ecstatic" over the ruling.

Patrick Shoulders, EVSC's attorney, said the corporation "will not appeal."

"We're going to abide by it in good faith. Those parents who want their $20 back who paid it, we're going to get them a check."

Plaintiffs in the case didn't receive every concession they sought from Knight.

Indiana Civil Liberties Union Attorney Jacquelyn Bowie Suess, who represented Nagy and Brackett, had argued that all parents who paid the fee should be refunded in full.

Because Knight instead ordered that an application process be established, the financial impact on EVSC will not be as significant, Shoulders said.

"That's far different from what the Civil Liberties Union wanted," Shoulders said. "There are going to be parents who have moved, parents who say, 'Keep my $20.' There are going to be parents who won't fill out the claim form ... .

"Kids who were seniors in high school when the fee was imposed are now seniors in college. It's going to be interesting to see how many citizens out there really want their $20 back."

The ICLU sought a reimbursement of $80,000 in attorney fees from the school corporation. Knight denied that request.

Access the Supreme Court decision in Frank Nagy, et al. v. Evansville-Vanderburgh School Corporation via this 3/30/06 ILB entry. Access a list of entries related to the Nagy case here.

Posted by Marcia Oddi on Wednesday, September 13, 2006
Posted to Ind. Sup.Ct. Decisions

Ind. Courts - More on: Las Vegas attorney flunks breathalyzer test in open court, on camera

On August 9th the ILB published quotes from a story from Las Vegas that began:

After a lawyer due to defend a man against a kidnapping charge showed up to court late and smelling of booze last week, a Clark County District Court judge ordered the attorney to take a Breathalyzer test in open court, then declared a mistrial when the test confirmed her suspicions.

In a remarkable exchange captured by the courtroom's video camera, District Judge Michelle Leavitt ordered defense attorney Joseph Caramagno to submit to the test after she smelled alcohol on his breath.

Now it appears Indiana has its own similar story, albeit not as dramatic. This story from the Anderson Herald-Bulletin begins:
An Anderson attorney was arrested and charged with public intoxication in Madison Superior Court 1 Tuesday.

Paul E. Baylor, 35, 432 Hanover Drive, was arrested after failing a breathalyzer test with a blood-alcohol content of 0.14 percent in Judge Dennis Carroll’s court offices, police said.

“We were doing our usual Tuesday morning cases, and it just so happened that the state police officer, Trooper Noone, was here to testify in some particular case and happened to be sitting in the audience right next to Mr. Baylor,” said [Judge] Carroll.

“Paul wasn’t the lawyer on the hearing we were having, but he was scheduled to represent someone later that day,” [Judge] Carroll said. * * *

[Judge] Carroll said the officer approached the bench and told him he thought the man was drunk.

Then, the judge called for Rudy Pyle, the attorney representing the prosecutor’s office in the cases that morning, to come forward. Finally Baylor was asked to join them.

“This was right in the middle of the court proceeding,” [Judge] Carroll said. “I excused myself from the bench and had a conversation with Trooper Noone, Mr. Baylor and Mr. Pyle, and said, what do you think was the problem?”

[Judge] Carroll said that conference resulted in Baylor and the others going into the court offices, away from the main courtroom, where Noone administered the breath test.

Because the judge considered the incident a law enforcement matter, and not one of court administration, he advised the officer to do what he thought was appropriate considering all the circumstances, regardless of whether the accused was an attorney, he said. The trooper then made the arrest.

Posted by Marcia Oddi on Wednesday, September 13, 2006
Posted to Indiana Courts

Ind. Decisions - "State won't appeal decision tossing school petitions" [Updated]

The AP's Charles Wilson reports, in a story that begins:

Indiana's attorney general will not fight a court decision that said the state's process for determining public support for school bond issues is unconstitutional because it is limited to property owners.

The Indiana Court of Appeals stayed the order from taking effect until after next year's General Assembly session. Attorney General Steve Carter said Tuesday he will defer to lawmakers rather than appeal the case to the state Supreme Court.

"The upcoming legislative session will provide an opportunity for lawmakers to address the constitutional weakness of the statute," Carter said in a statement. "The attorney general's office will provide legal assistance and guidance to legislators as they revisit the law."

The state's petition and remonstrance process allows those for and against a school bond to collect signatures from property owners, with the side collecting the most signatures prevailing. Bonds are often used to finance multimillion dollar projects to build or renovate schools.

In a 3-0 ruling last month, the appeals court called the petitioning and remonstrance process a de facto election. The state cannot restrict traditional elections or referendums to property owners - so it should not do so with the "signature-collecting competition," the ruling said.

The decision, Bruce Jones v. Martha Womacks, was issued August 24th. See ILB summary here , along with reports here, here and here.

[Updated 9:27 a.m.]
Bryan Corbin of the Evansville Courier& Press has a story today adding details about the original lawsuit:
According to court documents, the original lawsuit was filed in Marion County by a parent in the Indianapolis Public Schools district, Bruce Jones. Because he was an apartment renter, Jones was ruled ineligible to sign a petition in a school district bond issue dispute. Jones was represented by the American Civil Liberties Union of Indiana, in a suit filed against the Marion County auditor, Martha Womacks. The trial judge granted the defendant's motion to dismiss the suit, but Jones appealed to the Indiana Court of Appeals, contending his equal protection rights had been violated.

Posted by Marcia Oddi on Wednesday, September 13, 2006
Posted to Ind. App.Ct. Decisions

Tuesday, September 12, 2006

Ind. Courts - Carmel annexations before both Court of Appeals and Supreme Court

Bill Ruthhart of the Indianapolis Star has a good overview today of the two Carmel annexation suits on appeal to Indiana's appellate courts. He writes:

Annexation once again will be on the minds of Carmel and Clay Township residents this fall as a pair of challenges make their way through the court system.

Property owners in southwest Clay Township and Home Place continue to fight Carmel's efforts to incorporate their neighborhoods. Remonstrators in both areas have defeated Carmel in Hamilton Superior Court, and the city has appealed both cases.

The Indiana Supreme Court has agreed to consider the southwest Clay annexation case, and the Indiana Court of Appeals is set to hear arguments in the Home Place annexation case later this month.

In both cases, Hamilton Superior Court Judge William Hughes ruled that Carmel did not adequately demonstrate how it could afford to annex the two areas, totaling nearly 10 square miles. Upon appeal, Carmel plans to argue Hughes micromanaged the annexations, requiring more than state statute calls for.

The southwest Clay case was expedited to the Indiana Supreme Court last month after the city argued the dispute was so important it should skip the Court of Appeals.

Carmel annexed 8.3 square miles south of 116th Street and west of U.S. 31 in November 2004. More than 65 percent of the property owners in the area remonstrated, taking the matter to court.

After challenging the annexation in court, No Ordinance for Annexation, or NOAX, agreed to a settlement deal with the city. That agreement called for a six-year delay in paying the full Carmel tax rate and a pledge by the city to improve major intersections while delaying any widening of rural roads. * * *

But a handful of southwest Clay residents continued to fight the annexation in court, and Judge Hughes ruled against the annexation in May, throwing out the settlement agreement.

With a number of annexation procedural questions in the air after Hughes' ruling, other communities signed onto Carmel's request to expedite the case to the Supreme Court. * * *

The Supreme Court has not yet set a date for oral arguments in the case. [Carmel City Attorney Doug] Haney said it likely would be November at the earliest.

Home Place. Property owners fighting annexation in Home Place already have a date with the Indiana Court of Appeals -- Oct. 27.

That's more than a year since Hughes ruled in favor of Home Place's fight against annexation. In that case, Hughes ruled Carmel did not prove it could afford to annex the 1.6-square-mile area.

Residents in Home Place, a neighborhood centered at 106th Street and College Avenue, continued to raise money for their cause. * * *

"The contributions that the Concerned Citizens for Home Place receives gives us the ability to continue paying our legal fees, which in turn gives us the ability to continue the fight against annexation," Milam said. "In the end, we think we'll be victorious."

Oral arguments in City of Carmel v. Certain Homeplace Annexation Territory are set for Wed., Sept. 27th at 1:30 in the Supreme Court Courtroom. That means they there will be online video. The case will be argued before the 3-judge panel of Judges Riley, Darden and Vaidik.

Earlier ILB entries on this case can be found from Oct. 5, 2005 and Oct. 6, 2005. The ILB was able to obtain a copy of trial Judge Hughs' opinion in this case - access it here.

As for the Southwest Clay case that will be heard by the Supreme Court on an emergency transfer basis, see this ILB entry from May 5, 2006. In this case too the ILB was able to obtain a copy of Judge Hughes' opinion - it is linked in the May 5 entry. The case is titled Certain SW Clay Twp. Annexation Territory Landowners v. City of Carmel. According to the Supreme Court docket in the case, 29 S 00 - 0608 - CV - 00300:


Posted by Marcia Oddi on Tuesday, September 12, 2006
Posted to Indiana Courts

Ind. Courts - Greene Superior Judge David Holt attends pro se conference in Iowa

The Greene County Daily World reports:

Greene Superior Judge David Holt attended the Midwest Regional Conference on Pro Se Litigation at Des Moines, Iowa, on Sept. 7-9 as one of five delegates appointed by Indiana Supreme Court Chief Justice Randall Shepard to represent the state at the conference.

Other delegations participating and appointed by their respective state chief justices were from Illinois, Wisconsin, Minnesota, North Dakota, South Dakota, Nebraska, Kansas, Missouri, Iowa, and Utah.

The conference was presented by the American Judicature Society with funding support from the Chicago Bar Foundation, the Iowa State Bar Foundation, the State Justice Institute, and Drake University Law School.

The goal of the conference was to bring judges, lawyers, court staff, legal aid lawyers, legal academics, law and public librarians, and other interested parties together to share information about the need for assistance to parties representing themselves in legal proceedings, to lighten the burden on such parties, to engage lawyers in this effort, and to develop action plans to be implemented in the states participating in the conference.

Within the next 30 days, Judge Holt and the other members of the Indiana delegation will submit their action plan to the Indiana Supreme Court recommending further steps that can be taken in Indiana to provide continued and improved access to justice for all citizens.

In recent years increasing numbers of litigants have been taking a do-it-yourself approach to their legal needs and have been entering our nation's courtrooms without a lawyer. Courts have been left to cope with an overwhelming number of people who don't know the court system, while litigants are often left frustrated.

In 2001, Judge Holt was appointed by Chief Justice Shepard to chair an Indiana Pro Se Advisory Committee to advise the Indiana Supreme Court on responding to the increasing numbers of self-represented litigants. The Pro Se Advisory Committee has met often and made certain recommendation to the Indiana Supreme Court. The Committee has raised issues that have been debated and continue to be debated among bench and bar. To meet the challenge of the increasing numbers of self-represented litigants, the Indiana Supreme Court has approved many changes in rules and procedures, has authorized the use of certain standard forms, and provided a Self-Service Center on the webpage of the Indiana Supreme Court.

Posted by Marcia Oddi on Tuesday, September 12, 2006
Posted to Indiana Courts

Ind. Courts - Five candidates named for vacancy on St. Joseph Superior Court

From a release dated 9/11/06:

The St. Joseph Superior Court Judicial Nominating Commission today submitted to Governor Mitchell E. Daniels, Jr. its list of five candidates to fill a vacancy on the St. Joseph Superior Court, Indiana Supreme Court Justice Frank Sullivan, Jr., announced today. The vacancy will occur on September 30, 2006 when the Honorable William H. Albright retires. From the list, Governor Daniels will appoint Judge Albright's successor. The nominees are:
  • Mark A. Kopinski, 47, a sole practitioner and public defender and former deputy prosecutor in St. Joseph County.
  • Marielena Lindke, 35, a deputy prosecutor in Elkhart County and former deputy prosecutor in St. Joseph County.
  • Hon. Richard Leo McCormick, 38, a Magistrate of the St. Joseph Superior Court.
  • Jane Woodward Miller, 56, an adjunct professor at the University of Notre Dame Law School and former Magistrate of the St. Joseph Probate Court.
  • Jeffrey Lane Sanford, 47, a sole practitioner and assistant city attorney and former public defender in St. Joseph County.
Under state law, the Commission must submit to the governor a list of five candidates with written evaluations of the qualifications of each candidate. Following his receipt today of the list of nominees, Governor Daniels has 60 days in which to make his appointment to the St. Joseph Superior Court. In the event he does not do so, the Chief Justice of the Indiana Supreme Court shall make the appointment from the list of nominees.

The Indiana General Assembly established the Nominating Commission in 1973. It consists of seven members. Three of the members must be lawyers elected by the lawyers of the county. Three must be non-lawyers appointed by a committee consisting of the judge of the St. Joseph Circuit Court, the mayors of South Bend and Mishawaka, and the president of the board of St. Joseph County commissioners. The seventh member, who serves as chairman of the Commission, must be a justice of the Indiana Supreme Court or a judge of the Indiana Court of Appeals, and appointed by the Chief Justice of Indiana. Pursuant to this position, Justice Sullivan serves as chairman.

For background, see this ILB entry from 9/5/06.

Posted by Marcia Oddi on Tuesday, September 12, 2006
Posted to Indiana Courts

Ind. Decisions - 7th Circuit issues two Indiana decisions today

In McKinney, Timothy v. Duplain, Robert (SD Ind., Richard L. Young, Judge), a 28-page opinion [this is the case of the Ball State student shot by police], Circuit Judge Manion writes:

Michael McKinney’s father, Timothy McKinney, as representative of Michael’s estate, sued Officer Duplain under 42 U.S.C. § 1983, alleging a claim of excessive force after Officer Duplain shot and killed Michael while responding to a 911 burglary-in-progress call. Officer Duplain moved for summary judgment based on qualified immunity. The district court denied the motion and Officer Duplain appeals. We dismiss for lack of jurisdiction. * * *

McKinney counters that this court lacks jurisdiction to consider whether Officer Duplain acted reasonably in using deadly force. Generally speaking, 28 U.S.C. § 1291 does not confer jurisdiction to review a district court’s denial of summary judgment. See Jones, 425 F.3d at 466. “However, an exception to this rule comes into play when a movant requests summary judgment based on qualified immunity.” Id. In that circumstance, “[u]nder the collateral order doctrine the district court’s denial of [a] motion for summary judgment based on qualified immunity is an immediately appealable ‘final decision’ within the meaning of 28 U.S.C. § 1291 to the extent that it turns on legal rather than factual questions.” Wernsing v. Thompson, 423 F.3d 732, 741 (7th Cir. 2005). A defendant, though, “may not appeal a district court’s summary judgment order insofar as that order determines whether or not the pretrial record sets forth a ‘genuine’ issue of fact for trial.” Johnson v. Jones, 515 U.S. 304, 319-20 (1995). * * *

This court considered the scope of Johnson in Leaf v. Shelnutt, 400 F.3d 1070 (7th Cir. 2005). In Leaf, members of John Leaf’s family sued, among others, two sheriff’s deputies, alleging they unlawfully searched Leaf’s apartment, unlawfully seized him, denied Leaf life, liberty and property without due process of law, and that Deputy Shelnutt had used excessive force against Leaf. Id. at 1075-76. The claims all stemmed from an early morning incident on May 5, 2001, when John Leaf returned home from a night of drinking. [This was also an Indiana case - here is the 7th Circuit opinion] * * *

The district court denied Officer Duplain’s motion for summary judgment based, in part, on its belief that a genuine issue of material fact existed as to whether McKinney had charged Officer Duplain. Although that conclusion rested on the district court’s reliance on several problematic expert opinions, under the Supreme Court’s holding in Johnson, this court lacks jurisdiction to review the district court’s conclusion that a genuine factual dispute exists. Therefore, we must DISMISS for lack of jurisdiction.

In Kochert, Carolyn v. Greater Lafayette Health Services (ND Ind., Allen Sharp, Judge), a 17-page decision, Circuit Judge Williams writes:

In this appeal, Carolyn Kochert challenges the district court’s grant of summary judgment for the defendants on Kochert’s claims alleging violations of Sections 1 and 2 of the Sherman Antitrust Act. Mindful of the Supreme Court’s admonition that the purpose of federal antitrust law “is not to protect businesses from the working of the market; it is to protect the public from the failure of the market,” see Spectrum Sports, Inc. v. McQuillan, 506 U.S. 447, 458 (1993), we conclude that Kochert does not have antitrust standing, and so we affirm the judgment of the district court. [This is an interesting case about medical practice groups and hospitals.]

Posted by Marcia Oddi on Tuesday, September 12, 2006
Posted to Indiana Decisions

Environment - "Was Manure-to-Power Venture Just Bull?"

From the LA Times, a lengthy must-read story in this era of turning corn into gold, and pig manure into electricity. It begins:

As he sold investors on an improbable plan for turning Inland Empire cow manure into electricity, W. Patrick Moriarty had an answer for everything.

With a folksy delivery, the Orange County businessman promised cutting-edge technology, a respected engineering firm and tax-exempt financing to extract methane gas from mountains of manure and use it to generate enough power to light a small city.

"He told me categorically that we would get our money back with interest and that the project was as good as gold," said Shmuel Erde, a Beverly Hills lender.

What Moriarty and his business partner, Wayne Stephens, didn't tell Erde and numerous others who altogether invested more than $10 million was that their company, Chino Organic Power Inc., had no licensed technology, no equipment, no permits — not even a guaranteed supply of manure.

Although manure-to-electricity plants have been used on a small scale to turn water-polluting cow waste into power, they are not particularly cost-effective and have never produced close to the amount of electricity Moriarty envisioned, documents and interviews show.

Another thing Moriarty didn't tell Erde and the others was that he had gone to prison in the 1980s in what then-U.S. Atty. Robert C. Bonner called "the most significant corruption case in recent California history."

Not surprisingly, the lofty energy plan has come crashing down, followed by a bankruptcy and accusations from angry investors, a number of whom have filed lawsuits alleging fraud by Moriarty and Stephens, a San Bernardino County businessman.

If it sounds too good to be true . . .

Posted by Marcia Oddi on Tuesday, September 12, 2006
Posted to Environment

Law - Arizona Voter ID Law Upheld by District Court

This AP story in today's Washington Post reports:

PHOENIX, Sept. 11 -- A federal judge declined Monday to block a law that requires Arizona voters to present identification before casting a ballot.

U.S. District Judge Roslyn O. Silver's order came a day before Tuesday's primary, the first statewide election for which voters will be required to show identification. The law has already been used in some municipal elections.

The 2004 law requires that voters at polling places produce government-issued picture ID or two pieces of other non-photo identification specified by the law. It also requires proof of citizenship when registering to vote.

Parts of the law were aimed chiefly at illegal immigrants.

A number of challengers had sued to prohibit election officials from enforcing the registration and polling-place identification requirements. Critics said that the law would disenfranchise voters, particularly minorities and the elderly, and that requiring voters to acquire and produce identification would be burdensome in time, money and effort.

They also claimed it hinders voter registration drives.

Secretary of State Janice K. Brewer said the law was a protection against voter fraud. "Today's court ruling assures the integrity of this process by retaining the requirements established by Proposition 200," she said in a statement.

Within hours, lawyers for some of the challengers filed an appeal with the U.S. Court of Appeals for the 9th Circuit in San Francisco.

Silver asked for additional briefs and scheduled an Oct. 19 hearing but did not explain her reasoning.

Silver's brief order said that she would issue a detailed explanation later but that the challengers "have not shown a strong likelihood of success on the merits, the balance of hardships favor the defendants and the public interest would not be advanced by granting the injunction."

Here is a list including earlier ILB voter ID entries.

The LA Times today has a fascinating lengthy article that begins:

PHOENIX — Little noticed by voters, a nationwide melee has broken out pitting liberal and conservative groups in a duel over new laws that could determine who wins close elections in November and beyond.

The dispute, which is being fought in disparate and often half-empty courtrooms in as many as nine states, concerns new state laws and rules backed primarily by Republicans that require people to show photo identification in order to vote and, in some cases, proof of citizenship and identification when registering to vote.

One measure prompted the League of Women Voters to halt its voter registration drives in Florida out of fear of facing criminal penalties. That law, and a similar provision in Ohio that threatened voter registration drives by other groups, was blocked in recent weeks by federal courts.

The legal battle reflects a deep partisan divide, with Republicans arguing that the new requirements are needed to prevent voting fraud and boost confidence in election results, and Democrats charging that they disenfranchise seniors, minorities, students and others who tend to vote Democratic.

Hundreds of thousands of votes are potentially at stake in some of the most contested congressional races this year and the 2008 race for the White House, making the court cases the latest battle in a broader war over election policies that has been raging since the 2000 Florida recount.

One example of the skirmishing came late last month in a federal courtroom in Phoenix, where a Navajo leader, occasionally speaking in his tribal language, testified that thousands of his people would lose their right to cast ballots under a new Arizona law that requires voters to present a photo ID or other proof of identity at the polls.

The leader, Leonard Gorman, testified that many Navajo who spend their lives herding sheep in remote areas cannot fulfill the new requirements because they do not drive, nor do they have mailboxes or even the utility bills that are accepted as alternative forms of identification under the new law.

"This is very burdensome to the elders," Gorman told U.S. District Judge Roslyn Silver.

The provision had been approved by Republican lawmakers and vetoed by Arizona's Democratic governor before conservative activists included it as part of a broad anti-immigration initiative passed by voters in 2004.

Gorman was describing a highly localized, narrow slice of the electorate — about 60,000 voting-age adults living on the reservation. But Native Americans tend to vote for Democrats.

And in a closely fought state, the votes of a handful of Navajo could be decisive.

More quotes from the LA Times piece:
Republicans had great success enacting new laws after 2004, winning voter identification requirements in Georgia, Ohio, Indiana, Missouri and the city of Albuquerque as well as the Arizona law, while adding the voter registration restrictions in Ohio and Florida. * * *

In court so far, challenges to the voter identification laws have met with mixed results. Judges have halted two versions of the Georgia law, but a law has been upheld in Indiana.

Challenges are pending elsewhere.

"With voter ID and registration, this is where the current battles over election practices are now being fought," said Dan Tokaji, an Ohio State University law professor who publishes the election-law blog Equal Vote. * * *

In the Phoenix courtroom, opponents of the state law argued that thousands could be disenfranchised by the new identification rules. The state's lawyers said those estimates were inflated.

A lawyer for the state argued that the voting system was vulnerable to fraud by impersonators and noncitizens; lawyers fighting the new law said there was little to no evidence of past fraud.

One of the lawyers for groups challenging the law, David Rosenbaum, pointed out that the law required no identification from people casting absentee ballots by mail, and that whites were over three times more likely to vote that way than were minorities — a clear case of discrimination, he said.

Silver on Monday refused to halt the law before today's Arizona primary, but she asked for more evidence regarding claims that the new registration requirements might violate voters' civil rights.

Lawyers on both sides expect that whatever she rules will be reviewed by the U.S. 9th Circuit Court of Appeals. Ultimately, the Supreme Court is likely to have the final say on that case and others.

See also Prof. Rick Hasen's Election Law blog, and two items he points to, a column he published in Slate titled "Fraud Reform? How efforts to ID voting problems have become a partisan mess," and a post by Bob Bauer of Perkins Coie LLP who argues that:
The manufactured crisis of “voter identification” helps to keep attention and funding and political legitimacy from being concentrated where it is most needed.

Posted by Marcia Oddi on Tuesday, September 12, 2006
Posted to General Law Related

Ind. Decisions - More on 7th Circuit Cigarette Smuggling Decision

Picking up on yesterday's opinion by a 7th Circuit panel in the case of USA v. Daryl Harper (see ILB entry here), Charles Wilson of the AP writes:

Kramer and Newman couldn't get away with cashing in on differences in state laws and neither can an Indiana gas station manager, a federal appeals court said.

The 7th U.S. Circuit Court of Appeals in Chicago on Monday upheld Daryl Harper's conviction on conspiracy and other federal charges stemming from a cigarette smuggling operation that netted hundreds of thousands of dollars.

According to court records, Harper sold cigarettes at his BP Amoco station in Hammond to partners who then illegally resold them for profit across the state line in Chicago, where taxes were as much as 75 cents higher.

Appeals court Judge Michael Kanne noted in his ruling the conspiracy's resemblance to a 1996 episode of the television series "Seinfeld."

"Kramer and Newman devised a similar scheme to capitalize on Michigan's higher deposit for soda bottles and cans by using a postal truck to transport recyclables gathered in New York for return in Michigan," he wrote. "Alas, the plan was foiled by a fanatical auto mechanic in possession of Jerry's car and JFK's golf clubs."

Trouble is - at least in the real-life case - such moneymaking plans, called tobacco diversion, are illegal.

Some of Harper's partners used counterfeit coupons to increase their profit margin, the court said.

One of the partners, Abdelhakin Al Najjar, called Abdul in court records, "became the biggest customer at Harper's store by a wide margin. ... Abdul was submitting so many coupons they could not fit in the cash register," Kanne wrote.

On one day alone, Al Najjar used more than $25,000 worth of coupons to buy some 1,700 cartons of cigarettes, court records said. The scheme unraveled in 2002 when a file clerk at the company's coupon processing center in Houston noticed the fakes.

Posted by Marcia Oddi on Tuesday, September 12, 2006
Posted to Ind. (7th Cir.) Decisions

Ind. Law - More on: Sex offender law impacts examined

Updating its story from last Friday (see ILB entry here), the Evansville Courier& Press has an editorial today headed "Sex Offenders: Critchfield residency case raises some issues."

Posted by Marcia Oddi on Tuesday, September 12, 2006
Posted to Indiana Law

Ind. gov't. - Arguments for transparency in local budgeting

The Evansville Courier& Press has a story this morning by John Martin that begins:

In passing the Evansville-Vanderburgh School Corp. 2007 budget on Monday, School Board members said they've responded to criticism about "transparency" issues.

A local taxpayers group, however, cited those issues in objecting to the budget.

EVSC is Vanderburgh County's largest taxing entity, and board member Mike Duckworth said he agrees with those who say the corporation's finances are hard to understand.

"It needs to be an easier instrument to read," Duckworth said. "Whether that can be done with a $200 million budget, I don't know. But we need to make that effort."

Duckworth and board member Dana Willett noted that EVSC's Web site has been revamped to include more information about the budget.

That data, said Willett, is in easy-to-understand form.

"We've made quite a bit of progress this year relating to transparency of the budget," Willett said, and referring to the Web site - www.evscschools.com - he said, "I'd hate to see that not looked at, because there's been a lot of effort in putting it together."

Posted by Marcia Oddi on Tuesday, September 12, 2006
Posted to Indiana Government

Monday, September 11, 2006

Ind. Decisions - Court of Appeals issues no FP so far today (but 3 NFP)

For publication opinions today (0):

NFP civil opinions today (1):

Joshua E. Sallee v. Geneva H. Sallee (NFP)
- settlement agreement, affirmed.

NFP criminal opinions today (2) (link to cases):

Elliott Scott Stapleton v. State of Indiana (NFP)

C.P. v. State of Indiana ((NFP)

Posted by Marcia Oddi on Monday, September 11, 2006
Posted to Ind. App.Ct. Decisions

Ind. Decisions - One Indiana case decided today by 7th Circuit

In USA v. Daryl Harper (ND Ind., Robert L. Miller, Jr., Chief Judge), a 12-page opinion, Circuit Judge Kanne begins:

In early 2002, steep taxes imposed by various levels of government in Illinois resulted in a levy of 92 cents per pack for consumer purchases of cigarettes in Chicago. At the same time, cigarettes sold in Indiana were taxed at a mere 15.5 cents per pack. An entrepreneur with a car and a willing buyer in Chicago could make a pretty penny, especially if coupons could be used to keep a lid on operating expenses.[1] But arbitrage in this context is called tobacco diversion, and it is illegal. Daryl Harper appeals his convictions and sentence for taking part in such a scheme. We affirm. * * *
[1] In a two-part episode of Seinfeld, Kramer and Newman devised a similar scheme to capitalize on Michigan’s higher deposit for soda bottles and cans by using a postal truck to transport recyclables gathered in New York for return in Michigan. Alas, the plan was foiled by a fanatical auto mechanic in possession of Jerry’s car and JFK’s golf clubs. Seinfeld: The Bottle Deposit: Parts 1 & 2 (NBC television broadcast May 2, 1996).

Posted by Marcia Oddi on Monday, September 11, 2006
Posted to Ind. (7th Cir.) Decisions

Environment - Revised ordinance for outdoor wood boilers set for review

The ILB has had many entries on the state environmental agency's efforts to regulate outdoor wood-fired boilers. The effort stalled in early 2006.

Local governmental units have now begun their own efforts to address the issue. Here is an ILB entry from August 7 about efforts in Evansville.

Today Bryon Rohrig of the Evansville Courier& Press has a story headed "Revised ordinance for wood boilers set for review." Some quotes:

Enough questions were raised Aug. 28 over a proposed preemptive ordinance to ban outdoor wood boilers that the Evansville City Council tabled it.

On Monday, the council's Administration, Safety and Development Committee is set to review a new version of the bill whose only significant changes alter standards for boilers already in operation within the city limits. There are believed to be no more than a few.

Deon Sheckells, a city resident who said he's used an outdoor wood boiler to heat his home for more than a decade, was among a handful of people who two weeks ago registered objections with the council on the measure, ultimately persuading members to hold off on a vote.

Outdoor wood-fueled boilers - not to be confused with outdoor smokers for cooking meat - usually are contained in insulated sheds.

Water is heated, then piped to a nearby house or other building for heat.

The devices have come under fire, especially when used in urban settings, for inefficient combustion, which produces excessive smoke.

Sheckells told the council his boiler is equipped with a secondary flue gas-combustion chamber that burns up much of the smoke generated in primary burning.

Dona Bergman, director of the Evansville Environmental Protection Agency, placed typical combustion efficiency of the boilers at 30 to 40 percent. One of them, she added, can throw out as much particulate pollution as 1,800 gas furnaces.

She pushed the proposed law as one that would save residents from investing up to $20,000 each for devices that could set them up for expensive fines for violating federal EPA regulations.

The revised ordinance would reduce the buffer required between an existing boiler and adjacent buildings "intended for human occupancy" and change standards for flue heights of existing boilers. But prohibition of new boilers within the city limits would stand.

Posted by Marcia Oddi on Monday, September 11, 2006
Posted to Environment | Indiana Government

Ind. Gov't. - Greenwood attorney to head gaming panel

Lesley Stedman Weidenbener of the Louisville Courier Journal reports today via a lengthy story that begins:

INDIANAPOLIS -- When the Indiana Gaming Commission meets Thursday, it will do so with a new chairman, one eager for a challenge.

Greenwood lawyer William Barrett is taking over the spot vacated by Harold Calloway of Evansville, who left to become a trustee at the University of Southern Indiana.

Posted by Marcia Oddi on Monday, September 11, 2006
Posted to Indiana Government

Sunday, September 10, 2006

Courts - An end to secret dockets in Florida?

The St. Petersburg Times has an editorial today that begins:

When state Supreme Court Chief Justice Fred Lewis heard that court cases were being kept off the public docket in jurisdictions around Florida, his response was one of shock. "I almost swallowed my tongue," Lewis told the Miami Herald. But then shock turned to action as Lewis enlisted the state's clerks of court to suggest new statewide rules. The clerks have returned with a set of reasonable changes to current practices that would reduce the likelihood of court documents being put out of public reach.

The Florida Association of Court Clerks and Comptrollers draft proposal would sharply restrict the ability of judges to remove all evidence of a case's existence from the public docket. This has been a problem in the Broward Circuit Court in particular, where more than 400 divorce, negligence and other types of civil and criminal cases were wiped from the public record. A Herald investigation found that many of those cases involved politicians, judges and other highly visible or well-connected people.

Here is a list of some other ILB entries on secret dockets.

Posted by Marcia Oddi on Sunday, September 10, 2006
Posted to Indiana Courts

Ind. Courts - More on: "Mediation ordered in Clark fee dispute: Council, judges still wrangling" [Updated]

The ILB had a lengthy entry on the Clark County dispute between judges and the county council over legal fees on July 15th. That entry included this quote from a Fort Wayne Journal Gazette editorial:

Why should you care about a dispute between the Clark Couny Council and four elected judges? Because it could affect the way all Indiana counties spend public money. Due to the statewide implications, the Indiana Supreme Court has agreed to decide the case instead of leaving it in the Indiana Court of Appeals.
The entry also included these quotes from the Louisville Courier Journal:
A financial dispute between the Clark County Council and the county's four elected judges will grind on for at least another six weeks after the Indiana Supreme Court ordered the matter to mediation. * * *

Clark Superior Court Judge Steve Fleece said in a written statement that the fee case had become a "gruesome and costly stalemate," which he compared to trench warfare.

He said the mediation will not have any value as a legal precedent, either locally or in other Indiana counties.

"Both sides wanted clear guidance and finality," he said in the statement. "Neither side has obtained its objective."

Today Ben Zion Hershberg has this report in the Louisville Courier Journal:
Court-ordered mediation in a $1.3million legal dispute between Clark County's judges and the County Council has failed, leaving the Indiana Supreme Court to decide the case.

The dispute is over who controls hundreds of thousands of dollars in fees paid by people who were put on probation by the courts. In Clark County, the fees amount to more than $450,000 a year.

The case "has statewide implications," said David Lewis, the lawyer representing Clark County's four judges, who filed a lawsuit against the County Council last year.

All Indiana counties have courts that generate such fees from probationers — and county councils that often need more money.

Jim Smith, president of the Clark County Council, said county governments statewide are following the case. Any decision by the Supreme Court "certainly creates problems on either side," he said.

In its 2005 and 2006 budgets, the Clark County Council decided to fund 10 percent of general court operating expenses from the probation user fund, leading to the lawsuit by the judges.

The appropriation included paying 10 percent of the salaries and benefits of court reporters, court secretaries and bailiffs, and jurors' meals and other court expenses from the fund, Special Judge Elaine Brown of Dubois County said in a March ruling on the case.

Brown ruled that such appropriations without the judges' permission violate state laws that give county judges control of probation user fees, since the fees are generated by the courts and not by county taxes.

State law says the County Council must follow county judges' guidance on how probation funds are to be used each year, Brown said.

She also said the council's decision to use probation fees for general court costs rather than probation departments could create ethical issues. Judges could feel pressured to convict more people who then could be put on probation to generate fees to support the courts, she said.

"The decision of the Clark County Council to use probation user fees to fund the most basic court operations has created just such a denial of due process for a person accused in Clark County," Brown said.

She ordered the County Council to repay the courts what was spent on court costs, other than probation expenses approved by the judges.

Smith said the council appealed Brown's ruling to the Indiana Supreme Court because the repayment would have a large impact, and because the council wanted guidance in time to develop the 2007 budget, which was completed last week.

The 2007 budgets for the courts generally follow the same approach as the two previous years, he said.

After Brown's ruling, the state Supreme Court ordered mediation sessions in an effort to settle the dispute. Smith said the last of two sessions with a mediator from Indianapolis was held Sept. 1.

Geoff Davis, an administrator for the Indiana Supreme Court, said the court has been notified by the mediator that he was unable to resolve the dispute.

Because of the case's unusual nature, there is little history to indicate how the court is likely to handle it, Davis said.

"I can't tell you what the next step will be," he said.

Here is the status according to the docket in the case (10 S 00 - 0606 - CV - 00199):

9/05/06 -- ****** ABOVE ENTRY MAILED ****** RECEIVED BY CLERK 9/5/06

[Updated 9/11/06] Here is an AP version of the same story.

Posted by Marcia Oddi on Sunday, September 10, 2006
Posted to Indiana Courts

Ind. Courts - Tippecanoe judges at odds over evaluation program

Joe Gerrety of the Lafayette Journal-Courier writes today:

A Tippecanoe County judge's displeasure with a program that provides court-ordered drug and alcohol evaluations means about seven county employees could lose their jobs by the end of the year.

It could lead to the creation of a separate program that offers the same services.

Judge Les Meade of Tippecanoe Superior Court 5 a month ago stopped referring offenders to Court Services, causing a 43 percent drop in business for the agency, set up by the courts, that has 13 full-time and four part-time employees.

Meade's court is one of three "high-volume" courts that traditionally have referred misdemeanor offenders to Court Services for drug and alcohol evaluations, education classes and monitoring of community service.

With Meade's withdrawal, Court Services has lost all of its referrals based on convictions for consumption of alcohol by a minor, public intoxication, theft and domestic violence -- 1,400 clients annually. * * *

Starting in mid-August, Meade began referring offenders like Zewde to Wabash Valley Outpatient Clinic for evaluations and substance abuse classes.

But Meade learned on Friday that in order to continue taking on such cases, Wabash Valley would be charging clients $300, the same amount Court Services charges.

Meade rejected that proposal and said he may have to create a new program to serve his court and any other Tippecanoe County judge who is interested.

"Right now, I am without a provider of these services, and if there's someone in the community who is willing to provide these services, I'd like to talk to them," Meade said.

He said he is working to set guidelines so that other service providers in the community can offer court-ordered programs that might be covered by private health insurance plans.

"I don't want to close the door on anyone who can provide the same kinds of evaluation and education services," Meade said. * * *

Meade said he has had concerns about Court Services since he took the bench four years ago.

He thinks Court Services' $300 maximum fee for orientation, evaluation and education classes is too high. The program has a sliding fee schedule for offenders who are indigent, and on average, clients pay $210, Court Services director Cindy Houseman said.

Meade said Houseman has not adequately responded to his requests for an independent evaluation of the program's effectiveness.

"For the people coming through this court, I believe they were being overcharged and taken advantage of," Meade said.

"If the public had wanted the cases in this court to be handled in the same manner that they were handled four years ago, I wouldn't be a judge today," Meade said, referring to his 2002 Republican primary defeat of one-term incumbent judge Laura Zeman. * * *

Houseman said she has responded as best she can to Meade's questions, providing a detailed comparison of Court Services' costs and services with similar programs in other Indiana counties. She even enlisted the help of a Purdue University statistician to compile the data independently. But Meade was not satisfied.

In an Aug. 2 e-mail, Meade asked Houseman to resign or he would stop referring offenders from his court to the program. But the two other judges who supervise Houseman did not support him.

Court Services is self-supporting through user fees paid by clients. To replace the lost business, the program has launched a marketing effort, attempting to sell its alcohol and drug classes to private employers, making its services available to courts outside Tippecanoe County and to Tippecanoe Circuit Court and Superior Court 2, which handle more serious felony cases.

Other judges supportive

Judge Gregory Donat of Superior Court 4 and Judge Michael Morrissey of Superior Court 6 don't share Meade's concerns and are continuing to use Court Services.

"I have a great deal of confidence in Court Services and what they're doing over there," Morrissey said. "I've never had a problem of any sort over there. I think their programs are well done."

He said it would be a shame if Court Services has to cut staff and programs because of the loss of business.

Donat, the county's most senior judge and the supervising judge for Court Services, helped to establish the program. He has had heated exchanges with Meade by e-mail and in person over Court Services.

"I think he's made it clear he's not going to change his mind about it," Donat said. "I pointed out that people will lose their jobs. ...

"We took many years to develop the program and provide the services to people. People from out of state come to look at our program. It's held up as a model."

Posted by Marcia Oddi on Sunday, September 10, 2006
Posted to Indiana Courts

Ind. Courts - Mistake in filing may keep Cass Circuit jdge candidate off the ballot

Dave Kitchell of the Logansport Pharos-Tribune has had several stories over the past few weeks about a Cass County attorney's problems in getting his name on the ballot.

On Aug. 25 Kitchell reported:

A mistake that fell between the cracks of experience of a first-time candidate and a first-time county chairman may cost a Logansport attorney his chance at becoming Cass Circuit judge.

Democrat Leo Burns is awaiting word from state election officials today on his candidacy. Although Burns was chosen by precinct committeemen in a caucus to be slated as the party candidate in November, a notice of the caucus was not filed by Burns or County Chairman Matt Meagher with the state. Burns did file a declaration of candidacy and a statement of economic interest with the state, but the notice of the caucus must be filed. The Indiana Secretary of State has until noon today to certify candidates for the November election.

After returning from vacation earlier this month, Burns first discovered the error when he checked the Indiana Election Division Web site and found his name was not among the balloted candidacies. After placing a call to the division Aug. 7, he learned the next day his candidacy was not recognized because a notice of the caucus has not been filed with the state.

After consulting with election officials, Democrats held a second caucus Monday to choose Burns again based on a portion of Indiana law that allows parties to caucus a second time if a candidate is withdrawn from the election. Based on the series of events, Burns is claiming his candidacy has been withdrawn by the state.

“Actually the law requires, the way it is set up, if you call a caucus to fill a vacancy, the call of the caucus needs to be filed unless the Central Committee chairperson has received authority to appoint candidates himself.”

Cass Democratic Chairman Matt Meagher said Thursday he takes full responsibility for the error.

“It was my mistake,” he said.

Meagher, who took over the job from Dan Applebee, said he does not blame the Cass County Clerk’s Office for the error, which leaves the party without a candidate for Circuit Court judge against another first-time candidate, Republican Sheryl Pherson.

Burns said the Indiana Election Commission has 14 days to act on his candidacy, and if it rules against him, he has other avenues to appeal. Ironically, a job that deals with courts every day may involve one before the election.

“If I don’t prevail administratively, then the only option is to file a lawsuit in an effort to have a judge declare that I should be a candidate on the ballot,” Burns said.

“I haven’t given up.”

In Indiana, candidates for judge and prosecutor are considered pseudo state officeholders even though they are county officials because the bulk of their salaries are paid by the state. Nonetheless, Burns says because documentation of the first caucus that chose him was filed in Cass County, that should be a notice of the party intent to select him as its candidate.

This opinion piece appeared in the August 27th issue of the paper. Some quotes:
One problem with Indiana election law is that it allows candidates paid with state tax dollars to file in Indianapolis, but make only ministerial, advisory filings in their own counties. Candidates for the legislature, for example, are not even required to file in their own counties. For the sake of notifying everyone involved, it would make more sense to make the process reciprocal, so that if a candidate files in one location, all documents are automatically filed in another. If it can be done to make millions of Indiana motorists legal on the highways through the BMV, it ought to be easy to do with the Indiana Election Division. The BMV would not operate the way the Indiana Election Division does, and couldn’t. Given the recent problems with BMV services, holding it up as an example of good government is a stretch.

Stories such as Burns’ case raise issue with the reasons why candidates often avoid getting involved in politics. New candidates can be tripped up by technicalities. That can be discouraging for candidates and voters.

The ironic thing about outdated Indiana election law is that if Burns were already judge and he chose not to run again as Logansport City Councilwoman Mary Cotner did in the last election, he would continue to serve by default without filing for anything, anywhere.

What’s wrong with this process? When people who want to run for public office are unable to run because there is no documentation checklist when they file any document, the process itself becomes a way of sabotaging elections based on rules the average taxpayer who may want to run for office may not know. What’s really unfortunate is that no one in a position of authority is required to step forward before election deadlines and advise them what they need to know.

Finally, this story from Saturday, Sept. 9 reports:
Leo Burns wants to become a judge, but first, he will need to get a ruling in the courtroom where he some day wants to be employed.

The Logansport attorney has filed an action in Cass Circuit Court along with Logansport City Councilman Scott Kraud and former Logansport Mayor John Davis to be added to the ballot. Cass Circuit Judge Julian Ridlen, a Republican, has granted a hearing for a preliminary injunction that would prevent his name from being omitted from the November ballot.

The hearing is set for 10 a.m. Sept. 19.

Burns, who would be running against Republican Sheryl Pherson, says he has exhausted all other appeals through the Indiana Election Division which is part of the Secretary of State’s Office. He does not want to file legal action, but has no other way to challenge the process.

“The preliminary injunction hearing which is on the 19th is really the crucial hearing. The standard there is that we have to show a likelihood of prevailing in the long run in order to have a preliminary injunction issued. If the preliminary injunction is not issued, it does not necessarily mean we won’t be successful. The problem would be the timing of it. There just isn’t enough time between now and Oct. 1.”

By Oct. 1, absentee ballots will already be in the process of being distributed, Burns says.

“I have legal counsel. My legal counsel believes we’ve exhausted all administrative remedies.”

Burns says there does not appear to be another incidence like his in previous years on the books. One of the statutes that is being cited for preventing his candidacy just took effect in March, he says. Although forms were filed on time, the state is taking a different view of the campaign.

“Our position is that these forms complied with the timing aspect of it. They were filed in the wrong place.”

The documents were filed with the Cass County Clerk’s Office instead of with the state. County judge races are different from most other candidacies on county ballots because the positions are mostly funded by the state.
Burns is represented by Logansport attorneys Jim Austen and Courtney Justice.

Posted by Marcia Oddi on Sunday, September 10, 2006
Posted to Indiana Courts

Ind. Courts - Indiana doesn't keep annual divorce numbers

Niki Kelly of the Fort Wayne Journal Gazette reports today:

[T]here is no annual divorce rate for Indiana; no way to accurately tell how many people got divorced in Indiana last year or any other year.

In fact, national reports on divorce statistics contain an “n/a” next to Indiana – data not available.

To some, the lack of data is an interesting side note, but several lawmakers expressed concern that some legislation is pushed based on an assumption of a high divorce rate.

“It certainly seems to me that it’s a statistic we ought to track, especially in connection to keeping families intact,” House Speaker Brian Bosma said.

In fact, Bosma insisted the non-partisan Legislative Services Agency has such a number, noting that a 50 percent divorce rate is often cited in testimony on bills before the General Assembly.

The Legislative Services Agency, though, ran into the same problem, noting that most states have divorce rates per 1,000 members of the population while information for Indiana is not available.

Other states that don’t track divorce data are California, Georgia, Hawaii and Louisiana.

State Court Administration – a division of the Indiana Supreme Court – keeps all kinds of statistics and one of them comes close to tracking Hoosier divorces but is not totally accurate.

That might be why national and state information centers – including the federal Division of Vital Statistics – aren’t using the statistics, said Tom Carusillo – director of trial court services for State Court Administration.

He noted that divorce cases are filed in county courthouses under a domestic relations heading.

In 2004, according to the Indiana Judicial Service Report, 37,410 domestic relations cases were filed and 36,138 were disposed. The numbers differ because many cases span a significant time period.

But the problem is that domestic relations cases aren’t just divorces – technically called dissolutions in Indiana.

They also include legal separations, which are rare, and more typical petitions to establish child support. On occasion, grandparents even file for custody under this heading.

There is no way, Carusillo said, to know how many of those domestic relations cases actually are divorces on a statewide basis.

“I don’t know if anyone has ever sat down and thought about it,” he said.

Posted by Marcia Oddi on Sunday, September 10, 2006
Posted to Indiana Courts | Indiana Government

Courts - "She lost temper on state bench, but now lands new role"

The Boston Globe reports today:

Former Massachusetts Superior Court judge Maria Lopez has a message for her detractors -- especially the local politicians and attorneys who criticized her outspoken behavior on the bench and the sentence of parole she handed down to Charles ``Ebony" Horton for kidnapping and assaulting a child in 2000. Thank you.

If there had been no public outcry over Lopez barking at prosecutors, there is a good chance that the judge would have missed the opportunity to become what she calls ``the poster child for the post-menopausal woman" as the star of ``Judge Maria Lopez," a nationally syndicated daytime court show that debuts Monday on WSBK-TV (Channel 38). * * *

The infamous clip of Lopez yelling at Suffolk County prosecutor David Deakin, saying ``You may sit down. You may sit down now or I'll get a court officer to make you sit down!" -- the clip that aired endlessly on local newscasts in 2000 -- was used to help sell the show in pitch meetings to TV executives last year. * * *

Lopez, 53, was not looking for a career as a TV judge. Her transformation began in 2000, when she ordered probation for a man who had sexually assaulted an 11-year-old boy. The outcry that followed led to a hearing before the state Commission on Judicial Conduct, where a hearing officer ruled that she had lied under oath and abused her office. She was ordered to serve a six-month suspension and apologize. Instead she resigned her judgeship.

``I thought I was misunderstood and mischaracterized," she says. ``There were a lot of agendas at play, none of which captured what I had been thinking about the case and who I am."

Posted by Marcia Oddi on Sunday, September 10, 2006
Posted to Courts in general

Saturday, September 09, 2006

Ind. Gov't. - More on: Limited access to Statehouse and adjoining buildings underway

Some reflections on Niki Kelly's story Thursday on security meaures to be instituted in the Statehouse and adjoining office buildings. This part especially caused me to recall a related story:

In addition, some people entering the building are specifically exempted from the law against carrying firearms in the Statehouse, including various law enforcement officials as well as legislators and members of the judiciary.

A number of lawmakers have permits to carry guns and sometimes have them on the floor during debate, according to a 2003 Journal Gazette story.

The related story story appeared in the Washington Post earlier this year. A quote:

RICHMOND, Jan. 26 -- Del. John S. "Jack" Reid had gone through this morning routine dozens of times. He'd reach into his pocket, pull out his small semiautomatic .380 handgun, release the clip and store the weapon safely in the desk drawer of his office on the seventh floor of the Virginia General Assembly Building.

But something went wrong Thursday. Reid's pistol, which he said he carries for protection, fired as he popped the clip from the handle, sending a single bullet into the cushion of a bulletproof vest that was hanging from the back of his closed office door.

No one was injured, although Reid said he suffered a cut on his hand from the friction of the gun's slide snapping back.

A Virgina blogger asked the obvious question: "What kind of xxxxxxx brings a loaded gun and body armor to the General Assembly?"

Another noted: "The only people who are allowed to enter the General Assembly building without walking through the metal detector ... are the lawmakers and their official staff. So does Reid expect an assault from one of his Democratic colleagues?"

Posted by Marcia Oddi on Saturday, September 09, 2006
Posted to Indiana Government

Ind. Decisions - Indiana Supreme Court denies billboard appeal

Among the cases denied transfer by the Indiana Supreme Court on Friday were:

Hoosier Outdoor Advertising Corp. v. Monroe Co., Indiana, Monroe Co. Bd. of Zoning Appeals, RBL Management Inc. (See 3/21/06 Court of Appeals opinion by Judge Barnes)

Lucas Outdoor Advertising, LLC v. City of Crawfordsville, Indiana Board of Zoning Appeals (See 1/18/06 Court of Appeals opinion by Judge Baker)

The Bloomington Herald-Times (no free access) reports today:

The Indiana Supreme Court will not hear the billboard dispute between RBL and Hoosier Outdoor Advertising.

The court’s decision, announced Thursday, probably means RBL’s signs along Business Ind. 37 north of town will have to be taken down.

"Yeah," said RBL owner Bob Laughlin. "I think that’s probably going to be the end of it."

In April, RBL had asked the court to hear an appeal of the state appellate court’s decision that the billboard permits belonged to Hoosier.

Hoosier Outdoor had leased property along North Business Ind. 37 for billboards from 1989 until 2004. In 2004, Hoosier tried to move the signs, but the permits were denied and the signs were removed.

During the same time frame, RBL asked for and received sign permits for 80 acres it purchased along North Business Ind. 37 in January 2004.

Hoosier appealed the county’s decision to grant permits to RBL and its denial of Hoosier’s request to move its signs. In December 2004, the Monroe County Board of Zoning Appeals gave the billboard rights to Hoosier.

RBL sued the BZA, asking for the decision to be reversed. In July 2005, Monroe Circuit Judge E. Michael Hoff ruled that the permits be granted to RBL.

The case then went to the appellate court, which in March 2006 reversed Hoff’s decision and granted the permits back to Hoosier.

While the case was making its way through the courts, Hoff allowed both companies to erect billboards until a decision was made.

Posted by Marcia Oddi on Saturday, September 09, 2006
Posted to Ind. Sup.Ct. Decisions

Courts - More on: "Exacting Easterbrook to Be Chief of 7th Circuit"

Following up on this ILB posting from August 29th, here is another article on Judge Easterbrook. This one is from the spring issue of The Circuit Rider, the journal of the 7th Circuit Bar Association. The article, titled "A Potrait of the Next Chief," appears beginning on page 5 of the PDF document.

Posted by Marcia Oddi on Saturday, September 09, 2006
Posted to Courts in general | Ind. (7th Cir.) Decisions

Ind. Courts - Financing Allen County justice system

The Fort Wayne Journal Gazette has an editorial today that begins:

It has been devilishly difficult to cobble together enough money each year to sustain Allen County’s vast, complex justice system, but the solution that several county officials have lighted upon won’t do anything to make it easier.

Led by Commissioner Nelson Peters, the officials plan to ask the Indiana General Assembly to divide county property tax levies into one for the justice system – including the Allen County Jail, both the civil and criminal functions of the prosecutor’s office, sheriff’s department and the Juvenile Justice Center – and one for other county government functions. Tax revenues would be divided proportionately among the funds.

Peters argues that a separate judicial levy would allow the commissioners and the Allen County Council to keep a better reckoning of the money spent, make it easier for the public to figure out how the money is spent – and by extension make judges more accountable for the way the justice system spends money.

Generally, steps to better inform the public and their elected officials regarding how tax dollars are spent are worthy of the effort. Seeking a separate tax levy, however, will do little to inform constituents, could be impossibly complex, prove a waste of time for lawmakers and others, and create needless acrimony between judges and elected officials.

Members of the County Council and some county commissioners have long expressed frustration about the high cost of financing local courts, the prosecutor’s office, the jail and juvenile detention center. Taken together, they have argued, the costs of criminal justice absorb an inordinate amount of taxpayer money and are much more difficult to control.

But given the enormousness of the criminal justice system, a separate tax levy would do nothing to tell residents whom to hold accountable. Judges? The sheriff? The legislature for passing more restrictive laws?

Judges rightly question how they would be expected to control costs because they have no control over the number of people using the system. When suspects are accused of a crime, they can’t be denied access to the courts and corrections systems because the justice system is running over budget.

Posted by Marcia Oddi on Saturday, September 09, 2006
Posted to Indiana Courts

Friday, September 08, 2006

Ind. Courts - Judge Jane Magnus-Stinson to replace Judge V. Sue Shields as U.S. District Court Magistrate [Updated]

So reports The Indiana Lawyer this afternoon:

As a Superior Court judge, Judge Magnus-Stinson presides over murder and Class A, B, and C felony cases. Since 2005, she has held the elected position of associate presiding judge of the Executive Committee of the Marion Superior Court. Prior to her judicial appointment in Marion County, Judge Magnus-Stinson was counsel to Gov. Evan Bayh from 1991 to 1994. * * *

Magistrate judges are appointed by the judges of the United States District Court for a period of eight years and are eligible for reappointment, according to a press release from the United States District Court, Southern District of Indiana.

[Updated 9/9/06] This from a brief item in today's Indianapolis Star:
Magnus-Stinson will undergo federal tax and criminal background checks before joining the federal bench.

The Wisconsin native, a graduate of Butler University and Indiana University School of Law, is a member of the Superior Court's executive committee. She was chief counsel to then-Gov. Evan Bayh, a Democrat, from 1991-94.

Posted by Marcia Oddi on Friday, September 08, 2006
Posted to Indiana Courts

Law - "Bloggers Among Greatest Challenges Facing State [of Kentucky] Judiciary"

That is the opinion of a retiring member of the Kentucky Supreme Court, as reported this afternoon by Diana L. Skaggs, of the excellent Kentucky blog, the "Divorce Law Journal- Divorce and Family Law Info For Professionals in Kentucky and Beyond." Here is a quote from Kentucky retiring Justice Martin E. Johnstone:

There are many [challenges], but perhaps the greatest challenge to Kentucky's judiciary are the attacks on its integrity and independence, and the blind labeling by pundits, bloggers, and other so-called court-watchers of judges being "activists. ...

Recently bloggers have made the judiciary a favorite target with accusations and allegations that are usually without any basis in fact, yet leave the member of the judiciary unable to counter. This barrage of baseless criticism continues a deterioration of the public's opinion about the judiciary and the bar that endangers the constitutional bedrock of our republic. I have suggested over the years that local bar associations and individual lawyers have the ability to help by putting groups together that could respond to these attacks on the judiciary. I hope to see, and be part of, such efforts in the future.

Diana Skaggs writes:
I would suggest that he start a blog as part of that effort! We know to whom his criticism is directed, but most of the dozen or so blawgers in Kentucky, and certainly all listed on this site, are responsible and restrained. Blogs can be an asset to the judicial system, as the Indiana judiciary recognized by its award just this week to the Indiana Law Blog.

Posted by Marcia Oddi on Friday, September 08, 2006
Posted to General Law Related

Ind. Decisions - Transfer list for week ending September 8, 2006

Here is the Indiana Supreme Court's transfer list for the week ending September 8, 2006.

Over two and a half years of Transfer Lists: For other weekly transfer lists (going back to Feb. 2, 2004), check "Indiana Transfer Lists" under "Categories" below, or in the right column.

NOTE: THE ILB is planning to construct a dynamic Table of Cases for which the Supreme Court has granted transfer and thus are pending dispostion.

Posted by Marcia Oddi on Friday, September 08, 2006
Posted to Indiana Transfer Lists

Ind. Decisions - List of Court of Appeals NFP opinions issued for week ending September 8, 2006

Here is the Indiana Clerk of the Court's list of the Disposition of Cases by Unpublished Memorandum Decision [the Not for Publication (NFP) opinions list] issued by the Court of Appeals for the week ending September 8, 2006.

Posted by Marcia Oddi on Friday, September 08, 2006
Posted to NFP Lists

Ind. Decisions - 7th Circuit decides one Indiana case today

In Demetrius G. Jackson v. Unitied States (ND Ind., Allen Sharp, Judge), a 9-page opinion, Judge Bauer concludes:

Finally, we take a moment to address Jackson’s claim that his right to challenge his enhanced sentence is “manifest.” App. Br. at 14. While it is true that our jurisprudence is replete with general reasons why a defendant may challenge his sentence, we have never held the right to such challenges is without limit, as his use of the word “manifest” seems to imply. Indeed, Jackson’s argument ignores the strictures placed on our jurisdiction by the Antiterrorism and Effective Death Penalty Act of 1996, under which§ 2255 was most recently amended. Moreover, each case upon which he relies to support this claim to a “manifest” right address appeals either from a denial of a timely filed initial § 2255 motion, or directly following the imposition of a sentence. See App. Br. at 14-15.

For the foregoing reasons, the decision of the district court is AFFIRMED.

Posted by Marcia Oddi on Friday, September 08, 2006
Posted to Ind. (7th Cir.) Decisions

Ind. Decisions - Anglemyer briefs now available

In the ILB entry earlier this morning, I noted that it would be good to be able to review the briefs along with listening to the oral arguments in yesterday's sentencing law case. And now here they are: the transfer petition, the state's response, and the reply.

Posted by Marcia Oddi on Friday, September 08, 2006
Posted to Ind. Sup.Ct. Decisions

Ind. Decisions - More on 7th Circuit argument in legislative prayer case

Odd. The 7th Circuit has now posted the oral arguments for today, September 8th. And it had already posted those for Wednesday, September 6th. But none for yesterday, September 7th, and so no MP3 for Hindricks v. Bosma. Does anyone have an explanation?

[More] Now I see it (or now it has been posted, I don't know which) - click "past week" and it is the 4th one on the list.

Or use this link (thanks to Michael Ausbrook).

Posted by Marcia Oddi on Friday, September 08, 2006
Posted to Ind. (7th Cir.) Decisions

Ind. Decisions - Court of Appeals issues 4 today (and 10 NFP)

For publication opinions today (4):

In Cash in a Flash v. Henry McCullough, a 10-page opinion, Judge Baker writes:

Appellant-plaintiff Cash in a Flash, Inc. (CIF), appeals from the trial court’s judgment denying CIF statutory attorney fees and treble damages following appellant-defendant Henry McCullough’s failure to repay a small, or “payday,” loan in a timely fashion.1 Finding that CIF failed to prove that McCullough acted fraudulently, we affirm the judgment of the trial court. * * *

Merely alleging that a borrower passed a bad check without proving that he executed the check “knowing” that he would not place sufficient funds in his account to honor the check is insufficient to prove fraud. See McCullough, 841 N.E.2d at 642 (holding that lender failed to establish fraud where it failed to prove that borrower executed check knowing that it was going to stop payment). Here, there is no evidence in the record supporting a conclusion that McCullough knew, at the time he executed the check, that he would not place sufficient funds in his account to pay for the loan at the time it came due.6 Indeed, the only evidence in the record establishes that he intended and hoped to be able to repay the loan but was unable to do so because of mounting medical bills resulting from his wife’s terminal cancer. Moreover, McCullough’s attempts to arrange a payment plan and the two payments that he made to CIF reflect his good faith and tend to refute any suggestion of fraudulent intent. Thus, the trial court properly concluded that CIF failed to prove that McCullough committed fraud on a financial institution and properly refused to award CIF statutory attorney fees and treble damages. The judgment of the trial court is affirmed.

[Note: The opinion includes an overview of Indiana payday loan practice and law.]

In Ken Hecht, et al. v. State of Indiana, Indiana Bureau of Motor Vehicles, et al., a 12-page opinion, Judge Barnes writes:

Ken Hecht brings this interlocutory appeal of the trial court’s order transferring his class action against Joel Silverman, in his capacity as the Commissioner of the Indiana Bureau of Motor Vehicles, and the Indiana Bureau of Motor Vehicles (collectively, the “BMV”) to the Indiana Tax Court. We reverse and remand with instructions.

Issue. Whether Hecht was required to exhaust administrative remedies under Indiana Code section 6-8.1-9-1.2. * * *

Hecht asserts that neither the Tax Court nor the Department of Revenue has jurisdiction over his case, and therefore, the trial court erred in transferring venue to the Tax Court. * * *

Here, there has been no final determination made by the Department of Revenue. Hecht, however, argues that he could not obtain a final determination from the Department of Revenue, and therefore, was not required to exhaust any administrative remedy prior to filing his class action. We disagree. * * *

Thus, until Hecht files a claim for refund with the Department of Revenue, “the judiciary of this state lacks subject matter jurisdiction over the cause of action.” Zayas, 676 N.E.2d at 365. Accordingly, we hereby reverse and remand with instructions to the trial court to dismiss Hecht’s case.

Kenneth Holeton v. State of Indiana

Preston D. Stringer v. State of Indiana

NFP civil opinions today (2):

Patrick Bruggeman v. James Simon, et al. (NFP)

Kevin Fry v. Rex Hagen, et al (NFP)

NFP criminal opinions today (10) (link to cases):

Daniel K. Kelly v. State of Indiana (NFP)

Anthony Bush v. State of Indiana (NFP)

Leland Wall v. State of Indiana (NFP)

Jerry F. Bowling v. State of Indiana (NFP)

Chad E. Strong v. State of Indiana (NFP) - "The Indiana Court of Appeals has affirmed a Goshen man's conviction for a notorious child-abuse murder in 2004." South Bend Tribune story, 9/9/06

Ronnie Drane v. State of Indiana (NFP)

Michael White v. State of Indiana (NFP)

Haskell E. Moore v. State of Indiana (NFP)

Aaron K. Richardson v. State of Indiana (NFP)

Timothy K. Bott v. State of Indiana (NFP)

Posted by Marcia Oddi on Friday, September 08, 2006
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Supreme Court hears sentencing law arguments

Yesterday's oral argments before the Supreme Court (see background in the ILB entry from yesterday) are the subject of a good story today by Niki Kelly in the Fort Wayne Journal Gazette:

Indiana’s Supreme Court justices wrestled Thursday with the state’s new sentencing plan, which was put in place to avoid a violation of the U.S. Constitution but could lead to inconsistent prison terms for Hoosiers.

Attorneys argued before the court in the case of Alexander Anglemyer, a 20-year-old Kosciusko County man convicted of robbing and beating a pizza delivery man in May 2005.

He pleaded guilty in the case according to an agreement that called for a maximum 16-year sentence. The judge in the case gave him 10 years for the robbery and 6 yearsfor the battery to be served consecutively.

Anglemyer appealed the sentence, saying the judge did not consider mitigating evidence.

The case represents the first time the Indiana Supreme Court gets to weigh in on Indiana’s new sentencing laws since they were changed by the legislature in 2005.

Previously in Indiana, judges sentenced criminals by a guideline that provided a presumptive sentence but allowed the judge to add or subtract specific amounts of time for mitigating or aggravating circumstances.

For instance, someone convicted of robbery faced a presumptive sentence of 10 years to which 10 years could be added and four years could be subtracted.

But the U.S. Supreme Court – followed by the Indiana Supreme Court – ruled that any factors used to enhance a sentence have to be proven to a jury. That means judges can’t use additional information to add to the presumptive sentence without a separate jury proceeding.

To meet the new rules, lawmakers in 2005 passed Senate Bill 96, which removed presumptive sentences from Indiana’s system – leaving just the range of years for judges to choose from.

According to the law, a judge can impose any sentence “regardless of the presence or absence of aggravating circumstances or mitigating circumstances.”

The law also established the old presumptive sentence as a non-binding advisory guideline but gave far more discretion to the judge than in the old system.

So the question before the court Thursday was whether judges are bound to provide any sentencing statement explaining the reasons behind a sentence, as three decades of court precedent has required.

Anglemyer’s attorney, Joel Schumm, said a sentencing statement is necessary for the public to understand the system and for appellate courts to be able to review whether a sentence is inappropriate.

He noted that he didn’t believe the Indiana General Assembly meant to make such a dramatic change.

But Deputy Attorney General Ellen Meilaender argued the legislature knew exactly what it was doing, which was to fix a system that violated Hoosiers’ federal Sixth Amendment rights.

She said under the new system a judge “may” consider aggravating and mitigating circumstances but also can impose the minimum or maximum sentence without either.

Chief Justice Randall T. Shepard commended her for the courage of conviction but said it could hypothetically result in a judge giving one person with no previous criminal history the maximum sentence for a crime while giving a person with an extensive criminal record the minimum for the same crime.

“That’s not the kind of court system Hoosiers have confidence in,” he said.

Watch the oral argument here.

It would be great to post the briefs in this case -- please contact me if you can help.

Posted by Marcia Oddi on Friday, September 08, 2006
Posted to Ind. Sup.Ct. Decisions

Ind. Courts - Supreme Court reprimands Roger Finderson, an attorney with the Lebamoff Law Office in Fort Wayne

The Fort Wayne Journal Gazette reports today:

The Indiana Supreme Court on Wednesday released a public reprimand of Roger Finderson, an attorney with the Lebamoff Law Office in Fort Wayne.

The facts of the complaint against Finderson are that a woman hired him in 2000 to represent her in bringing suit against another woman after a car accident. Then in 2002 the second woman hired Finderson to represent her in another car accident.

Finderson said he didn’t discover the conflict between the two women until a month later, at which point he dropped his first client, who eventually lost her case. Meanwhile, Finderson’s representation of the second woman resulted in a favorable settlement.

Here is the Court's order.

Posted by Marcia Oddi on Friday, September 08, 2006
Posted to Indiana Courts

Ind. Law - Sex offender law impacts examined

Bryan Corbin of the Evansville Courier& Press has a report today that begins:

State lawmakers are puzzling over situations such as the one in Evansville last week, where a man who pleaded guilty 10 years ago to a sex offense when he was a teen now has to move out of his house.

Lawmakers on Thursday looked at unforeseen situations created by restricting where registered sex offenders can reside. Certain offenders long have been prohibited from living within 1,000 feet of schools, parks or child-care centers. But a law the Legislature passed this year that took effect July 1 apparently makes that ban retroactive.

And that ban makes no distinction between pedophiles and what one lawmaker called "amorous teenagers."

Because he was on the state's online registry for his 1996 guilty plea, Bryant Critchfield has told authorities that he will move out of his home near Tekoppel Elementary School, at least until his 10-year registration period expires in November.

Critchfield, now 31, pleaded guilty in a case involving alleged sexual contact with a 14-year-old girl when he was 19. He now denies the allegation, but said he pleaded guilty to the child-molesting charge to stay out of jail.

A Tekoppel parent, Brenda Wible, discovered Critchfield's name on the online registry. She complained to authorities, who requested Critchfield move because his address is within 1,000 feet of the school. Remaining within that radius would now be a Class D felony for registered offenders.

Whether a retroactive law can be constitutional was a question raised by Steve Johnson, executive director of the Indiana Prosecuting Attorneys Council.

"If you're a convicted sex offender ... the issue is, do you have to move effective July 1," Johnson asked lawmakers on the Sentencing Policy Study Committee. "If you have been living across from a school for 35 years, effective July 1 (2006) it's now against the law for you to reside there. Do you have to move? Does it apply retroactively?"

[More] A reader has sent me this news item from News25/WEHT in Evansville:
EVANSVILLE - A NEWS 25 investigation prompts State Lawmakers to look at changing a sex offender law.

NEWS 25 first told you about the case of Bryant Critchfield. He was convicted ten years ago of child-molestation and moved into a home right across from Tekoppel School.

A new sex offender law passed this year meant Critchfield had to move away from his home to a home that was more than 1-thousand feet away from the school.

He has to follow those guidelines until he comes off the sex offender registry in November.

The Evansville Courier and Press reports that Indiana Lawmakers heard about the case and are now looking into possible ways to distinguish between pedophiles and people who may have been convicted for a one-time less serious offense.

Posted by Marcia Oddi on Friday, September 08, 2006
Posted to Indiana Law

Ind. Decisions - Yesterday's arguments before the 7th Circuit in the legislative prayer case

Most of the stories the ILB has read yesterday and this morning about the oral arguments yesterday before the 7th Circuit in Hindrichs v. Bosma do not really cover the oral arguments, but simply rehash older reports.

An exception is this story this morning by Theodore Kim of the Indianapolis Star, dateline Chicago. Some quotes:

CHICAGO -- The federal appeals court panel hearing the Indiana House speaker's challenge to a ban on sectarian prayer in the legislature expressed reluctance to set a new precedent.

Judge Michael S. Kanne said Thursday that upholding the ban could "change the way that Congress operates," because federal lawmakers begin their sessions with prayers.

Kanne, along with presiding Judge Kenneth F. Ripple and Judge Diane P. Wood of the 7th U.S. Circuit Court of Appeals are expected to decide in the next several months whether a lower court ruling that prohibits endorsing any particular religion during legislative prayer will stand.

Steffen Johnson, a lawyer for Speaker Brian C. Bosma, R-Indianapolis, told the three-judge panel the ban amounts to a restriction on the First Amendment right to free speech. * * *

But Ken Falk, legal director for the American Civil Liberties Union of Indiana, told the judges the U.S. Supreme Court has "been quite clear that in a legislative session, religious speech, prayers, must be nonsectarian."

Both sides faced pointed questioning from the judicial panel.

In one exchange, Wood rebuffed the argument that legislative prayers should be considered "personal speech." She suggested that "proselytizing in the Indiana House in the speaker's box" is not the same as speaking while "standing on (one's) own front yard."

In that way, she suggested legislative prayers that blatantly push one religion over another are inappropriate.

Johnson, Bosma's attorney, disagreed, saying legislators speaking before their colleagues on legislative matters "realize they are speaking in their own voice. They are not necessarily speaking on behalf of the government." * * *

Thursday's arguments, before a packed courtroom on the 27th floor of the Dirksen Federal Building, marked the latest turn in a controversy that erupted last year. That's when civil liberties activists in Indiana sued Bosma to halt the legislature's practice of observing overtly Christian prayers before its daily sessions. * * *

So far, Indiana taxpayers, who are footing the bill for Bosma's appeal, have paid $67,000. Bosma said Thursday that legal bills are already "approaching $100,000.

Steve Walsh of the Gary Post-Tribune also has a story datelined Chicago. Some quotes:
The 7th Circuit covers Indiana, Illinois and Wisconsin. Two of the three judges hearing the case are originally from Indiana — Senior Judge Michael Kanne is from Lafayette and Presiding Judge Kenneth Ripple is from South Bend.

Judge Diane Wood, from Chicago, said ministers may have run afoul of separation of church and state when they referred to lawmakers as they would a congregation, using “we” as they invoked calls to God.

One problem with the coverage may be that the Court's recording of the oral arguments (i.e. the MP3) has not yet been posted on the 7th Circuit site. Watch for it here. (Yesterday at this time the recordings from the previous day already had been posted.)

Posted by Marcia Oddi on Friday, September 08, 2006
Posted to Ind. (7th Cir.) Decisions

Thursday, September 07, 2006

Ind. Courts - Whitley County receives grant for courthouse security

The Columbia Couty Post & Mail reports in a story today by T.J. Hemlinger:

Whitley County has received a $50,000 grant to enhance its courthouse security from the state’s Division of State Court Administration, Cathy Broxon-Ball told the county commissioners Tuesday afternoon.

Broxon-Ball, head of the county’s emergency management, said the money would be used to purchase new digital cameras used to survey the hallways and entrances to the courthouse and the county government center and to change the alarm system so that alarms would be routed to the dispatch center in the basement of the jail.

The money also would go to buy a new x-ray machine for security use in the courthouse entrance. * * *

Commissioners Tom Rethlake, Jim Pettigrew and Doug Eber voted to spend approximately $10,000 for new furniture for the circuit courtroom. The bench, the jury box, the lectern and the tables are to be replaced at a cost of $19,385. About half the money will come from the court’s budget, with assistance from the county prosecutor’s budget, Judge James Heuer told the commissioners.

Posted by Marcia Oddi on Thursday, September 07, 2006
Posted to Indiana Courts

Courts - Should We Call Former Judges “Judge”?

"Should We Call Former Judges 'Judge'?" is the title to an entry in the Wall Street Journal Blog this afternnon. The entry points to an investigative report ordered by Merck’s board. The report begins: "Report of The Honorable John S. Martin, Jr. to the Special Committee of the Board of Directors of Merck & Co., Inc." The WSJB remarks:

That’s because The Honorable John S. Martin, Jr., is a former federal judge who stepped down from the bench in 2003 to practice law at Debevoise. In its opening page the report states, “Judge Martin and a team of lawyers and paralegals from Debevoise spent over 53,000 hours conducting an investigation over a period of approximately 20 months.”

Now we know it’s common practice to continue to refer to judges as “judge” long after they leave the bench. The Law Blog took this issue up back in May the Law Blog after calling the office of white-collar defense lawyer Herbert Stern and his secretary answered “Judge Stern’s office,” reminding us that he was a federal judge from 1974 through 1987. We also recall that at Kramer Levin Naftalis & Frankel — where the Law Blog worked for a couple of years — everyone referred to the late Marvin Frankel, a former federal judge in Manhattan, as “Judge Frankel.” And the Justice Department told us that U.S. Attorney General Alberto Gonzalez — a former Texas Supreme Court judge — prefers to be called “Judge” than “General.”

In light of the Martin Report, we raise the question again. Is the tradition of calling former judges “judge” long after they’ve left the bench a respectful way to acknowledge their achievements? Or is it unbecoming for Merck and its lawyers to trade off the fact that John Martin once wore a robe? What do you think?

The 4th and 5th commenters to the WSJB entry, in the ILB's opinion, make some interesting points.

Posted by Marcia Oddi on Thursday, September 07, 2006
Posted to Courts in general

Ind. Courts - Dueling dinners at the ISBA Annual Meeting

A dinner honoring Honorable V. Sue Shields, United States Magistrate Judge, United States District Court, Indianapolis is set for Friday, October 6, 2006. Reception at 6:00, dinner at 7:00. Marriott Downtown Indianapolis Hotel, Marriott Ballroom 1-5, second floor, $60 per person. To register.

The Indiana Chief Justice Randall T. Shepard award dinner is set for Friday, October 6, 2006, to celebrate pro bono spirit. Reception at 6:00, dinner at 7:00. Marriott Downtown Indianapolis Hotel, Indiana Ballroom E, $50 per person. To register.

Posted by Marcia Oddi on Thursday, September 07, 2006
Posted to Indiana Courts

Ind. Courts - Senior Judge Wesley W. Ratliff, Jr. dies

The ILB has just learned that Senior Judge Wesley W. Ratliff, Jr. has died. Here is the Indianapolis Star obituary:

Wesley W. Ratliff, Jr. died August 30 at his residence in Bloomington.

He was born September 21, 1925 in Knightstown, Indiana and graduated from Knightstown High School. He served in the Pacific during WWII from 1943-1945 with the US Navy. He attended Ball State University and graduated from Valparaiso University School of Law in 1950.

He began practicing law in 1950 with his parents, Wesley W. Ratliff, Sr. and Ruth Ratliff, who were both attorneys.

He was elected judge of the Henry County Circuit Court in 1962, succeeding his father who died in 1961. He served there for 17 years before being named to the Indiana Court of Appeals in 1980.

He served as Chief Judge of the court from 1987 until his retirement in 1992. He continued to work as a Senior Judge with the Indiana Court of Appeals until the time of his death.

He was married in 1947 to Mildred Brown. He continued to live in Knightstown until 1987 when he moved to Bloomington. In Knightstown he was an active member of Bethel Presbyterian Church, Kiwanis, and the Henry County Bar Association. He was a member of First Presbyterian Church in Bloomington and Central Lions Club.

He is survived by his wife and three children; Marilyn Ratliff (Tom Crum) of Evansville, Kathy Forbes (David) of Valparaiso, and Wesley, III (Mary Burch) of Bloomington. A sister Chris Mahlum (Don) of Havre, Montana, and 6 grandchildren; Sam Crum (Stef), Katie Bettencourt (AJ), Emily Forbes, Sarabeth Pollom (John), Amy Ratliff, and Michael Ratliff.

Funeral services will be at 10:00 a.m. Saturday, September 2nd at First Presbyterian Church in Bloomington, with graveside services in Glen Cove Cemetery in Knightstown at 2:00 p.m. Saturday afternoon.

Memorial contributions may be made to the Wesley W Ratliff Scholarship Fund at Valparaiso University School of Law or to First Presbyterian Church in Bloomington.

Posted by Marcia Oddi on Thursday, September 07, 2006
Posted to Indiana Courts

Ind. Decisions - Court of Appeals issues 1 today (and 4 NFP)

For publication opinions today (1):

In Christopher Creekmore v. State of Indiana, a 14-page opinion, Judge Friedlander writes:

Christopher Creekmore pled guilty to thirteen counts of Check Deception,1 all class A misdemeanors.2 Creekmore now appeals, and presents the following restated issues: 1. Did the trial court abuse its discretion when it failed to identify mitigating circumstances when imposing maximum sentences? 2. Did the trial court abuse its discretion when it imposed consecutive sentences? 3. Did the trial court abuse its discretion when it imposed prosecutor’s fees? 4. Is his sentence appropriate? 5. Did he knowingly, voluntarily, and intelligently waive his right to counsel? We affirm in part and reverse in part and remand. * * *

In the instant case, we conclude Creekmore’s guilty pleas were entitled to significant mitigating weight. He neither entered his pleas of guilty pursuant to an agreement from which he derived any benefit nor expressed an expectation that any benefit would be extended to him. The record is unclear as to whether the trial court considered as mitigating Creekmore’s guilty pleas, and, if it did so consider, how much weight it afforded the pleas of guilty, if any. Because the trial court abused its discretion when it did not consider as mitigating Creekmore’s pleas of guilty, we must remand with respect to the consecutive sentences imposed upon the three crimes Creekmore committed prior to April 25, 2005. * * *

Unlike the trial court in Mathis, the trial court in the instant case imposed fees that were not authorized by statute. See I.C. § 33-37-4-1. The trial court, therefore, necessarily abused its discretion when it imposed fees not authorized by statute. We have not discovered, and the State has not provided, any authority supportive of the imposition of prosecutor’s collection fees under the circumstances of the instant case. In light of the foregoing, we reverse the trial court’s order with respect to the prosecutor’s collection fees as to the five appealed convictions.

NFP civil opinions today (1):

Anna Greene v. R.R. Donnelley & Sons Company (NFP) - workers' compensation - affirmed.

NFP criminal opinions today (3) (link to cases):

Andrew Watts v. State of Indiana (NFP)

Mark G. McQueary v. State of Indiana (NFP)

Jeffrey Reed v. State of Indiana (NFP) - "Sentence cut by 5 years for Warsaw drunk driver" is the headline to this brief item in the Fort Wayne Journal Gazette.

Posted by Marcia Oddi on Thursday, September 07, 2006
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Supreme Court acts in Hammon case

When I read the Indiana Supreme Court's opinion yesterday in Howard v. State (see ILB entries here and here), which involved the U.S. Supreme Court ruling in Crawford v. Washington, I wondered when the Court was going to act on its other Crawford case, Hammon v. State, which was overturned by the U.S. Supreme Court earlier this year. See the ILB's "Ind. Decisions - U.S Supreme Court decides Indiana 'confrontation clause' case today" from June 19, 2006.

Today, in Hammon v. State (on remand from the Supreme Court of the United States), a 2-page opinion, Justice Boehm writes:

The Supreme Court of the United States has remanded this case to us for further disposition. The final sentence of the majority opinion of that Court states:
We have determined that, absent a determination of forfeiture by wrongdoing, the Sixth Amendment operates to exclude Amy Hammon’s affidavit. The Indiana courts may (if they are asked) determine on remand whether such a claim of forfeiture is properly raised and, if so, whether it is meritorious.
Davis, 126 S. Ct. at 2280.

We held that Amy’s affidavit was barred by the Sixth Amendment but that the testimony of the officers who responded to a report of domestic disturbance at the Hammon home was admissible, even though it recounted statements made to the officers by Amy Hammon. We believe that Davis compels exclusion of an officer’s testimony as well to the extent the officer testifies to statements made to the officer at the Hammon home by Amy or any other person who did not testify at trial.

Because this case is reversed for admission of evidence in violation of the Sixth Amendment, it may be retried. [cites omitted] If the case is retried, it will be a matter for the trial court to resolve in the first instance any issue that may arise as to whether evidence otherwise excluded by the Sixth Amendment may nevertheless be admitted under the doctrine of forfeiture explained by the Supreme Court at 126 S. Ct. at 2280.

The judgment of the trial court is reversed. This case is remanded to the trial court.

Posted by Marcia Oddi on Thursday, September 07, 2006
Posted to Ind. Sup.Ct. Decisions

Ind. Decisions - More on: 7th Circuit decides Michigan City ban on park use by convicted child molester

Richard D. Walton of the Indianapolis Star has a story today on Tuesday's decision from the 7th Circuit in the case of Robert Brown v. Michigan City - see Tuesday's ILB entry here.

Walton's story examines the new Indianapolis park ban in light of the 7th Circuit ruling in the Michigan City case. Some quotes:

The Indianapolis ordinance, passed in May, prohibits sex offenders from coming within 1,000 feet of parks, playgrounds or pools when children are present. The ACLU sued in that case as well, contending that the city's configuration of streets and highways makes it impossible to traverse Indianapolis without violating the law.

The lawsuit, filed in June, was brought on behalf of six convicted sex offenders.

A request for a preliminary injunction to block the ordinance is pending before a federal judge in Indianapolis.

Ken Falk, the ACLU's legal director, said Wednesday that because the Indianapolis ordinance is broader than the Michigan City prohibition -- which affects only Brown -- he believes the 7th Circuit ruling should have no bearing on the local case.

But Robert Keen, attorney for Michigan City, said he thinks the decision hurts the ACLU's Indianapolis case because it found that people have no fundamental right to access to public parks.

As a result of the ruling, he said, cities such as Indianapolis that exclude all sex offenders from parks now need only prove they have "some rational basis" for believing child abusers as a class pose a risk.

Kobi Wright, the attorney for Indianapolis, welcomed the ruling as affirming what the city has asserted all along: "The city has the ability . . . to protect children from sex offenders in city-owned parks."

The appeals court's reasoning in the Brown case was similar to that of an earlier decision it made in a Lafayette, Ind., case. * * *

The Brown decision makes it even tougher for opponents of park bans because it was reached without proof that Brown intended to commit any crimes, said Jim Osborn, chief litigation counsel for the Indianapolis city attorney's office.

Plainfield also has banned sex offenders from parks and recreational areas. Its ordinance also is being challenged by the ACLU.

Here is a list of some earlier ILB entries involving sex offenders and parks.

Posted by Marcia Oddi on Thursday, September 07, 2006
Posted to Ind. (7th Cir.) Decisions

Ind. Courts - More interesting oral arguments today

In addition to the Court of Appeals cell tower case, and the 7th Circuit legislative prayer case, a reader writes to point out that the Indiana Supreme Court is hearing oral arguments this morning in the case of Alexander Anglemyer v. State. Here is the Court of Appeals opinion, now stayed.

Bloomington attorney Michael Ausbrook notes: "It's a transfer case involving the new post- Blakely sentencing statutes that permit judges to impose any sentence for good reason, bad reason, or no reason at all. * * * My blog post on it is here. The issue is really what sort of appellate review of sentences is left."

The argument is scheduled for 9:45 AM - 10:25 AM. It can be viewed online here.

Posted by Marcia Oddi on Thursday, September 07, 2006
Posted to Ind. Sup.Ct. Decisions

Ind. Gov't. - Cell towers in the news

As noted in this ILB entry yesterday, the Court of Appeals today is hearing oral arguments in St. Charles Tower, Inc. v. Bd. of Zoning Appeals of Evansville, a dispute regarding a 185-foot wireless telecommunication tower.

Here is a report from the Chesterton Tribune at the other end of the state, written by Paulene Poparad, that begins:

Its four-hour special meeting ended Tuesday with the town of Porter’s Board of Zoning Appeals unanimously postponing until the Sept. 20 meeting a decision on whether to allow a 499-foot FM radio transmission tower to be built.

The board said it wants more information about where the tower would fall if one or more of its three guyed anchor wires fails, and it needs more time for its attorney to prepare detailed findings of fact in the event the petition is denied.

Chicago Public Radio/WBEZ is asking that Aqua-Land Communications be granted a use variance to erect the tower at the southwest quadrant of Indiana 49 and U.S. 20 so CPR can boost the signal of Chesterton-based sister station WBEW and potentially increase its 89.5 FM listening audience five-fold to 2 million people in northwest Indiana.

A package of technology CPR is offering with the tower including free, three-year wireless Internet access for town residents, co-location capabilities for other providers who already have expressed interest, and upgraded communications for local emergency services all were hailed by proponents as a needed safety and economic-development tool that offsets minor tower disadvantages.

Because the heavily wooded 10.3 acres south of an access road linking the two highways is 80 percent wetlands and already has two approximately 200-foot-tall cellular towers on it, CPR attorney Richard Riley said the parcel is a perfect site for CPR’s needs. On the east side of Indiana 49 is the 421-foot Indiana State Police radio tower.

However, opponents said the tower would be an eyesore, its lights a distraction, that a live web camera mounted on it for emergency weather scans and tourism promotion would be an invasion of their privacy, and that the tower could fall on children playing in their own yards.

Said town planner Jim Mandon, “Guyed towers, probably all towers, have failed one time or another. Certainly if it fell directly toward U.S. 20 it’d be in the street.”

Posted by Marcia Oddi on Thursday, September 07, 2006
Posted to Indiana Government

Ind. Gov't. - Limited access to Statehouse and adjoining buildings underway

Niki Kelly has a lengthy report today in the Fort Wayne Journal Gazette titled "Statehouse tightening its security." Here are some quotes that caught my eye [emphasis added]:

INDIANAPOLIS – Visitors to the Indiana Statehouse and adjoining government buildings will have to go through metal detectors for the first time in state history under a recommendation approved Wednesday by the Indiana Counter-Terrorism and Security Council.

The Indiana State Police and Indiana Department of Administration will implement the plan via administrative rules in the coming months. * * *

Recently the state has implemented an ID card-access system for state employees that will be used heavily when public access to the buildings is reduced to two doors at the Statehouse and one door each at the north and south buildings.

At those doors, any member of the public wanting to enter would have to go through a magnetometer – or metal detector – to gain entry, according to the recommendation. X-ray machines would search bags.

Police could perform a pat-down search only if the person voluntarily agreed to it.

Dietz said the purpose of the searches is only to identify deadly weapons – including firearms, stun guns, biological diseases or viruses, grenades, bombs and other explosive devices – and not to look for drugs or other illegal paraphernalia.

He said the state would have to “take out a loan” to personally staff all entry points.

Only members of the public must go through the detectors as employees have IDs that will allow them access via card readers at other doors.

In addition, some people entering the building are specifically exempted from the law against carrying firearms in the Statehouse, including various law enforcement officials as well as legislators and members of the judiciary.

A number of lawmakers have permits to carry guns and sometimes have them on the floor during debate, according to a 2003 Journal Gazette story.

Renner had no explanation for the special treatment of legislative members except to say the details of the plan could be changed by the state police and the Department of Administration upon implementation.

Tunnel access between the buildings would also be shut off to the public, according to the recommendation. * * *

Several members asked whether the two public access doors for the Statehouse – the second-floor door along Capitol Avenue and the first-floor door along Senate Avenue – could adequately handle the buses of schoolchildren who sometimes visit or other large events such as rallies.

Dietz acknowledged there might be delays but said “we have to start somewhere.” Mobile equipment will open up additional public entry screening points if needed.

Posted by Marcia Oddi on Thursday, September 07, 2006
Posted to Indiana Government

Ind. Decisions - Evansville paper editorializes on school prayer case

The Evansville Courier& Press has this strong editorial today on the school prayer case:

A federal appeals court will hear arguments today on the question of whether legislators and clergymen can lead sectarian prayers in the Indiana House of Representatives.

A federal court judge has already told the Indiana House that it can't open its sessions from the speaker's podium with prayers that endorse any particular religion. Members and guests can lead prayers from there, but they must be nonsectarian.

And why would legislators want to cross the line?

Why, in a nation sensitive about the separation of church and state, would they willingly create the perception that the government is endorsing a specific religion?

Regardless of those concerns, however, Republican House Speaker Brian Bosma has decided to appeal the decision made last year by federal Judge David Hamilton to ban sectarian prayers. The U.S. 7th Circuit Court of Appeals in Chicago will hear arguments in the case today.

Bosma said that thus far it has cost approximately $67,000 in public funds to carry the lawsuit forward, but he is hoping for public donations to help defray the costs.

Without donations, that means that the Indiana House will have spent $67,000 in taxpayer funds on the weighty question of whether someone can step up to the Indiana House Speaker's podium, when the Legislature is in session, and lead the gathered representatives in a prayer that leans heavily to one religion.

It's baffling. Why should some ministers or legislators be allowed to proselytize for their religions from the leader's seat in the Indiana House of Representatives?

This is the official seat of state government, where we send our elected representatives to pass state budgets and laws.

Their responsibilities include issues such as education, health care, the environment, public safety and transportation, just to name a few. The members are there to discuss, to listen, to negotiate and to hammer out compromises on these and other issues. They are not there for a prayer meeting. It is a legislative work session.

That said, no member of the Legislature or visitor is prevented from praying to himself or herself, or in a group before, after and during the session. This applies as long as they are not disruptive. No one is denying members or guests of the Legislature their right to pray.

Of course, Hoosiers anywhere can pray as they wish. There are many who pray each week that they can stretch their paychecks from one Friday to the next.

That group, particularly, must really appreciate that House leadership is spending $67,000 of their hard-earned money for this ridiculous appeal.

The oral argument before the 7th Circuit in Hindricks v. Bosma takes place this morning. Later today, or tomorrow at the latest, you will be able to download it as an MP3 from this location on the 7th Circuit website.

Posted by Marcia Oddi on Thursday, September 07, 2006
Posted to Ind. (7th Cir.) Decisions

Ind. Decisions - More today on school expulsion decision and its implications

On August 17th the ILB had an entry on a 2-1 Court of Appeals decision in early July, Logansport School Corporation v. P.F., and its implications, quoting from the Indianapolis Star and the Monticello Herald Journal.

Today Krista J. Stockman of the Fort Wayne Journal Gazette reports:

School districts across Indiana are changing their policies on how school boards handle the appeals process from students who have been expelled.

An Indiana Court of Appeals ruling in July determined school boards cannot pick and choose which appeals to hear – a practice many school boards followed for years. A lawsuit against the Logansport Community School Corp. in which a student was denied a hearing before the school board prompted the new interpretation of the law.

The court determined that school boards only can decide to hear all appeals or no appeals but cannot decide on a case-by-case basis.

The East Allen County Schools board decided on Tuesday not to hear any future appeals. The board did come up with a compromise, however, in allowing a board member to be appointed to sit in on appeals with a district administrator.

Appeals will continue going through one of the assistant superintendents. Last school year, five appeals were heard by Andy Melin, assistant superintendent for secondary education and technology. None went to the board. * * *

The board voted 6-1 with board member Rick Allgeier voting against it. Allgeier said he was concerned about taking the board out of the process, and he didn’t like the process the board was going through to create the new procedure.

Fort Wayne Community Schools is also reviewing its policy, which allows appeals to the board only in certain circumstances, such as if there is new evidence or if the issues involved in the appeal raise significant questions about a board policy not previously resolved by the board.

When a student is expelled, the student and his or her parents can appeal to an administrator and then to the school board.

In the past four years, the FWCS board has heard six appeals out of the hundreds of students who were expelled.

FWCS spokeswoman Debbie Morgan said the district is reviewing its procedures to determine whether a change needs to be made.

EACS attorney Tim McCaulay said the changes the board made this week may be only temporary, if state officials take up the issue next year. “There’s a strong possibility the General Assembly may change the law,” he said.

Adam Van Osdol did a thorough analysis of the Logansport case in the 7/10/06 issue of of INdiana Education Insight. Some quotes (quoted with permission):
The key issue in In Re P.F., Bd. of Trustees of the Logansport Comm’ty School Corp. v. P.F., was whether the School Board was required to hear the student’s expulsion appeal.

Student P.F. allegedly scribbled a purported bomb threat on a table at school that was read by maintenance personnel and reported to the administration. After P.F. admitted he had written the phrase in question, the school recommended expulsion. the student then expressed his intention to appeal the decision to the School Board, which subsequently voted not to hear the case.

In September 2005, a Cass County Superior Court II judge ruled that the School Board was required by law to hear the appeal. But the next month, the School Board defied the court order (indeed, as the Court of Appeals wrote, the School Board “showed complete disrespect – and contempt – for the trial court and its order”) voting again not to conduct a hearing, which prompted the judge to order the district to vacate the expulsion and permit P.F. to make up his missed school work.

The Logansport School Board appealed the trial court’s conclusion that it was required to hear the expulsion case, arguing that Indiana statute grants school boards flexibility to vote on whether to hear appeals on a case-by-case basis.

In a 16-page ruling handed down July 6, the appellate court finds that the Logansport School Board must hear all appeals, unless it has “voted not to hear ‘appeals,’ which is written in the plural, rather than the singular, indicating that the school board’s vote on this matter must be broader than one student’s appeal .... Under these circumstances, it is apparent to us that the legislature intended that School Boards, if they so choose, must vote once not to hear any expulsion appeals, rather than on a case-by-case basis as argued by the School Board.” * * *

Judge Patrick Sullivan, who is the sole elected judge still sitting on the Court of Appeals, authors a partial dissent in which he takes exception to the majority’s interpretation that the school board is required to hear a student’s appeal unless it has already voted not to hear such appeals in general. Judge Sullivan believes this puts the cart before the horse. He writes, “Unless and until an appeal is taken to the governing body, i.e. the Board, it appears incongruous to say the Board may, or must, have previously denied to hear such appeal.” He does not find the same significance in the statute’s use of the plural “appeals” as does the majority, and his reading of the law is that a school board’s “decision whether or not to deny an appeal must be made on a case-by-case basis.” (emphasis in original).

John Hillis, the attorney for the Logansport Community School Corporation, is reviewing the opinion to determine whether the district should appeal the ruling to the Indiana Supreme Court. Julie Slavins, the attorney who filed an amicus curiae brief in the Logansport matter on behalf of the Indiana School Boards Association, explains that the intent of the rewrite of the statute in 1995 was to afford boards the option of whether they wanted to hear an appeal or not. The majority opinion, as we read it on deadline, would seem to remove that discretion.

Posted by Marcia Oddi on Thursday, September 07, 2006
Posted to Ind. App.Ct. Decisions

Wednesday, September 06, 2006

Ind. Decisions - "Molesting conviction tossed because of girl's silence" [Updated]

So reads the headline of a brief story the Indianapolis Star posted late this afternoon on the Supreme Court's decision today in the case of Ronald C. Howard v. State of Indiana (see ILB summary here). Some quotes from the story:

The Indiana Supreme Court today reversed the child molestation conviction of a Noblesville man because the alleged victim refused to testify during the trial.

Ronald C. Howard Jr., 41, had been serving a 35-year sentence for a November 2003 conviction on one count of felony child molestation. He now likely will face a retrial in Hamilton County.

Howard had been accused of molesting a 4-year-old girl over a one-year period that began in 1996. Howard was charged in 2002, after the girl told a counselor she had been abused.

During the trial, the girl, then 12, broke down on the witness stand and refused to testify. Hamilton Superior Court Judge Daniel Pfleging subsequently allowed a deposition, taken from the girl before the trial, to be admitted into evidence.

The Indiana Supreme Court overruled that decision, saying Howard had a Sixth Amendment right to confront his accuser and that state law required a medical or psychological evaluation of the girl before it could be determined she was unable to testify.

[Updated 9/7/06] Bill Ruthhart of the Star has a more detailed report this morning. Some quotes:
During the 2003 trial, the girl, then 12, broke down crying when she took the stand and refused to testify. Hamilton Superior Court Judge Daniel Pfleging then allowed a deposition, taken from the girl before the trial, to be admitted into evidence.

The Supreme Court overruled that decision Wednesday, saying Howard had a Sixth Amendment right to confront his accuser and that state law required a medical or psychological evaluation of the girl before it could be determined that she was unable to testify.

"The Supreme Court is saying that the right to confront your accuser is so important that before you allow even a child witness to be excused from the stand, you have to have specific findings," said Indianapolis attorney Jack Crawford, who argued Howard's case on appeal.[*]

"The court had to have psychological or medical findings that the child just couldn't go on, and those weren't made."

Hamilton County Prosecutor Sonia Leerkamp was disappointed with the decision.

"If the Supreme Court could have seen this poor little girl who completely disintegrated on the witness stand," Leerkamp said. "It was a heart-wrenching situation."

During the trial, Pfleging held an hourlong recess to give the girl a chance to calm down, but she continued to cry, vomited and refused to testify. No psychologist or doctor was called to evaluate her.

"The Supreme Court ruled that this child victim just being upset wasn't enough," Crawford said.

Leerkamp said the girl met with two psychologists before the trial, and both were confident she could testify because she handled the deposition well.

The Supreme Court's opinion said a deposition still could be used in place of courtroom testimony if a physical or psychological evaluation showed the child was incapable of taking the stand. That reassured Candes Shelton, president of the Indiana Children's Coalition.

"That child needs their day in court, too," Shelton said. "If they're unable to be in a fishbowl like that, that should not take away their right to testify against someone who has been accused of a crime."

As a result of Wednesday's decision, Howard will be moved from the Pendleton Correctional Facility to the Hamilton County Jail. After that, he'll face two trials.

In an unrelated case, Howard has been charged with four counts of child molesting and one count of attempted sexual battery; three children, ages 5 to 9, told police he abused them in 2000. That case, which had been delayed pending the Supreme Court's decision, is set for trial Oct. 3.

When Howard's first case is retried, the girl would be at least 15 years old and more than 10 years removed from when she says the abuse occurred.

"I do too many of these cases, and it breaks my heart to think we'll have to put her back on the witness stand and retry the case," Leerkamp said. "But I believe in her, and I believe he did it."

[*] Attorney Jack Crawford represented the defendant in this case. The case turned on the U.S. Supreme Court's 2004 decision in Crawford v. State of Washington -- no relation.

Posted by Marcia Oddi on Wednesday, September 06, 2006
Posted to Ind. Sup.Ct. Decisions

Ind. Courts - Interesting oral argument tomorrow before the Court of Appeals

The case is St. Charles Tower, Inc. v. Bd. of Zoning Appeals of Evansville and the oral argument will take place in the Supreme Court Courtroom, from 2 to 3 p.m. Here are some details:

Synopsis: St. Charles Tower, Inc. applied to the Board of Zoning Appeals of Evansville-Vanderburgh County for a special use permit and variance, both of which are necessary for the erection of a 185-foot wireless telecommunication tower in an area zoned as agricultural but surrounded by several residences.

The special use permit was denied, and St. Charles simultaneously withdrew its petition for a variance. On appeal, St. Charles claims that the Board of Zoning Appeals applied an improper legal standard by requiring the burden of proof for a variance instead of the burden of proof for a special use permit in reaching its decision, and that the decision is not supported by substantial evidence as required by the Telecommunications Act of 1996.

The Scheduled Panel Members are: Judges Riley, Bailey and May.

The argument will be viewable online via the Courts' oral arguments online site.

Two more Court of Appeals oral arguments are scheduled to be broadcast online this month: City of Carmel v. Certain Homeplace Annexation Territory on Sept. 27th (more info here), and Pricewaterhousecoopers, LLP v. James Massey, et al on Sept. 28th (more info here).

Posted by Marcia Oddi on Wednesday, September 06, 2006
Posted to Ind. App.Ct. Decisions

Ind. Decisions - "Mendo gamer get near quarter million in legal wrangle"

The Ukiah (California) Daily Journal has a very long story today that begins:

An Indiana court awarded payments of $241,010.58 to the Mendocino Game Company, producer of the board game "Pirateer" and to its creator, Mendocino native Scott Peterson.

The larger part of this, $196,260.58 was to pay him for his legal fees and court costs in the action he brought against a former trading partner, Warren Industries, for breach of contract and misappropriation of property from the game company.

Before breaking their contract, Warren distributed the buccaneering game to chain retail stores, leaving a select list of clients, independent stores, that MGC reserved for itself.

The jury for the U.S. District Court in Ft. Wayne, Ind. found in favor of Peterson's claim that Warren Industries of Lafayette, Ind. had harmed his company. They then ordered Warren to pay MGC $44,750 of the $25.7 million Peterson asked for. The judge later added $179,403.90 for attorney's fees and $16,856.68 for costs.

Warren had until the end of June to appeal and didn't. Peterson engaged in a hunger strike in Ft. Wayne last fall to speed up the trial, which he saw as being needlessly delayed. Warren has since laid off most of its Lafayette, Ind. workers and moved its assembly line to China.

Posted by Marcia Oddi on Wednesday, September 06, 2006
Posted to Ind Fed D.Ct. Decisions

Ind. Courts - Journalist and Judge Honored by Indiana Judges' Association

Here is the press release posted today on the Courts' website:


A journalist and a trial judge will be honored by the Indiana Judges Association for their outstanding efforts to educate the public about the working of the state's judicial system, Judge John Marnocha of the St. Joseph Superior Court announced today.

Judge Marnocha, president of the Indiana Judges Association, said the association solicited nominations from the judiciary and the public for its Commendations for Excellence in Public Information and Education Awards.

“These awards give us a wonderful opportunity to celebrate the very fine work done by journalists and judges across Indiana to help citizens gain a better understanding of the justice system,” Judge Marnocha said.

Marcia J. Oddi, publisher of The Indiana Law Blog, will receive the media award. The Indiana Law Blog is a web log devoted to providing information on Indiana court decisions and other legal developments. Judge David Chidester of Porter Superior Court nominated Ms. Oddi for providing citizens with an up-to-date capsule of all matters involving Indiana law. Ms. Oddi has published The Indiana Law Blog since 2002.

Judge Mary Beth Bonaventura of Lake Superior Court- Juvenile Division will receive the judiciary award. She was nominated by Magistrate Charlotte Peller and Chief Probation Officer Diane Weiss Bradley of Lake Superior Court for her efforts to educate young people about the reality of juvenile delinquency and juvenile court. Judge Bonaventura was the sole judge featured in a 2005 MTV documentary series called “MTV Juvies.”

The awards will be presented during the Indiana Judges Association luncheon in South Bend on September 14, 2006.

[See also this ILB entry from earlier today.]

[More} And this from How Appealing.

Posted by Marcia Oddi on Wednesday, September 06, 2006
Posted to Indiana Courts

Ind. Decisions - Court of Appeals issues 1 today (and 7 NFP)

For publication opinions today (1):

In Timothy A. Jacks v. State of Indiana, a 5-page opinion, Judge Mathias writes:

Timothy Jacks (“Jacks”) was convicted in Wayne Superior Court of Class A misdemeanor operating a motor vehicle while intoxicated and sentenced to serve ninety days with eighty-six days suspended. Jacks appeals, raising the issue of whether his refusal to submit to a chemical test was improperly admitted into evidence at trial as the officer had not informed him that such a refusal could be used against him in a criminal prosecution. We affirm. * * *

The plain and unequivocal language of [IC] 9-30-6-7 (2004) states that a person only need be advised that refusing to submit to a chemical test will result in suspension of his or her driving privileges. Furthermore, the text of Indiana Code section 9-30-6-3(b) does not provide any requirement that a suspected driver be advised that his refusal can be admitted into evidence in a criminal prosecution. Suspects have no constitutional right to refuse a test designed to produce physical evidence in the form of a breath sample, as we noted in Davis v. State, 174 Ind. App. 433, 438, 367 N.E.2d 1163, 1167 (Ind. Ct. App. 1977) (citing People v. Sudduth, 421 P.2d 401, 439 (Cal. 1966)). For this reason, the content of statutory advisements regarding the consequences of such a refusal will not, in most instances, be dispositive or of constitutional magnitude.

Under these facts and circumstances, we conclude that Jacks was not entitled to receive an advisement warning him that evidence of his refusal could be admitted in a criminal prosecution against him.Therefore, the evidence of his refusal was properly admitted at trial.

NFP civil opinions today (2):

In Commercial Services of Perry, Inc. v. Estate of Ceasario Bonilla (NFP), an 11-page opinion (with a dissent beginning on p. 7), Judge Mathias writes:

Appellant Commercial Services of Perry, Inc. (“Perry”) appeals the Superior Court of Lake County’s order granting Alicia Bonilla’s (“Bonilla”) motion for judgment on the evidence as it relates to a foreclosure action against her and her deceased husband Ceasario Bonilla (“Ceasario”). We are presented with the following dispositive issue, which we restate as: whether the trial court committed reversible error by granting Bonilla’s motion for judgment on the evidence.

Concluding that the trial court committed reversible error when it granted Bonilla’s motion for judgment on the evidence, we reverse and remand for proceedings consistent with this opinion. * * *

Here, the trial court’s order granting Bonilla’s motion for judgment on the evidence included, in pertinent part: “The Court feels Plaintiff failed to meet its burden of proof at trial because Plaintiff failed to introduce the promissory notes, upon which its claim is based.” This was an error of law. Pursuant to [IC] 26-1-3.1-309 and our supreme court’s holding in Yanoff, Perry is not required to present the promissory notes underlying the debts in question in order to proceed with its case. Reversed and remanded for a new trial.

FRIEDLANDER, J., concurs.
BARNES, J., dissents with separate opinion. [which begins]

I respectfully dissent. The majority concludes the trial court erred in ruling that Perry was required to introduce the promissory notes underlying the mortgages in order to prove its case. Regardless of whether the majority is correct on that point, however, the trial court expressly stated that it was ruling in favor of Bonilla for two other, independent reasons. Those reasons, in my view, are sufficient to support the trial court’s judgment in Bonilla’s favor.

In Ugur Camli v. Progressive Medical Imaging, et al. (NFP), a 7-page opinion, Judge Mathias concludes:
The evidence supports the trial court’s conclusion that Camli pursued a frivolous claim, and we cannot conclude that the trial court abused its discretion when it awarded attorney’s fees to Defendants.

Conclusion. The trial court properly granted summary judgment and attorney’s fees in favor of Defendants. Affirmed.

NFP criminal opinions today (5) (link to cases):

Joseph Rushing v. State of Indiana (NFP)

Stephen B. Reeves v. State of Indiana (NFP) - "Photographic evidence that was used at an Elkhart man's murder trial was properly admitted and was not unfairly prejudicial, the Indiana Court of Appeals has ruled. ... Reeves' lawyers argued on appeal that the photographs themselves were proof of nothing and served only to prejudice the jury. But the Appeals Court said all the photographs but one had probative value, meaning they tended to prove some facts of the case." South Bend Tribune 9/8/06

John Bochner v. State of Indiana (NFP)

Tracy Lee Simmons v. State of Indiana (NFP)

Charles M. Cormack v. State of Indiana (NFP)

Posted by Marcia Oddi on Wednesday, September 06, 2006
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Supreme Court issues two today

In Ronald C. Howard v. State of Indiana, a 12-page, 5-0 opinion, Justice Rucker writes:

After a trial by jury the defendant Ronald C. Howard, Jr., was found guilty of child molesting based largely upon the deposition testimony of a child witness who refused to testify at trial. Because there was no showing that the witness was unavailable for trial within the meaning of the protected person statute, the trial court erred in allowing the deposition into evidence. We therefore reverse the judgment of the trial court and remand this cause for further proceedings. * * *

As explained in more detail in part II below, we conclude that C.C. was available for cross-examination when her deposition was taken. However, notwithstanding that conclusion, the trial court erred in allowing C.C.’s deposition into evidence because C.C. was not shown to be unavailable for trial. In sum, for Confrontation Clause purposes a hearsay statement that allowed a prior opportunity for cross-examination may be admitted into evidence but only if the declarant is unavailable. C.C. was not unavailable within the meaning of the protected person statute – the mechanism for determining trial unavailability for children that are alleged to have been sexually abused.4 It is true the record shows that C.C. was apparently emotionally upset when called upon to testify. But there was no testimony by a medical or mental health professional about the nature and extent of her condition. Nor was there a finding by the trial court that C.C. was unable to participate at trial for medical reasons or that C.C. was legally incompetent to testify.

Because C.C. was present at trial and took the stand but refused to testify, we conclude that in the absence of an unavailability finding pursuant to the protected person statute, C.C. was not “unavailable.” The judgment of the trial court is therefore reversed and Howard’s conviction is set aside. This does not however end our analysis. The evidence in this case, specifically C.C.’s deposition testimony, was sufficient to support the jury’s verdict. As a result there is no double jeopardy bar to retrial. See Smith v. State, 721 N.E.2d 213, 220 (Ind. 1999). And should the State decide to retry Howard, and if a proper unavailability determination is made, the question remains whether C.C.’s pre-trial deposition may be admitted into evidence. We now address this issue. * * *

[B]efore the deposition testimony of a child covered by the protected person statute may be introduced at trial, the Sixth Amendment demands “unavailability and a prior opportunity for cross-examination.” (emphasis added). Crawford, however, provides no guidance concerning what “opportunity” is sufficient to satisfy the demands of the Sixth Amendment. Distinguishing between a “discovery” deposition and a “trial” deposition, Howard insists that he had no “adequate opportunity” to cross-examine the child witness in this case. * * *

We acknowledge that trial counsel’s motivation for taking a deposition solely for the purpose of discovery may differ from that of a deposition to perpetuate testimony. * * * But we make two observations. First, although Howard contends that the purpose of the deposition in this case was “for discovery” only, counsel for Howard nonetheless conducted a vigorous and lengthy examination. The deposition lasted approximately two hours and resulted in ninety-two typewritten pages, nearly all of which constitute counsel’s examination of C.C. We thus disagree with Howard’s claim that he was denied his right of confrontation. * * *

Second, and perhaps more importantly, Crawford speaks only in terms of the “opportunity” for adequate cross-examination. The right of confrontation under the Sixth Amendment is honored where “the defense is given a full and fair opportunity to probe and expose [testimonial] infirmities [such as forgetfulness, confusion, or evasion] through cross-examination, thereby calling to the attention of the factfinder the reasons for giving scant weight to the witness’ testimony.” Maryland v. Craig, 497 U.S. 836, 847 (1990) (quoting Delaware v. Fensterer, 474 U.S. 15, 22 (1985) (per curiam)). Whether, how, and to what extent the opportunity for cross-examination is used is within the control of the defendant. * * *

Conclusion. Because there was no showing that C.C. was unavailable for trial within the meaning of the protected person statute, the trial court erred in allowing C.C.’s pretrial deposition into evidence. We conclude however that Howard had a full, fair, and adequate opportunity to confront and cross-examine C.C., within the meaning of the Sixth Amendment, when her pretrial deposition was taken. Accordingly, subject to a trial court finding of unavailability consistent with the protected person statute, C.C.’s deposition may be introduced into evidence at any subsequent retrial.

The judgment of the trial court is reversed and this cause remanded.

In Joshua Staton v. State of Indiana, a 9-page, 3-2 opinion, Justice Boehm writes:
It is a core constitutional principle that in a criminal prosecution the State must prove every element of an offense. We hold that when the age of a defendant is an element of a crime the defendant does not waive that requirement by failing to file a motion to dismiss on the ground that he is not of the required age. * * *

On appeal, Staton challenges the sufficiency of the evidence to support his conviction. Specifically, he contends that the State failed to prove beyond a reasonable doubt that he was at least eighteen years of age at the time of the offense.

The Court of Appeals affirmed the conviction, holding that Staton waived any challenge to the sufficiency of proof of his age because he did not file a motion to dismiss on the ground that he was not at least eighteen years old at the time of the charged offense. Staton v. State, 843 N.E.2d 75, 76 (Ind. Ct. App. 2006). The Court of Appeals believed that this Court’s opinion in McGowan v. State, 267 Ind. 16, 366 N.E.2d 1164 (1977) compelled that result. Judge Vaidik disagreed as to the effect of McGowan, concluding that more recent decisions by this Court “and sound policy considerations support the position that where the offender’s age is an element of the crime charged, the State bears the burden to establish age beyond a reasonable doubt.” Judge Vaidik concurred in affirming Staton’s conviction, however, believing that the State had presented sufficient evidence to establish that Staton was at least eighteen years of age at the time he committed the charged offense. * * *

[State's Burden] We agree with Judge Vaidik that proof of age is required by the Fourteenth Amendment Due Process Clause. A long and solid line of federal constitutional doctrine dictates this result. * * *

[Sufficiency of Evidence] We conclude it was a permissible inference for the jury to find that age was established beyond a rea-sonable doubt.

Conclusion. The decision of the trial court is affirmed. Shepard, C.J., and Dickson, J., concur.

Sullivan, J,. concurs and dissents with separate opinion in which Rucker, J., joins.

Sullivan, Justice, concurring and dissenting. I concur with the Court's holding concerning the McGowan case but respectfully dissent from its conclusion on the sufficiency of the evidence as to the defendant's age. While there may have been enough evidence here to meet a preponderance of the evidence standard, I cannot agree that the testimony of a sole 16-year-old witness that she "imagine[d]" and “under[stood]” defendant to be over the age of 18 constitutes substantial evidence of probative value that, beyond a reasonable doubt, the defendant was over the age of 18. I also disagree with the Court's suggestion in several places that defendant's failure to challenge what little proof the State did offer affects this assessment. I would reverse the judgment of the trial court.

Rucker, J., joins.

Posted by Marcia Oddi on Wednesday, September 06, 2006
Posted to Ind. Sup.Ct. Decisions

Ind. Decisions - Tavern shooting appeal rejected

Bryan Corbin of the Evansville Courier& Press writes today on Thursday's NFP opinion in the case of James Durham v. State of Indiana. Some quotes:

INDIANAPOLIS - The Indiana Court of Appeals again has rejected an attempt by a man who opened fire in an Evansville tavern, killing two, to back out of his guilty plea.

James E. Durham Jr. is serving a 170-year prison sentence after pleading guilty to two counts of murder and three counts of attempted murder in the 2003 shootings.

Durham, who has a history of mental illness, allegedly ranted religious phrases as he opened fire at Stan's Place at 1009 S. Kentucky Ave. with a stolen .40-caliber Glock handgun. After his arrest, during court appearances, Durham declared that he was the biblical King David and cursed at court officials. * * *

The day before the tavern shooting, Durham also shot and critically wounded artist Joseph Scales, leaving him a quadriplegic. Scales died after Durham was incarcerated.

Hospitalized for several months until he was declared mentally competent to stand trial, Durham, in December 2004, went against his attorneys' advice and told the judge that he did not want to raise the insanity defense.

A month later, Durham pleaded guilty, precluding him from receiving a jury trial. Then, in January 2005, Durham tried to back out of his guilty plea, saying he wanted a jury trial after all. But Vanderburgh Circuit Court Judge Carl Heldt denied Durham's request, and his guilty plea stands.

Durham's current attorney appealed. The Indiana Court of Appeals, which had denied Durham's appeal once before, denied it again last week. Writing for the three-judge panel, appeals court Judge Edward Najam found that it was not a "manifest injustice" to prohibit Durham from reneging on his guilty plea.

"Durham was represented by counsel at all times, acknowledged that his counsel had advised against withdrawing the insanity defense, and persisted in his request to withdraw it," Najam wrote in a six-page decision. "On these facts, we cannot say that the trial court's refusal to allow Durham to later withdraw his guilty plea constituted manifest injustice."

Durham's appellate attorney, Matthew Jon McGovern, said he would appeal to the Indiana Supreme Court.

"I think the (original) attorneys in Mr. Durham's case did everything they could do; they had him (mentally) evaluated to make sure he was competent to make decisions. They also encouraged him to pursue the insanity defense," McGovern said.

But while attorneys can advise and strongly urge a client, ultimately the defendant decides whether to plead or not. "The problem with a case like Durham's is there are all kinds of facts floating around that question whether Mr. Durham was making an informed decision or whether mental illness was interfering with that decision - and that's what the appellate courts are sorting out," McGovern said.

Posted by Marcia Oddi on Wednesday, September 06, 2006
Posted to Ind. App.Ct. Decisions

Ind. Courts - More on: "Law-related blogging starting to see a coming of age" -- But can a law blogger ever be considered a "journalist"?

The answer is - YES, at least in Indiana!

In this entry on July 31st, the ILB groused:[*]

But can a law blogger ever be considered a "journalist"? Not according to the application that accompanies this press release from the Indiana Supreme Court, asking for nominations for "an award [to be] presented to a member of the news media for efforts in responsible reporting on the Indiana judiciary." The application specifies:
The Indiana Judges Association wishes to recognize those members of the media (newspaper, television, radio) who have made special contributions to the judicial profession by their efforts in responsible reporting of the Indiana Judiciary. The annual awards will be presented at the Indiana Judges Association luncheon in South Bend on September 14, 2006.
The press release further explained:
The IJA gives two “Excellence in Public Information and Education” awards each year. One award is presented to a member of the Indiana judiciary for special efforts in community relations. In addition, an award is presented to a member of the news media for efforts in responsible reporting on the Indiana judiciary.
That is the background. Now here is the news!

I was delighted to learn yesterday
that I have been selected for the latter award. A press release will be issued by the courts' office, perhaps later today, but meanwhile, with permission, here are some quotes from the note I received yesterday from Judge Lorenzo Arredondo:
Dear Ms. Oddi,

I congratulate you for being chosen as a recipient of the Indiana Judges
Association’s 2006 Media Award for “Excellence in Public Information and
Education.” This annual award is given to selected members of the media
who have “gone the extra mile” in responsible, informative and educational
reporting/programming to the community in matters concerning the Indiana
Judiciary. The Community Relations Committee of the Judicial Conference of
Indiana is charged with reviewing nominations received and selecting the
annual award recipients.

As you may know, the nominations for this award are submitted by
Indiana judges. You were nominated by Judge David Chidester of Porter
Superior Court. * * *

On behalf of the Indiana Judges Association, I thank you for your
responsible reporting in serving the needs of justice in Indiana and wish
you the best in your future endeavors.


Lorenzo Arredondo, Chair
Community Relations Committee
Judicial Conference of Indiana for
The Indiana Judges Association

I very much appreciate this award.
[*] I hasten to clarify that the ILB's grousing was in principle only -- there has been much discussion in the blogosphere about whether bloggers can ever be considered "journalists".

Posted by Marcia Oddi on Wednesday, September 06, 2006
Posted to Indiana Courts

Ind. Decisions - "Court sides with city on fire truck-bidding suit"

Niki Kelly of the Fort Wayne Journal Gazette writes today on yesterday's Court of Appeals ruling in the case of City of Fort Wayne v. Pierce Manufacturing. See ILB case summary here. Some quotes from today's story:

The city of Fort Wayne won a legal victory Tuesday when the Indiana Court of Appeals ruled a company that lost a bid for $4.8 million worth of fire trucks had no legal standing to sue.

The decision reverses the original trial court ruling denying the city’s motion to dismiss the case. * * *

Mark Keaton, who represented the city, argued that more than 100 years of case law shows disappointed bidders cannot sue unless fraud or collusion is involved. He added that any changes to state statute in the late 1990s narrowed – not expanded – the situation further.

But James Fenton – arguing for Pierce Manufacturing Inc. of Wisconsin – said his client fits under a section added to state purchasing laws specifying a remedy for an aggrieved person.

The case began in 2004, when the city used a relatively new “reverse auction” process to solicit bids from Pierce and American LaFrance Corp. of South Carolina.

Essentially, rather than taking sealed bids, the city asked for proposals from fire truck builders, then began negotiating down the prices simultaneously. In the end, LaFrance won the contract for the 14 trucks at a cost of $4.8 million.

City officials estimated at the time the process saved the city $475,000.

A few months later Pierce sued, alleging the city didn’t treat both bidders fairly. The case was moved out of Allen County, and Wells Circuit Judge David L. Hanselman Sr. decided in October that Pierce did have standing and the city failed to follow the statutory procedure.

He canceled the contract and ordered a new bidding process – the only remedy allowed by law. Pierce cannot seek cash damages.

The city has paid for and received at least seven of the 14 fire trucks, which went mostly to serve newly annexed areas. But the city is still waiting for seven that are badly needed to replace older vehicles that are wearing out.

The appellate decision did note that the city did not treat the two bidders the same, telling LaFrance that its initial bid was “not competitive with the target pricing” and allowing them to substitute an air ride system for an independent front suspension system.

But the court never got past the issue of standing, saying Pierce did not meet the definition of “person aggrieved” set out in state law.

Fenton said Tuesday he needed to fully examine the ruling before he and his client make any decisions about an appeal.

The case was one of “first impression” for the court, which had not decided the issue since the legislature changed the law.

The oral argument was July 7th. Here is the ILB entry quoting from Ms. Kelly's report on the oral argument.

And here is the statute at issue: IC 5-22.

Posted by Marcia Oddi on Wednesday, September 06, 2006
Posted to Ind. App.Ct. Decisions

Ind. Decisions - More on: 7th Circuit to hear oral arguments in legislative prayer case Thursday

Updating yesterday's entry are additional stories today on the oral arguments scdeduled before the 7th Circuit tomorrow in the case of Hinrichs v. Bosma. Bryan Corbin has this story in the Evansville Courier& Press; Niki Kelly has this story in the Fort Wayne Journal Gazette.

Posted by Marcia Oddi on Wednesday, September 06, 2006
Posted to Ind. (7th Cir.) Decisions

Ind. Gov't. - Floyd's continuing dispute over whether a utility can condemn land in eminent-domain proceedings

Matt Batcheldor of the Louisville Courier Journal reports today:

With a groundswell of support from Floyds Knobs residents, the Floyd County Board of Commissioners voted 2-1 last night to give the county final say over whether a utility can condemn land in eminent-domain proceedings.

Commissioner Chuck Freiberger successfully argued that the county must pass the ordinance immediately because the issue is already affecting residents.

"It's time for county government to step up and protect our citizens until the state government steps in and does something," Freiberger said.

Four Floyds Knobs neighbors were sued in an attempt to run sewer lines on their property so developer Bob Lynn can start the 223-lot Lafayette Ridge subdivision off Stiller and Fertig Creek roads.

The county's Plan Commission approved the project in July, but only if Lynn could get easements on four neighbors' land for sewer lines -- and they have refused.

County Attorney Steve Lohmeyer said the commissioners couldn't stop those proceedings even if they adopt the measure. But Freiberger and Commissioner Steve Bush said the county could stop such action in the future.

It's not just the four residents that were taken to court -- more than 300 people have signed a petition supporting an eminent-domain crackdown. About 40 residents attended yesterday's standing-room-only meeting.

"I think the citizens of Floyd County are pretty clear that they want restrictions on eminent domain," said Floyds Knobs resident Jeff Moberly. * * *

John Kraft, an attorney who has represented the Edwardsville water district for 15 years, said it's the courts' job to decide who gets eminent domain.

But resident [George] Mouser countered, "It may cost you more than your land's worth to defend it."

The Supreme Court case prompted Indiana's General Assembly to adopt a law earlier this year making it much more difficult for a local government to take private land. The land must be considered blighted, unsafe or unsanitary, and a percentage of landowners would have to agree with a project before eminent domain could be used to proceed.

But that law doesn't address eminent-domain seizures by public utilities.

"If I don't want sewer lines on my property, that shouldn't be allowed," [Commissioner Steve] Bush said.

Posted by Marcia Oddi on Wednesday, September 06, 2006
Posted to Indiana Government

Ind. Courts - "Big judge turnover expected in Clark County: Confusion could reign, some say "

"Big judge turnover expected in Clark" is the headline to this story today by Harold J. Adams in the Louisville Courier Journal. Some quotes:

Three of Clark County's four major criminal courts are likely to get new judges over the next two years through retirements and elections.

That much judicial turnover in such a short time could cause confusion that some say could be exploited by defense lawyers. * * *

Clark Superior Court I will be the first to get a new judge when Jeffersonville City Court Judge Vicki Carmichael, a Democrat, or lawyer Steve Langdon, a Republican, takes over in January. Carmichael defeated incumbent Judge Jerry Jacobi in the primary.

The next vacancy is likely to occur in Clark Circuit Court in March 2008. Incumbent Democrat Daniel Donahue, whose term runs through the end of 2010, said he and his wife are considering moving to Washington state to be closer to their grandchildren. * * *

Judge Steven Fleece of Superior Court III long has let it be known that he will retire when his term expires at the end of 2008.

That leaves only Cecile Blau, the Superior Court II judge, as an incumbent with no plans to leave when her term expires at the same time as Fleece's. Still, there is speculation about whether she intends to run for re-election.

"I probably have three or four people that ask me daily about that," Blau said. "And my game plan at this point is to run (for re-election). I don't know how else to say that at this time." * * *

The departures of Fleece, Jacobi and Donahue would equal more than 55 years of experience leaving the Clark County judiciary within two years. * * *

The governor would appoint someone to take over Circuit Court if Donahue leaves. But that seat would go on the ballot in 2008 along with the open Superior III seat and Blau's Superior II seat.

"Anybody that wants to be a judge and can't figure out how to get it done in 2008 ought to give up," Fleece said. "It's going to be the greatest opportunity for people to become judges that's been available for quite a while."

Some candidates already are jockeying for position.

"I intend to be on the ballot in 2008," Jacobi said. He would not say which seat he will seek but said it would not be the Circuit Court seat.

That's because David Lewis, a former Clark County commissioner, said he plans to run for that seat if Donahue resigns. Jacobi said he wouldn't run against Lewis, a close friend, or an incumbent judge.

Joseph Weber, the longtime Clarksville Town Court judge, said, "I'll in all likelihood run" for Fleece's Superior III seat if he retires.

Posted by Marcia Oddi on Wednesday, September 06, 2006
Posted to Indiana Courts

Tuesday, September 05, 2006

Ind. Courts - Interviews Friday for the upcoming vacancy on the St. Joseph Superior Court

Elkhart's WFRN is reporting this afternoon:

Indiana's Judicial Nominating Commission will interview eight candidates this week for a South Bend judgeship. St. Joseph Superior Judge William Albright is retiring at the end of the month. The state commission will send three names to Governor Mitch Daniels, who will pick one as Albright's replacement.
Actually, that is incorrect. The state judicial nominating commission is not involved.

Here is the release from the Indiana Supreme Court website:


The St. Joseph Superior Court Judicial Nominating Commission will interview candidates for the upcoming vacancy on the St. Joseph Superior Court on Friday, September 8, 2006. The interviews will begin at 9:30 a.m. in the conference room of the St. Joseph Circuit Court, Second Floor, County Courthouse, South Bend, Indiana.

An interview schedule will be posted on the door of the Conference Room on the day of the interviews. At the conclusion of the interviews, the Commission will deliberate in executive session.

Following the executive session, the Commission will reconvene in the Conference Room for a public vote on the nominees whose names will be submitted to the Governor for his consideration and appointment.

More details about judicial selection in Indiana can be found on the American Judicature Society website, which has a page on the subject. Re the court in question, it states:
The nominating commission for the superior court of St. Joseph County consists of seven members: a judge of the supreme court or court of appeals appointed by the governor; three lawyers elected by bar members in the county, and three nonlawyers appointed by a selection commission made up of the St. Joseph circuit court judge, the president of the St. Joseph County board of commissioners, and the mayors of St. Joseph County's two largest cities. No more than two lawyer members, and no more than four commission members, may belong to the same political party. Commission members serve four-year terms.

Posted by Marcia Oddi on Tuesday, September 05, 2006
Posted to Indiana Courts

Ind. Decisions - 7th Circuit to hear oral arguments in legislative prayer case Thursday [Updated]

Mary Beth Schneider of the Indianapolis Star reports, in a story just posted headed "Lawmakers seek donations for prayer appeal," that:

The Indiana House of Representatives will soon start raising money to help pay for the cost of appealing a federal judge's decision barring prayers specific to any particular religion, including Christianity, in the legislature.

A federal appeals court panel of three appellate judges will hear arguments on that case at 10:30 a.m. Thursday in Chicago.

House Speaker Brian Bosma, R-Indianapolis, said that a Washington, D.C.-based law firm, Winston & Strawn, will present the lawmakers' arguments in that hearing. So far, he said, the legal bills have come to about $67,000, but that does not include any of the work preparing for Thursday's hearing.

He expects money raised from the public to defray those costs, currently being paid for by taxpayer-funds out of the House budget.

In addition to the parties' briefs in this case, Hinrichs, Anthony v. Bosma, Brian., over a dozen amicus briefs have been filed with the court by various interest groups. Access them all here, via the 7th Circuit website.

For background, see this May 12th ILB entry.

[Updated] Mike Smith of the AP reports this afternoon. Some quotes:

Indiana House leaders will seek private donations in their efforts to overturn a federal judge's ruling restricting opening prayers in the body's Statehouse chambers, House Speaker Brian Bosma said Tuesday.

The money would help defray costs of paying a private law firm tax dollars to defend a case set to be heard by a panel of the 7th U.S. Circuit Court of Appeals in Chicago on Thursday. Bosma also said that in a rare instance, the U.S. Department of Justice is weighing in on a legislative prayer case and will argue on the side of the speaker.

"It is my understanding that they and members of Congress are quite concerned about the impact of this case on the 225-year practice of free prayer in Congress," said Bosma, R-Indianapolis. He said he has heard from hundreds of state and local officials from Indiana and other states who have encouraged a strong defense of the prayers. * * *

The American Civil Liberties Union of Indiana challenged the prayer practices on behalf of four Christians who said the tradition of usually Christian prayers offended them. Ken Falk, the ACLU of Indiana's legal director, has said the prayers violate a 1983 U.S. Supreme Court ruling permitting only nonsectarian prayer before a legislative session.

But Bosma said Tuesday that there is strong disagreement among legal scholars about the interpretation of that ruling. The House policy encouraged prayers to be ecumenical, but Bosma said he refused to tell clergy or lay people what they could say in prayers at the podium.

"I think that's the fundamental question here: Who decides how an individual prays on the floor of the House - a federal court judge or our 189-year tradition of praying in accordance with one's conscience and heart?" Bosma said.

He said clergy of non-Christian faiths also had delivered opening prayers in the past. But of 53 such prayers during the 2005 session, 41 were given by clergy identified with Christian churches and at least 29 mentioned Jesus Christ.

An attorney from the Washington-based law firm of Winston & Strawn will argue on behalf of Bosma's appeal. The Indiana attorney general's office represented the House before the district court and remains part of the defense team, but the private firm specializes in First Amendment cases before appeals courts, Bosma said.

The firm has been paid at least $67,000 in tax money from the Indiana House budget so far, Bosma said. But he said House staff was creating a way for people to make private donations for a case he predicted ultimately would be decided by the U.S. Supreme Court.

Posted by Marcia Oddi on Tuesday, September 05, 2006
Posted to Ind. (7th Cir.) Decisions

Ind. Law - Indy law firm files action in Calif. on behalf of Fred Goldman, involving O.J.Simpson [Updated]

Indiana Inside Business has posted a press release today that begins:

INDIANAPOLIS, IN-September 5, 2006-Jonathan Polak, Director and Chair of the Intellectual Property Group at Indianapolis-based Sommer Barnard PC, and Peter Haven, with the Los Angeles-based firm of Musick, Peeler & Garrett LLP, opened a new chaper in the “Trial of the Century” today when they filed in California Superior court a petition on behalf of Fred Goldman to be granted ownership and control over O.J. Simpson’s “Right of Publicity.”
[Updated] This evening CNN is reporting:
SANTA MONICA, California (CNN) -- In what may be an unprecedented legal move, Fred Goldman is asking to have control over O.J. Simpson's publicity rights to his own likeness, name and persona to satisfy a multimillion-dollar wrongful death judgment.
[Thanks to How Appealing for the CNN link.]

Posted by Marcia Oddi on Tuesday, September 05, 2006
Posted to Indiana Law

Ind. Decisions - 7th Circuit decides Michigan City ban on park use by convicted child molester [Updated]

In Robert Brown v. Michigan City (ND Ind., Robert L. Miller, Jr., Chief Judge), a 27-page opinion, Circuit Judge Ripple wrotes:

On August 1, 2002, Robert Brown was banned from all properties or programs operated by the Michigan City Department of Parks and Recreation. On August 13, 2002, he filed this suit against the City of Michigan City, Indiana (“City”); he alleged that the ban violated his rights to procedural and substantive due process guaranteed by the Fourteenth Amendment. On September 19, 2005, the United States District Court for the Northern District of Indiana granted summary judgment in favor of the City. Mr. Brown now appeals. For the reasons set forth in this opinion, we affirm the judgment of the district court.
The Court references its earlier decision in Doe v. City of Lafayette [for background on the City of Lafayette case, start with this 2004 ILB entry]:
Mr. Brown also contends that the City violated his right to substantive due process when it banned him from entering its public parks. * * *

The right to enter a public park is not among this list [of recognized “fundamental” rights]. In fact, in Doe v. City of Lafayette, 377 F.3d 757 (7th Cir. 2004), we explicitly refused to expand the list of fundamental liberties to include a right to enter city parks. In Doe, the plaintiff previously had been convicted of child molestation. While on probation, he reportedly was seen “cruising parks and watching young children.” * * *

Mr. Brown does not challenge Doe’s conclusion that the right to enter a park is not fundamental. * * * Unlike in Doe, he urges, where the plaintiff was observed engaging in behavior “threatening [and] dangerous” to children, Mr. Brown’s behavior was largely benign: He merely sat alone in his R.V., observing patrons on the beach and in the park.

We cannot accept this argument. Rational-basis review is “highly-deferential.” Turner v. Glickman, 207 F.3d 419, 426 (7th Cir. 2000). To find that a government action violates the requirements of substantive due process in this context, it must be “utterly lacking in rational justification.” Id. (internal quotation marks omitted). In this case, Michigan City park personnel received reports that Mr. Brown had been sitting in his van, watching beach patrons through binoculars; he came to Washington Park once or twice daily; he previously had been seen at a nearby beach watching a family; and he has a criminal record for molesting a child. Of course, there are significant differences between Mr. Brown and the plaintiff in Doe; for example, there is no evidence that Mr. Brown was “[l]ooking for children” or “having . . . urges” while watching children at the park. Doe, 377 F.3d at 759-60 (quoting Mr. Doe’s admissions). Nor can we conclude on the basis of the record before us, as we did in Doe, that Mr. Brown necessarily is heading down a “slippery slope into abuse.” Id. at 773. Nevertheless, the reality is that “children, some of the most vulnerable members of society, are susceptible to abuse in parks,” id., and that the City has a duty to shield them, ex ante, from the mere risk of child abuse or molestation. The ban of Mr. Brown from the City’s parks bears a rational relationship to its goal of protecting the children of its community. As a practical matter of ensuring public safety, Mr. Brown is not just another patron of the public parks. He is a convicted child molester whose frequency of attendance and atypical behavior while in the park justified the concern of those public officials charged with ensuring the safety of members of the public who visit the recreational site.

Mr. Brown responds that, because Michigan City has not chosen to ban all child molesters from its parks, only Mr. Brown, its actions are “fundamentally irrational.” Appellant’s Br. at 34. But the City’s means need not be “narrowly tailored” to its goals; rather, they need only be “reasonably related to [those] goal[s].” City of Chicago v. Shalala, 189 F.3d 598, 607 (7th Cir. 1999). Unlike other persons previously convicted of child molestation, Mr. Brown was witnessed repeatedly in Washington Park watching patrons through binoculars; there is no indication that park officials had seen other sex offenders on City property, engaged in activity similar to Mr. Brown’s. Further, as we concluded in Doe, “[t]here is certainly nothing in the record to suggest the City would act differently when faced with a similar case.” Doe, 377 F.3d at 773 n.14.9

Conclusion. For the reasons set forth in this opinion, we affirm the judgment of the district court.

The district court opinion in Brown is available at the end of this ILB entry from 9/28/05.

[Updated] Charles Wilson of the AP has a brief story this afternoon that concludes:

The appeals court's reasoning was similar to a 2003 ruling upholding a similar law in Lafayette.

Six sexual offenders also filed a federal lawsuit against Indianapolis in May to block a new ordinance that bans them from coming within 1,000 feet of parks, pools, playgrounds and other sites when children are present.

Posted by Marcia Oddi on Tuesday, September 05, 2006
Posted to Ind. (7th Cir.) Decisions

Ind. Decisions - Court of Appeals issues 1 today (and 2 NFP)

For publication opinions today (1):

In City of Fort Wayne v. Pierce Manufacturing, a 23-page opinion, Judge Sharpnack writes:

The City of Fort Wayne (“City”) appeals the trial court’s grant of a motion for summary judgment filed by Pierce Manufacturing, Inc., (“Pierce”) and the trial court’s denial of a motion to dismiss and a motion for summary judgment filed by the City. The City raises two issues, one of which we find dispositive and restate as whether the trial court erred by denying the City’s motion to dismiss based upon Pierce’s lack of standing to contest the City’s award of a contract to another bidder. We reverse. * * *

Ind. Code § 5-22-3-6 clearly provides that Pierce does not have a property interest in the award of the contract. Furthermore, we fail to see how Pierce had a personal interest in the City’s determination and any pecuniary interest was speculative and insufficient to establish that it was a “person aggrieved” under the Public Purchasing Statute. Pierce argues that this interpretation renders the judicial review provisions of the Public Purchasing Statute ineffective because “if a responsive, yet rejected, bidder were not aggrieved by a violation of the Public Purchasing Statute, it is difficult to imagine who would be.” * * * Given the legislative and judicial history in Indiana regarding unsuccessful bidders challenging the award of a governmental contract, if the legislature had intended to allow unsuccessful bidders to make challenges to a contract award under the Public Purchasing Statute, such an intent could have been made clear.

We conclude that the trial court erred by denying the City’s motion to dismiss because, as an unsuccessful bidder, Pierce was not a “person aggrieved” and did not have standing to appeal the City’s award of the contract under the Public Purchasing Statute.

NFP civil opinions today (0):

NFP criminal opinions today (2) (link to cases):

Jeffrey Jerome Scott v. State of Indiana (NFP)

S.C.T. v. State of Indiana (NFP)

Posted by Marcia Oddi on Tuesday, September 05, 2006
Posted to Ind. App.Ct. Decisions

Law - Attorney who made a fortune in a multibillion dollar Texas tobacco settlement spends big at Auburn auction

An AP story today reports:

AUBURN, Ind. -- A yellow 2005 Lamborghini Gallardo covered with dozens of celebrity autographs sold for $500,000 to a Houston collector who made some other big purchases during Kruse International's annual Labor Day weekend auction. * * *

John O'Quinn, an attorney who made a fortune in a multibillion dollar Texas tobacco settlement, also spent $335,000 on a Batmobile used in the film "Batman Forever." His other purchases at the auction included spending $250,000 for a 1938 Cadillac Town Car used by Pope Pius XII and $290,000 on a 1941 Packard limousine used by President Franklin D. Roosevelt.

O'Quinn paid $690,000 at a Kruse auction in Las Vegas last year for a 1975 Ford Escort GL once owned by Pope John Paul II.

Posted by Marcia Oddi on Tuesday, September 05, 2006
Posted to General Law Related

Monday, September 04, 2006

Ind. Courts - "Means, 77, to continue as judge"

The South Bend Tribune has a story today by Marti Goodlad Heline headed "Means, 77, to continue as judge: He says age is no barrier to doing his job." Some quotes:

SOUTH BEND -- St. Joseph Superior Court Judge William T. Means says he's not ready to hang up his robe.

So at age 77, Means has declared he is running for another six-year term on the Superior Court. It will be his fourth time on the ballot.The experienced jurist, who celebrated his 20th anniversary on the bench in March, said he gave considerable thought as to whether the time had come "to pass the torch."

"I still look forward to meeting the daily challenges required by the job," Means said. * * *

His doctors told him there are no health reasons he should not continue to work if he wishes, Means added.

A couple of reasons, the judge said, led to his decision to seek another term.

One is related to the upcoming retirement of Superior Court Judge William H. Albright on Sept. 30.

If Means were to retire at the end of December, he said it would result in a 25 percent turnover of the eight Superior Court judges within four months.

"I am of the opinion that there should be a more staggered transition for the sake of continuity, if nothing else," Means said. "And if re-elected, I would plan to stay on sufficiently long to offer aid and support to help Judge Albright's successor."

The process of choosing Albright's replacement begins this week when the eight applicants are interviewed by the court's Judicial Nominating Commission.

Means also said it would be extremely unfair to give his "very supportive and able" staff just four months to plan their futures if he chose to retire at the end of the year.

A new judge may ask the staff to remain, Means said, but "any new judge has every right to pick his or her own staff."

Means has no mandatory retirement age to worry about in St. Joseph County.

There is a state-mandated retirement age of 75 for judges on the Indiana Supreme Court and Court of Appeals.

Many Indiana counties have a retirement age of 70 for Superior Court judges, according to Chief St. Joseph Superior Court Judge John M. Marnocha, president of the Indiana Judges Association.

But other counties, like St. Joseph, have no retirement age.

The requirement usually means a judge cannot begin a new term after reaching the specified age, Marnocha said. But if a judge reaches that age in the middle of a term, the judge can complete the term. [But see note below]

Superior Court Judge Jerome Frese, also up for another term, will be 71 at the time of November's election.

Superior Court judges run for retention every six years in a nonpartisan referendum. Citizens are asked to vote "yes' or "no" whether the judge should serve another term.

No St. Joseph County judge has ever been turned back in the 30 years that system has been in place.

Note: Re the statement "if a judge reaches that age in the middle of a term, the judge can complete the term." This may be true for county courts, but the ILB does not believe it to be true for Supreme Court justices and Court of Appeals judges. Article 7, section 11 of the Indiana Constitution includes this provision:
Every such justice or judge shall retire at the age specified by statute in effect at the commencement of his current term.
The age currently specified by statute (IC 33-38-13-8) is seventy-five:
(a) Every justice of the supreme court and judge of the court of appeals shall retire at seventy-five (75) years of age.
(b) Notwithstanding subsection (a), the supreme court may authorize retired justices and judges to perform temporary judicial duties in any state
Or course, if you are president of Purdue, you must retire at age 65, for heaven's sake.

Posted by Marcia Oddi on Monday, September 04, 2006
Posted to Indiana Courts

Ind. Law - ISBA Annual meeting Oct. 4-6 at Indianapolis Marriott Downtown

This will be the 110th Annual Meeting. Access the 12-page brochure here.

Posted by Marcia Oddi on Monday, September 04, 2006
Posted to Indiana Law

Ind. Courts - Commissioner of the Court of Appeals dies

Janet Roberts Blue 73, of Indianapolis, died August 30, 2006 in Indianapolis.

Here is the obituary from the Indianapolis Star.

Posted by Marcia Oddi on Monday, September 04, 2006
Posted to Indiana Courts

Courts - "It is a Monday in Los Angeles County Superior Court"

"The System: Deals, Deadlines, Few Trials: Defendants' futures hang in the balance of decisions made daily in the courtrooms and hallways of Superior Court in Norwalk." That is the headline to this long piece by John Balzar today in the LA Times. Some quotes:

There is nothing particularly special about this Monday. Not for the larger megalopolis anyway. It is special only for those who have an appointment with The System. For them, today could mean the difference between going home or going to prison, between hope or no hope at all. * * *

Norwalk is an anomaly among Los Angeles courthouses. The criminal cases here are all felonies. Lesser crimes, misdemeanors, are tried in feeder courts in surrounding cities: Downey, Bellflower, Whittier. The more serious cases, those that carry potential prison terms, are funneled here after arraignment and preliminary hearings in outlying courts.

In the last six months, the numbers of felony filings in this part of the county have ranged from just under 1,000 in February to more than 3,400 in July.

At 9:10, Judge Larry S. Knupp puts down his coffee mug, slips on his robe and steps up to his chair overlooking Department S.

A bulky man, jowly and balding, Knupp, 66, wears a dour game face, practiced during half a lifetime on the bench. His mouth arcs sharply downward in what appears to be an exaggerated scowl. By reputation, he is one of the most patient judges in the courthouse.

After an arrest, California's judicial system is a march of many incremental steps: arraignments, preliminary hearings, early disposition hearings, investigations, reports, motions and pretrial conferences.

Much of it is reduced to writing, placed in the files and entered on the court calendar according to a series of deadlines that are supposed to make good on the constitutional guarantees of swift justice.

Only afterward will the accused stand trial. Rarely does it get that far.

In Norwalk, by the count of the district attorney's office, 97.2% of felony cases are settled in advance of a trial — usually as part of the daily ritual here called "running the calendar."

This is ground-level justice, community justice — the other side of the coin from the epic cases that make headlines.

Posted by Marcia Oddi on Monday, September 04, 2006
Posted to Courts in general

Sunday, September 03, 2006

Courts - Reform effort underway in Nevada, "on the heels of a LA Times investigation, published in June"

The LA Times' reports on Las Vegas judges were recorded here in the ILB - this June 19th entry includes links to all three stories. Some quotes from today's lengthy story:

LAS VEGAS — Weary of the perception that their courts are tainted by money, civic leaders in Nevada have launched a reform effort that would diminish the need for judges to moonlight as politicians and would force them to keep their distance from financial contributors.

The overhaul, if successful, would represent another step in the maturation of a famously maverick state, a move some advocates believe would mark a cultural shift akin to the campaign 25 years ago to chase the mob out of the casino business.

"That was a watershed time; you could liken this to that," said Vincent A. Consul, a veteran Las Vegas litigator and criminal defense lawyer who is past president of the State Bar of Nevada. "There is a coalescence here, a combination of growth, of growing up, of outgrowing the state's Wild West days."

The campaign comes on the heels of a Los Angeles Times investigation, published in June, which found that some state judges routinely ruled in favor of friends, former clients and business partners; solicited campaign funds from lawyers with cases pending before them; and awarded millions of dollars in judgments without disclosing personal ties to those who benefited from their rulings.

The Times disclosed, for example, that 17 incumbents in recent elections raised hundreds of thousands of dollars from lawyers, casinos and other corporations with cases pending before them.

Now, a two-pronged reform effort is underway.

The Nevada Supreme Court has been petitioned to adopt a rule prohibiting judges from directly soliciting or accepting campaign contributions, a change that would put the state in line with most of the nation. The court is expected to meet privately in coming weeks to consider the petition. * * *

Additionally, scholars and prominent attorneys are seeking to change the way judges reach the bench in Nevada and retain their positions.

Many Nevada judges face a grueling election every six years, often putting them in the position of sitting in judgment of wealthy and powerful people while trying to raise money in those circles.

Under a proposal dubbed "the Nevada Plan," the governor would fill Supreme Court or District Court vacancies by appointment, choosing among nominees offered by a state judicial commission.

The judges would then serve at least two years before facing an open election. Once a judge wins that election, he or she would face only a "retention vote" — remaining in office with the approval of a majority of voters, without running against a challenger — every six years.

The reform effort is not a sure thing.

The proposal to distance judges from campaign contributors is the simpler of the two measures; it requires only a vote of the Supreme Court's seven justices. But some of those justices have long benefited from existing rules; several are renowned among state politicians for their fundraising prowess.

And last month, members of the court may have signaled a hesitancy to adopt the rule change when they suggested it could amount to an unconstitutional limit on free speech.

In a two-page order, the justices noted that federal courts in recent years had struck similar restrictions in other states. The Nevada justices cited a 2002 federal appellate opinion that said: "The fact that judicial candidates require financial support … to run successful campaigns does not suggest that they will be partial if they are elected."

The Nevada justices asked Judge Adams, the State Bar of Nevada and other organizations to file briefs addressing that issue. Robert E. Rose, the court's chief justice, declined to comment through a spokesman.

Even if the court approves the new rules, some have questioned whether the public's confidence in the judiciary would be enhanced just because a judge's representative solicits on his or her behalf. * * *

Broader overhaul, advocates say, would come with the proposal that would eliminate periodic general elections for most judges. Because that change would alter the state constitution, it would require a more laborious approval process — two votes by the state Legislature and approval by voters.

The Legislature meets only every two years — its next session is scheduled to begin in February 2007 — and can only vote on the proposal once per session. That means the earliest the proposal can land on a ballot is 2010. If approved, it would take effect in 2011.

ADVERTISEMENTWhat's more, Nevada's don't-tread-on-me voters have long been fiercely protective of their right to elect judges; they have twice rejected efforts — in 1972 and 1988 — to change how judges are selected.

The new proposal, however, has been scaled back from the earlier attempts, which did not include any provision for electing judges. Consul, the Las Vegas litigator, said the proposal's requirement that judges face one general election early in their terms is a crucial distinction.

Posted by Marcia Oddi on Sunday, September 03, 2006
Posted to Courts in general

Ind. Courts - "As abuse cases mount, judge shares concerns"

David Smith, Lafayette Journal and Courier special projects editor, has a long interview today with Judge Loretta Rush of Tippecanoe Superior Court 3, the county's court for juvenile proceedings. It begins:

Question: What does a juvenile court judge do?

Answer: It actually goes back 102 years to the first juvenile court in Chicago. They decided that the issues and needs of children were different than adults.

This court handles issues involving juvenile delinquency, juvenile status offenders, children in need of services or CHINS, children who are made wards of the court, termination of parental rights and paternity actions -- cases involving at-risk, delinquent, abused and neglected children and families.

You decide the legal issues in each case, but beyond that juvenile judges have to make sure the community resources are there to meet the needs of the children.

A side-bar to the story provides links to background stories centering around the tragic death of "Aiyana Emily Gauvin, a 4-year-old from south Lafayette, was beaten to death in her home March 16, 2005, about a year after her child protection case in Tippecanoe Superior Court 3 was closed." There is also a special page devoted to the Aiyana story. A chart shows "Annual new cases filed in Tippecanoe Superior Court 3 (juvenile court)."

Posted by Marcia Oddi on Sunday, September 03, 2006
Posted to Indiana Courts

Ind. Gov't. - Are the Indiana Week in Review pundits going to be wrong again?

My thoughts: On January 23, 2006 an ILB entry began:

I watched WFYI's Indiana Week in Review last weekend. "Lifetime Health Insurance for Lawmakers" was one of the topics discussed. The lead-in featured Rep. Billy Bright, who it was said won election in 2004 in part by criticizing the plan. He called it "an egregious benefit." * * *

The panel discussion was superficial. One panel member actually said that the expense was not that great. When someone responded "now" she continued "in the larger school of things, compared to the Medicaid budget"! As they wound up, Mike McDaniel asked the reporters: "Where were you guys when all this was going on? Where was the press? Jon Schwantes said "that's a good question." Jim Shella said "That is a very good question."

I was astonished. I knew about these bills at the time, in 2001 and 2002. Rep. Billy Bright had to know about them since, as they said in the program's introduction, he won election by criticizing the plan. And of course Brent Waltz defeated longtime senator Larry Borst by running against legislative perks.

We haven't seen the results of the general election yet this year, but in the primary the Senate President Pro Tem, Robert Garton, was defeated by an unknown, to the shock of the IWR panel.

Another legislative benefit that surfaces now and then is the employment by Ivy Tech (and to a lesser extent other state educational institutions) of high-ranking legislators. A March 13, 2006 story in the Bloomington Herald-Times by Steve Hinnefeld reported:

Ivy Tech — now Ivy Tech Community College — employs four legislators. Senate President Pro Tem Robert Garton, R-Columbus, House Minority Leader B. Patrick Bauer, D-South Bend, and Rep. Craig Fry, D-Mishawaka, all make more than $100,000 a year. Rep. William Crawford, D-Indianapolis, makes $66,991. Purdue, Ball State and Vincennes universities and the University of Southern Indiana also have employed legislators.

Indiana University now has two full-time employees who are legislators: Rep. William Cochran, D-New Albany, an assistant to the chancellor of IU Southeast; and Rep. Vernon Smith, D-Gary, an education professor at IU Northwest. Both make about $57,000.

But under a new policy, IU officials will have to jump through hoops to hire legislators or anyone else who holds public office, including federal, state, county and city elected officials and people involved in state higher-education governance.

Herbert, the IU president, implemented the policy in December in response to a recommendation in the labor studies audit. It says anyone who hires a public official to work for IU must justify the employee's salary and get approval from the president or the campus chancellor or provost.

The fact that Ivy Tech employs both the Senate President Pro Tem and the House Minority Leader (or Speaker, depending on the year) has been a subject of conversation for years. But nothing has been done about it.

Friday on IWR, after discussing the retirement of longtime Ivy Tech president Gerald Lamkin, the question of whether "we should expect a culture change at Ivy Tech" came up. Jim Shella said "One of the things I'm getting at -- we've talked here about all the legislators and members of legislators' families who work ... "

Jon Ketzenberger interrupted: "You mean [do] they still have jobs after this?"

Shella: "That is the thing I'm wondering about."

Ketz: "You know -- if they do the right thing they will make that culture change because it's a conflict of interest to have jobs at Ivy Tech directly like -- I think they should reconsider that issue."

Shella: "Do you think that will happen?" [Mike McDaniel laughing in the background]

Ann DeLaney: "I think whenever you have a long-term administrator that is stepping down, changes happen."

McDaniel: "Of course it's not gonna happen. Who's gonna consider it? [Shella laughing in background] You're not gonna have that kind of change as far as legislators working for Ivy Tech -- it's not gonna happen, not in our lifetime. * * * A lot of people have wondered about it but it's not gonna happen -- who is gonna consider it, the legislature? Duh!"

Two weeks ago today the Indianapolis Star provided a link to a database of the salaries of "all state employees." See the ILB entry here.

In an entry about the database the ILB noted:

Salaries of the Legislative Services Agency do not appear to be included in the database. Neither do the salaries of House and Senate staff. All of these salaries are paid, of course, by the taxpayers. * * *

University salaries are also included, including both high officials, and instructors whose names I recognize here in Indianapolis. One wonders then why Senator Robert Garton's and Rep. Patrick Bauer's names only appear with their General Assembly salaries, when they are also high up on the staff of Ivy Tech.

Legislative employees were not part of the "database of all state employees." Ivy Tech was not one of the five universities included in the database. Why these specific omissions? Readers of Taking Down Words asked the same questions. One wrote:
I did notice that the House and Senate Staffer salaries were missing from the database. Anyone know why?
Another responded:
I believe legislative leadership did remove some of the salaries from this database two or three years ago. I am told it was a bipartisan agreement. I have no idea why it happened.
Another asked:
Where are the Ivy Tech salaries? I looked for Bauer and Garton but the list only had their legislative salaries.
Dennis Ryerson of the Indianapolis Star wrote in his column last Sunday August 27th about the Star database, but did not mention the omissions. In fact, he said: "We also posted the salaries of every state employee, including those at five state universities, on our Web site, IndyStar.com." Well, the Star didn't fulfill its objective and thus missed out on what may be the best justifcation for posting such a list -- that it is all inclusive.

So how did this come about? How is it that the employees of one branch of government, the legislative, and the employees of one state university, Ivy Tech, are omitted? Does this mean these positions are not a part of the public state manning tables?

Recall that similar issues have arisen in the past (and continue) in accessing legislative pension information and information about the state's future obligation for paying the lifetime healthcare benefits of retired state legislators, their families, and their staff. These records too are said to be inaccessible as the result of bipartisan agreement.

Posted by Marcia Oddi on Sunday, September 03, 2006
Posted to Indiana Government | Indiana Law | Legislative Benefits

Law - " The Last Stand of the 6-Percenters? "

So reads the headline to this long story today by Damon Darlin of the NY Times. Some quotes:

Redfin and other innovators, including ZipRealty and BuySideInc.com, are using technology to reduce costs and to save time for their brokers. Agents don’t find and recommend homes — customers do that on their own, using Internet listings — and that enables agents to charge less for the services they do provide, chiefly handling the paperwork and negotiations.

The Internet has radically changed the way consumers buy books and airline tickets, trade stock and learn news. But the real estate industry has resisted change — and protected its commission structure — by controlling the information on its Multiple Listing Service database of properties for sale.

“You can find out more on the Internet about an eBay Beanie Baby than you can about a $1 million house,” said Glenn Kelman, chief executive of Redfin, a licensed broker in Washington State and California.

The M.L.S. is the only place that contains nearly all the homes for sale in a community. Only brokers can post there, but agents can also display selected information about a listing on their own Web sites and on Realtor.com, a site that works with the National Association of Realtors.

Traditional agents still firmly control the M.L.S., which allows all participating brokers, including Redfin, to view almost every home for sale in a particular area, even those being offered through competitors’ agencies. But the typical 6 percent commission, paid out of the seller’s proceeds and split between the seller’s and buyer’s agents, is under attack because, as economists note, it does not serve consumers well.

Economists who have studied the current system say that it also does little for most agents — except for a few stars, whose impressive earnings give hope to the large majority of less-successful agents and thus encourage them to protect the status quo. Rivals on the Internet say they do this by refusing to cooperate with buyers using Web-based brokers and by denying M.L.S. information to some online firms.

THEY have not, as yet, fought back by reducing their commissions. And Paul B. Goodrich, the managing director of the Madrona Venture Group in Seattle, an investor in Redfin, says he thinks that they are unlikely ever to do so. “It will be hard for the real estate industry to change the way it compensates its agents,” he said. “If Coldwell Banker announced it was paying 1 percent commission to its agents, there would be a mass exodus.” * * *

In many cities, real estate agents have tried to restrict access to M.L.S. information or to limit its use on the database. Some have asked state legislatures to pass laws forcing brokers to offer certain levels of service, a move that Mr. Kelman sees as intended to squeeze out discount brokers. “It’s a thousand tiny shackles on innovation,” he said. [emphasis added]

The Justice Department and the Federal Trade Commission have fought these tactics in Texas, Kentucky, Tennessee and Oklahoma, among other states, and the department is suing the National Association of Realtors, the powerful trade group of agents and brokers, over what it calls anticompetitive rules. * * *

Some economists wonder why agents fight so hard to maintain this pricing system when it is making so few of them rich. In every housing boom, the number of new agents entering the market tracks the climb in home prices. As a result, the average agent sells far fewer homes and makes less money. On average, agents earn $49,300 a year, according to the National Association of Realtors, and that is before paying for their own health insurance and retirement benefits.

“It’s a case where nobody wins,” Chang-Tai Hsieh, an associate professor of economics at the University of California, Berkeley, said of the current system. Mr. Hsieh, who has studied real estate commissions, said that they did not vary much from 6 percent and did not generally change in good times or bad. He said it was a form of price fixing, but an odd one. “Consumers pay a lot of money, and even the people who do the price fixing don’t win,” he said. “So it is a colossal waste.”

Traditional agents spend very little time brokering a deal, Mr. Hsieh added. Most of their time is consumed looking for new clients, which is of no benefit to consumers. An agent working for a salary, he said, would be freed of the need to prospect and would thus be more inclined to focus on negotiating.

Others agree. Steven D. Levitt, an economics professor at the University of Chicago, found that commissions did not align the interests of agents with those of their customers, a conclusion he recounted in his book “Freakonomics.” The agent has little incentive to get a few thousand dollars more for a homeowner, he wrote, because it will not much improve the commission. It is far more important for an agent working on commission to get the deal done and move on, he added. * * *

Redfin said it planned to use the power of the Internet to personalize listings — if local M.L.S.’s allow it. Sellers, for example, could post online brochures that describe the history of their houses, any improvements made or what makes the homes special to them. Buyers, meanwhile, would automatically get help in searches through software that analyzes their past queries.

(Some local M.L.S.’s are particularly eager to fight one Redfin innovation: a display of how long homes have been listed on the market, a possible tip-off to buyers of an eager seller.)

“If you give people freedom, you can’t take it away,” Mr. Kelman said. “A consumer force has been unleashed.”

Here is a list of many of the earlier ILB entries on the topic of discount brokers.

Posted by Marcia Oddi on Sunday, September 03, 2006
Posted to General Law Related

Law - "New Breed of Lawyer Gives Every Dog His Day in Court "

The NY Times has a story today by Warren St. John on "pet lawyers" that begins:

FOR pigeons in New York City, Bobby, Bertha and Sparky had it pretty good. After being injured in Central Park each was rescued by Gela Kline and Al Streit — founders of a group called Pigeon People — and given a home in the couple’s rent-stabilized apartment on the Upper West Side, where for years the birds passed the time cooing and making music by pecking the keys of a toy piano.

A few years ago, however, the building went co-op, and the new landlords wanted the couple — and their birds — out. They sued to evict, citing an old city ordinance that outlawed chickens, ducks, cows “or any pigeon except Antwerp or homing pigeons” in a New York apartment. Ms. Kline and Mr. Streit thought they were doomed.

Then they called Maddy Tarnofsky, pet lawyer, who quickly spotted a weakness in the landlord’s case: How exactly, she wondered, could the landlord prove that Bobby, Bertha and Sparky weren’t Antwerp or homing pigeons after all?

She soon found one bird veterinarian who would testify that there was no biological difference between Antwerp pigeons and the couple’s birds — or any other pigeons — and another who would testify that the birds could probably be taught to home. The co-op’s lawyer had no response, and on April 27, after four years of legal battles, a housing court judge threw out the suit, allowing the couple and their pigeons to stay put.

More from the story:
Not so long ago there were only a few pet lawyers like Ms. Tarnofsky, and they occupied the margins of the legal world. Because pets are viewed by the law as mere property in most states, and therefore worth only what the owners paid for them, pet lawyers worked with little hope of recovering damages and were motivated solely by their love of animals.

But in recent years, as pet owners have struggled to negotiate pet ownership in modern life, and as society has grappled with questions of the value and status of its domesticated animals, animal law has become a growing specialty in the legal world. A decade ago only a few law schools taught animal law. Today 70 do, including Harvard, Columbia and Duke. In fall 2004 the American Bar Association formed its first committee on animal law, which many say legitimized the discipline.

This ILB entry from Sept. 16, 2005 quoted from a still available piece from Legal Times titled "Law schools see a growing interest in representing creatures that can't speak for themselves."

And who can forget the Supreme Court opinion by Justice Boehm earlier this year in the case of Butchie the Dog? (If you have forgotten, see ILB entries here, here (where the Indianapolis Star reports "A dog named Butchie is at the center of an Indiana Supreme Court ruling reaffirming the right of police to enter outdoor private property and seize evidence that is within public view.") and here.)

Posted by Marcia Oddi on Sunday, September 03, 2006
Posted to General Law Related

Ind. Courts - "If Tippecanoe County's old stone courthouse could talk"

Lafayette Journal-Courier columnist Bob Kriebel writes today about the Tippecanoe County Courthouse. It begins:

If Tippecanoe County's old stone courthouse could talk, it would have 121 years of stories to tell, for it opened in the late winter of 1885 after years of controversy.

Here in diary form are some of the more memorable "courthouse stories" since then:

April 1887: That octagonal artesian well monument you see these days with its statue of the Marquis de Lafayette was placed at the northeast (Fourth and Main) corner of the courthouse grounds.

April 15, 1892: Elias Max, the embattled "architect" of the courthouse, died at 74. He also had been a grocer, builder, contractor and landowner.

Nov. 6, 1894: Woman suffrage advocate Helen Gougar, who had won a slander trial held in the temporary courthouse in 1882-83, made history again. The county election board refused to let her vote in an election because she was female. She filed her $10,000 damage suit in Tippecanoe Circuit Court and, in so doing, is widely considered to have been the county's "first female attorney."

An Indiana Appellate Court judge in 1895 ruled against Gougar's suffrage suit. The judge said he found no Indiana law giving women the power to vote. Gougar pressed on, but argued and lost the case in 1897 before the Indiana Supreme Court.

Ah yes. And today, 109 years later, although women can now vote (and represent over 51% of the country's population), there are no women on the Indiana Supreme Court, and over the entire history of the Court, there has been only one woman justice, who served briefly.

What of the Court of Appeals? There are 15 judges plus the Tax Court judge. Out of the 16 total, 4 are women, 25%.

Posted by Marcia Oddi on Sunday, September 03, 2006
Posted to Indiana Courts

Ind. Courts - More on: $18 million Marion County jury verdict against local law firm

More on Wednesday's story about the Indianapolis law firm hit with an $18 million malpractice judgment. John Ketzenberger, Indianapolis Star business columnist, writes today:

But what happened this week to the folks at Fillenwarth, Dennerline, Groth & Towe is no joke. The future of this venerable labor-law firm is in question after a jury decided it alone was liable for the spectacular demise of a health insurance trust fund in 2002.

The tab: $18 million.

"There but for the grace of God go I," said Brian Burke, chairman of the Baker & Daniels law firm.

If that's what goes through the mind of a lawyer in one of the city's largest firms, you can imagine what those in smaller firms think.

"It's the worst, most god- awful thing I've ever seen," said Bill Hurst, a partner with Mitchell Hurst Jacobs and Dick.

Fillenwarth Dennerline was on the hook because everyone else involved in the collapse of the Indiana Construction Insurance Trust already had settled with the Indiana Department of Insurance.

When the state liquidated the trust, it collected $7 million to pay back the medical claims of 8,200 Hoosiers.

Frederick Dennerline III wanted the law firm's insurance company to settle for $1 million, too, according to a separate lawsuit. He was the attorney for the trust, which was a medical insurance collective of union contractors.

The insurance company refused to settle, the case went to trial and, last week, the law firm and ProNational Insurance Co. were hit with an $18 million judgment.

"Guys like me lose our jobs when we don't settle for $1 million, and then it turns into $18 million," said Jeffrey Goode. He's an attorney and vice president with XL Select Professional in Dallas, which writes malpractice insurance for attorneys.

ProNational rolled the dice when it decided not to settle for the policy's $1 million limit. The gamble left Fillenwarth Dennerline's fate in the hands of a six-person jury, which showed no mercy. It could have spread liability over 50 other people or entities. But the jury put the blame squarely on Dennerline. Snake eyes.

As noted in the earlier Star story:
If the $18 million judgment stands, Hoosier policyholders won't get all the money. Administrative and legal fees must come out of the judgment. [Irwin] Levin and his Indianapolis firm, Cohen & Malad, received 30 percent of the earlier settlements.
Cohen & Malad, apparently rather than the Attorney General's office, represented the state Department of Insurance in this lawsuit. Here is the release from their website:
Cohen & Malad, LLP wins $17,991,043 jury verdict for 8200 Hoosiers who had health care coverage through the Indiana Construction Industry Trust (ICIT).

ICIT became insolvent and was placed into liquidation by the Indiana Department of Insurance in 2002. The Department of Insurance retained Cohen & Malad, LLP to bring claims against those responsible for millions of dollars of claims for health care coverage that had not been paid by ICIT.

Cohen & Malad previously resolved claims against dozens of defendants, but was unable to reach agreement with ICIT’s former counsel, Frederick Dennerline, III and the law firm of Fillenwarth Dennerline, Groth & Towe. Cohen & Malad’s managing partner, Irwin Levin and his partner, Richard Shevitz, presented testimony from Dennerline’s former client, along with testimony from experts, as well as from Mr. Dennerline. At the conclusion of a six day trial before the Honorable Theodore Sosin, a Marion County jury returned a verdict against Dennerline and his firm in the amount of $17,991,043, and completely rejected the defendants’ attempts to apportion fault for those damages among dozens of non-parties.

Irwin Levin explained that “as I said in my closing argument to the jury, I am sad to have to bring a legal malpractice claim against ICIT’s former counsel, but I am sadder for the thousands of Hoosiers who are struggling to pay health care bills as a result of such negligence. We hope this victory will help ease those burdens.”

Posted by Marcia Oddi on Sunday, September 03, 2006
Posted to Indiana Courts

Saturday, September 02, 2006

Courts - More on: "Women Suddenly Scarce Among Justices’ Clerks"

Updating the ILB entry from August 30th, which quoted a Linda Greenhouse NY Times story on the fact that less than 20% of this year's group of U.S. Supreme Clerk's clerks are women, here are several additional items.

Dahlia Lithwick of Slate has an article titled: "Clerked Around: Is there a major girl crisis in Supreme Court hiring?" Here is her final paragraph:

So, the real front-page story, to my mind, isn't whether there is a female clerkship crisis, or even why women won't or don't clerk. This is a process that is completely driven by the whims of the justices. Which suggests that the issue, again, is about the unbelievable lack of diversity in the high court's chambers, and why some of the most important jurists in America—from some "feeder judges" to Justices Kennedy and Scalia—just don't care.
The ILB recommends this entry from Prof. Douglas Berman's Sentencing Law Blog, where he writes:
My PrawfsBlawg post, which focused on the "feeder judge" dynamic, suggested that "the perspectives and insights of the clerks as a group would be greatly enhanced if more came from state court clerkships or district court clerkships or even positions in other government branches.
Edward Lazarus has an article on the subject in this week's Writ, from Findlaw.com.

Posted by Marcia Oddi on Saturday, September 02, 2006
Posted to Courts in general

Ind. Decisions - Has the 7th Circuit created a special doctrine for below-the-age-of-consent teenagers who experience sexual harassment at work?

An article by Hofstra Law Prof Joanna Grossman, published in FindLaw.com's Writ this weekend, is titled "In a Title VII Case, Can a Teenage Employee Consent to Sex With Her Supervisor? The Seventh Circuit Court of Appeals Says No." It begins:

Typically, a sexual harassment plaintiff must prove that her supervisor's advances were "unwelcome." But what if the supervisor had sex with the plaintiff when she was below the age of consent? Must his advances still have been unwelcome? Or in harassment law, as in the criminal law pertaining to statutory rape, is the underage person's attitude toward the sexual conduct irrelevant?

According to the U.S. Court of Appeals for the Seventh Circuit - addressing a claim under Title VII of the Civil Rights Act of 1964, a federal anti-discrimination law that prohibits workplace sexual harassment -- the answer is that an adult's advances to an underage teen need not be unwelcome in order to be actionable.

Under the law of the relevant state, Illinois, the plaintiff in that case was incapable of giving valid consent to sexual intercourse; she was 16 and Illinois' age of consent is 17 (or, in special circumstances, 18). Thus, the sex she had with her supervisor was a crime on his part: statutory rape. Based on this fact, the appeals panel - in an opinion written by noted judge Richard Posner - held that the plaintiff could win her case whether or not she could prove that her supervisor's advances were unwelcome.

The case is Jane Roe v. Oberweis Dairy. The case is mentioned briefly in this ILB entry from July 29th.

Posted by Marcia Oddi on Saturday, September 02, 2006
Posted to Ind. (7th Cir.) Decisions

Ind. Gov't. - "New Albany considering hiring full-time city attorney"

Matt Batcheldor of the Louisville Courier Journal reports today:

New Albany has a part-time city attorney who has too much to do, some residents and City Council members say.

As a result, zoning citations are piling up in the city of about 38,000 people, and some council members believe the situation has the city paying too much for contracted legal services. * * *

But council members disagree on a solution. Four say the city needs to hire a full-time attorney to save money spent on contracted legal services. Council member Dan Coffey introduced an ordinance that would do that.

"It would actually be cheaper for us to have a full-time city attorney than what we're under now," he said.

New Albany is spending $126,510 on legal matters this year, including $41,152 for City Attorney Shane Gibson. Coffey suggested that a full-time attorney could replace contracted work.

Gibson, who works regular hours Tuesdays and Thursdays and attends several city meetings per month, acknowledged that his office is swamped. But he said the solution is to hire a full-time paralegal who could focus on day-to-day citations while he focuses on more pressing matters from the mayor's office.

A paralegal would cost about $35,000 a year, Gibson said.

"I just want the money to hire a competent staff and I haven't been given that opportunity," he said.

Gibson said it is unusual for a second-class city in Indiana such as New Albany not to have more legal staff. Jeffersonville, which is a smaller third-class city, has two part-time attorneys, a paralegal and another staff person, he said.

Posted by Marcia Oddi on Saturday, September 02, 2006
Posted to Indiana Government

Ind. Courts - Hammond Judge announces bid for re-election

The Munster (NW Indiana) Times reports today, in a story by Steve Zabroski:

After five years of running the state's busiest municipal court, Judge Jeffrey Harkin says he's ready for four more.

Harkin, 54, on Thursday announced his bid for re-election.

More than 24,000 traffic tickets, ordinance violations, misdemeanor cases and civil filings were heard in Hammond City Court in 2005, and Harkin said the numbers are on a pace to exceed 30,000 this year.

But Harkin said it's his reputation of meting out fair and equal justice, and his encouragement of community involvement in his courtroom, that are the most significant accomplishments during his tenure.

His graffiti-removal program has erased more than 10,000 incidents of tagging, and his community service sentences for minor offenders have totaled more than 7,500 hours per year spent cleaning up publicly owned properties in the city.

Posted by Marcia Oddi on Saturday, September 02, 2006
Posted to Indiana Courts

Friday, September 01, 2006

Ind. Decisions - Transfer list for week ending September 1, 2006

Here is the Indiana Supreme Court's transfer list for the week ending September 1, 2006.

Over two and a half years of Transfer Lists: For other weekly transfer lists (going back to Feb. 2, 2004), check "Indiana Transfer Lists" under "Categories" below, or in the right column.

Posted by Marcia Oddi on Friday, September 01, 2006
Posted to Indiana Transfer Lists

Ind. Decisions - List of Court of Appeals NFP opinions issued for week ending September 1, 2006

Here is the Indiana Clerk of the Court's list of the Disposition of Cases by Unpublished Memorandum Decision [the Not for Publication (NFP) opinions list] issued by the Court of Appeals for the week ending September, 2006.

Posted by Marcia Oddi on Friday, September 01, 2006
Posted to NFP Lists

Ind. Decisions - Court of Appeals issues 3 today (and 5 NFP)

For publication opinions today (3):

In Danny W. Ramsey v. State of Indiana, a 20-page opinion, Judge Baker concludes:

In light of the above conclusions, we find that the evidence was sufficient to support the habitual offender finding and that the trial court did not err in combining the habitual offender and aggravating circumstances phases of the trial. We also find that the prosecutor did not commit misconduct and that the trial court did not err in denying admitting evidence obtained during the controlled buys and from a search of his home. The judgment of the trial court is affirmed.
In Roy Truitt v. State of Indiana, a 7-page opinion, Judge Baker writes:
Appellant-petitioner Roy Truitt appeals the summary denial of his petition for post-conviction relief regarding his challenge to the effectiveness of counsel at his probation revocation hearing. Specifically, Truitt contends that the post-conviction court erred in denying his petition without a hearing on the merits of his claims. Concluding that the summary denial of Truitt’s petition for post-conviction relief was error, we reverse and remand for a hearing on the merits.
In Andrew G. Steele v. Department of Workforce Development and Harrison Healthcare, a 6-page opinion, Senior Judge Garrard writes:
After he was discharged by Harrison Healthcare, Inc., Steele applied for unemployment benefits. A deputy determined Steele was eligible. On appeal an administrative law judge reversed the finding having determined that Steele was discharged for refusing to obey instructions and for just cause. The Review Board affirmed without further hearing, and this appeal followed. * * *

On appeal Steele, now represented by counsel, contends that Steele failed to receive a hearing that comported with the requirements of Ind. Admin. Code tit. 646, § 3-12-3(b) and Flick v. Review Board, 443 N.E.2d 84, 87 (Ind. Ct. App. 1982). * * *

In Flick v. Review Board, 443 N.E.2d 84, 87 (Ind. Ct. App. 1982) this court held that the regulation imposes an affirmative duty upon the ALJ to see that an unrepresented claimant is afforded the opportunity to fully present his case. See, also, Thomas v. Review Board, 543 N.E.2d 397, 400 (Ind. Ct. App. 1989). * * *

From the foregoing we are forced to conclude that the ALJ failed in his duty to see that Steele was given the opportunity to fully present his case. Therefore, in accord with Flick we reverse and remand with instructions that Steele be given a new hearing consistent with the requirements of 646, § 3-12-3(b).

NFP civil opinions today (2):

In the Matter of: M.D., N.D., L.H., H.S., and S.S. (NFP) - "Concluding that the evidence was sufficient to support the CHINS determination, we affirm the judgment of the juvenile court."

In Gary O. Bovey, Tara Bovey, and Perfection Painting Unlimited, LLC v. Ross A. Nichols, Sharon K. Nichols, and Perfection Enterprises Inc. (NFP), an 18-page opinion, Judge Bailey writes:

On June 10, 2005, the trial court granted Perfection Enterprises’s petition for a preliminary injunction and enjoined Appellants “from using the name ‘Perfection Painting Unlimited, LLC’ or other name that would reasonably confuse their services and business with that of [Perfection Enterprises] during the pendency of this action.” * * * Affirmed.
NFP criminal opinions today (3) (link to cases):

In Jeryl Bingham v. State of Indiana (NFP), a 10-page opinion, Judge Baker concludes:

As in Marcum, there was no basis for the trial court here to impose consecutive sentences upon Bingham, given the absence of aggravating circumstances and the existence of one mitigating circumstance. As a result, we are compelled to vacate Bingham’s sentences and remand this case to the trial court with instructions that it impose concurrent sentences on all counts.
James A. Alcorn, II v. State of Indiana (NFP)

Lee Madison v. State of Indiana (NFP)

Posted by Marcia Oddi on Friday, September 01, 2006
Posted to Ind. App.Ct. Decisions

Ind. Law - "State next-of-kin law challenged"

"State next-of-kin law challenged: Confessed killers shouldn’t get bodies, legislators told" is the headline to an AP story today in the Fort Wayne Journal Gazette. The story begins:

INDIANAPOLIS – After Linda Young’s daughter and grandson were murdered in 2005, control of their bodies went to their next of kin – a man who was also their killer.

Zachariah Melcher of Jeffersonville was sentenced last month to two consecutive life sentences in the death of his pregnant wife, 23-year-old Christian Melcher, and their 11-month-old son, Jaiden.

Young, who had to get permission from Melcher to bury her daughter and grandson, urged lawmakers Wednesday to change state law so that the surviving spouse would not be considered next of kin if that person confesses to murdering their husband or wife.

“I’m hoping to help future families to not have to go through what we had to go through,” Young said. “I’m asking you to put yourself in my shoes. I’m asking you what would you do if it were your daughter?”

The Interim Study Committee on Criminal Justice Matters is considering a proposal by Sen. Connie Sipes, D-New Albany, to change the law.

Posted by Marcia Oddi on Friday, September 01, 2006
Posted to Indiana Law

Ind. Courts - "Contractor files lawsuit over courthouse work"

Kristin Miller of the Michigan City News-Dispatch reports:

LaPORTE - LaPorte County is being sued by the South Bend contractor doing $2.7 million in restoration work on the county courthouse in LaPorte.

At Monday's LaPorte County Council meeting, Commissioners President Marlow Harmon told council members that Ziolkowski Construction Inc. filed a $498,000 lawsuit last week, claiming breach of contract for denying a change order.

“The lawsuit comes from damage they found after sounding,” Harmon said Wednesday morning. Sounding is a process where a worker lightly taps the courthouse's exterior stone with a small hammer to listen for hollow or sturdy sounds.

“It was damage that could not be seen with the naked eye,” said Harmon.

The breakdown in Ziolkowski's request includes $192,000 for the lower part of the building, $250,000 to repair damage in the upper tower and an additional $49,000 for extra scaffolding to get to the top.

Ziolkowski's has twice requested the extra money, but each time it was tabled by the Commission.

Contacted Wednesday, Ziolkowski executives would not comment about the case, but according to the lawsuit, Ziolkowski first performed a sounding process and then removed the mortar joints to determine the areas in which stone required patching.

“The extent of the damage was not known, and could not have been known, until Ziolkowski had erected scaffolding and performed the sounding process over the entire exterior of the building and removed the mortar joints,” the lawsuit said.

“No reasonable bidder would have erected the scaffolding and performed the sounding process over the entire exterior of the building prior to submitting a bid, nor was the erection of such scaffolding and sounding possible pre-bid.”

Lawyers who specialize in contract litigation will be brought in to assist county attorneys in the case, said Harmon, who added he is not surprised by the suit.

“When we turned it down, we felt a lawsuit would be filed,” he said. “They are contending that we violated the contract.”

While the litigation continues, Ziolkowski will continue to work on the courthouse.

“They said they would not sacrifice the quality of the building,” Harmon said. “As things play out, we'll find out whether or not we violated the contract.”

Posted by Marcia Oddi on Friday, September 01, 2006
Posted to Indiana Courts

Ind. Decisions - More on: "New trial ordered for woman convicted in triple slaying"

Yesterday's opinion in Charity L. Payne v. State of Indiana (access the ILB entry here - 2nd opinion) is the subject of an extended story this morning in the South Bend Tribune, written by Martin DeAgostino and Jeff Parrott. Some quotes:

The Indiana Court of Appeals has ordered a new trial for Charity Payne, who is serving a consecutive 145 years for her role in a triple murder that shocked St. Joseph County in 2000.

The appeals court said improper evidence was admitted at Payne's trial, including information she gave to police during a long interrogation without being advised of her right to an attorney and to not speak. * * *

According to the Appeals Court, Payne's confession occurred during a "custodial interrogation" at the South Bend Police Department that lasted 11 hours. But it was only after the first seven hours that police told Payne of her rights to legal counsel and to silence.

Payne was not under arrest during questioning. But the Appeals Court said police should have read Payne her rights because she was treated in a way that she would not believe she could leave.

On Payne's appeal, lawyers for the state said the evidence either caused no harm to Payne's case or was introduced by mistake. But the unanimous Appeals Court rejected both arguments and said use of the evidence was an abuse of discretion by St. Joseph Superior Court Judge William Means.

That term means the decision was "clearly against the logic and effect of the facts and circumstances before the court."

The Appeals Court reached the same conclusion about Payne's letter, a "rambling," "stream of consciousness" account of how a particular business could be robbed.

Prosecutors introduced the letter at trial as evidence of intent. But the Appeals Court said Payne had never claimed a "contrary intent," which is the only time that evidence of "prior bad acts" is relevant.

In contesting the appeal, deputy attorney general J.T. Whitehead had argued that Payne, through testimony from a doctor who examined her, claimed she was naive and easily influenced -- findings her letter would contradict.

But Judge Means had excluded the doctor's testimony, meaning it was never heard by the jury.

"We would encourage the state to actually read the trial transcript," the appeals court wrote.

On a third issue, the court said videotaped testimony by one of Payne's codefendants represented inadmissible hearsay evidence, meaning Payne's attorneys could not question him.

On the tape, defendant Ronald Carter walked police through the burglarized residence and provided a graphic description of the murders. But he never mentioned Payne and, according to the Appeals Court, the tape provides no evidence that the burglars followed Payne's instructions.

"The only purpose the (tape) served was exposing jurors to a vivid description of a horrific and senseless crime and have it infer guilt back on Payne," the court wrote.

Should Dvorak end up retrying a Toth administration case whose guilty verdict was overturned by a higher court, it won't be the first time. He also had to retry Wayne Kubsch, scoring another conviction, but came up short in the retrial of Christopher Allen, who is accused of the 1990 Osco Drug store killings. That case ended in a mistrial this summer because the jury could not reach agreement. Dvorak has yet to decide whether to try Allen again.

"It seems like a lot of cases coming back, but that's something that's our responsibility," Dvorak said. "We won't shy away from that, and we'll go forward."

Posted by Marcia Oddi on Friday, September 01, 2006
Posted to Ind. App.Ct. Decisions