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Monday, October 30, 2006

Ind. Decisions - "Gary's gun lawsuit dodges a bullet"

"Gary's gun lawsuit dodges a bullet: Lawsuit is one of three remaining nationwide" was the headline Saturday, Oct. 28, to a comprehensive story in the Gary Post-Tribune by Andy Grimm reporting on a ruling by Lake Superior Court Civil Division 5 Judge Robert Pete:

The city's lawsuit against gun makers and local dealers received a boost this week when a Lake County judge ruled a year-old federal law shielding gun makers from lawsuits is unconstitutional.

In a strongly worded opinion, Lake Superior Court Judge Robert A. Pete denied gun makers' request to dismiss the lawsuit filed by Gary seven years ago that alleges gun makers do little to control the flow of handguns used in crimes.

The federal Protection of Lawful Commerce in Arms Act, passed last year with backing from the gun industry in response to a wave of lawsuits similar to Gary's case, would deprive the city of its rights of due process, Pete said.

"Our Supreme Court has long recognized laws that are applied retroactively and ... serve as a deprivation of our existing rights are particularly unsuited to a democracy such as ours," Pete wrote.

Though gun makers are almost certain to appeal, city attorney Tony Walker said Pete's ruling should allow the city to begin requesting internal documents and records from the 16 gun makers named in the suit.

"We are moving into an aggressive litigation standpoint," said Walker, who is working on the case with help from the Washington, D.C.-based Brady Center.

"We want to start deposing (gun company) executives and getting to the heart of how guns get onto the streets of Gary."

Gary's lawsuit is one of three remaining cases filed by U.S. cities against gun manufacturers, most of them filed in the late 1990s with the help of Brady Center attorneys. About a dozen cases have been dismissed since the federal shield law was passed a year ago, said attorney James Dorr, who represents Connecticut gun maker Sturm Ruger Co.

"With all due respect to Judge Pete, we think (the ruling) is an error," Dorr said. "Every other court to consider the constitutionality of this act has considered it constitutional."

Gary's suit already has survived challenges that have carried the case all the way to the state Supreme Court, and state legislation that gave immunity to gun dealers.

Gary was one of more than 20 cities that filed lawsuits against gun makers and dealers during the late 1990s. Gary and four other cities still have cases pending before the courts, while the rest were dropped or dismissed because of state or federal immunity laws adopted after they were filed.

The case rises out a series of sting operations carried out by Gary police during the 1990s, where undercover officers made "straw" purchases of handguns at eight local gun dealers. Hidden cameras recorded the vendors sold guns to the officers who said they were buying the guns to resell them on the street.

From 1996 to 2000, trace data compiled by the Americans for Gun Safety Foundation showed that the eight local dealers named in the suit sold 3,482 guns that were used in crimes.

Westforth Sports in Gary sold nearly 700 crime guns during the period, ranking it among the top 20 sellers of crime guns in the country.

"The gun makers, and certainly the dealers, are aware of the numbers," said Brian Siebel, an attorney for the Brady Center.

"Alarm bells should have been going off, and while this case has been pending, they still have done nothing to keep from funneling guns into the hands of criminals."

Although the Post-Tribune story appeared Saturday, the decision apparently was issued Tuesday, Oct. 24th and the story has not been picked up in any other papers. The ILB has located three press releases on the ruling, from the Brady Campaign to Prevent Gun Violence on Oct. 25th and Oct. 26th, and from the National Shooting Sports Foundation (NSSF) on Oct. 26th. Here is the Oct. 26th Brady release:
WASHINGTON, Oct. 26 /U.S. Newswire/ -- In a landmark ruling with nationwide implications, Lake County, Indiana Superior Court Judge Robert A. Pete on Monday declared unconstitutional a 2005 federal law backed by the gun lobby that sought to limit the legal liability of gun dealers and manufacturers in the case of City of Gary v. Smith & Wesson et al.

The ruling held that the so-called "Protection of Lawful Commerce in Arms Act" (which became effective exactly one year ago today) violates the U.S. Constitution's guarantees of Due Process and Separation of Powers. It allows Gary, Indiana's lawsuit against sixteen gun manufacturers and six northern Indiana gun dealers to proceed toward trial. Cases pending in New York, Massachusetts, Pennsylvania, Washington, D.C., and other states have raised similar challenges to the constitutionality of the law, but this is the first court to find it unconstitutional. Lawyers from the Brady Center's Legal Action Project represent Gary in the case.

The court held that the law "is clearly an act which was passed in response to pressure from the gun industry." The court ruled that "laws that serve as a deprivation of existing rights are particularly unsuited to a democracy such as ours."

The case, originally filed in August 1999, was based on a sting conducted by Gary police of northern Indiana gun dealers that, between them, supplied more than 60 percent of the crime guns recovered in Gary. The dealers' sales to undercover officers posing as "straw purchasers" were captured on videotape before the suit was filed, and confirmed the dealers' gross misconduct in supplying the underground market. Gary also sued the major gun manufacturers who sold handguns through these dealerships and profited from the diversion of guns to criminals.

"This is an important victory not only for the citizens of Gary and the people of Indiana but for the entire country. This is a significant and proper ruling on this legislation, which the Brady Center has been arguing is unconstitutional since it was enacted a year ago," said Paul Helmke, President of the Brady Center, and former Mayor of Fort Wayne, Indiana. "The gun pushers used their influence in Congress to change the rules, because they fear accountability for their practices. Now, those moves have been declared unconstitutional."

Tony Walker, of the Walker Law Group in Indiana, and Robert S. Peck of the Center for Constitutional Litigation, serve as co-counsel with the Brady Center in the case.

In December 2003, the Indiana Supreme Court ruled unanimously that Gary's allegations that "(1) dealers engage in illegal sales, and (2) the distributors and manufacturers know of their practice and have it within their power to curtail them but do not do so for profit reasons ... state a 1/8public nuisance 3/8 claim" under Indiana law, and sent the case back to the trial court. However, after President Bush signed the gun industry- backed shield law in October 2005, the gun manufacturer defendants in the Gary case filed a new motion to dismiss.

This is the fourth case brought by the Brady Center in which courts have ruled that the suits can proceed despite the new legal shield law. For example, in December of last year a Federal judge in New York allowed New York City's similar lawsuit against the gun industry to proceed. It is the first case, however, in which the new statute has been found to violate the U.S. Constitution.

Federal data shows that about one percent of the nation's gun dealers supply 57 percent of the guns traced to crime.

Indiana Daily Insight has had two reports on the ruling.

Here is a list of links to some of the earlier ILB entries on the Gary gun suit, dating back to 2004. This entry from Feb. 12, 2004 goes back even further, linking to 2003 entries.

Can you help? This is an important trial court decision that has not had much attention to date. The ILB would very much like to post Judge Pete's decision -- if you can help please let me know.

Posted by Marcia Oddi on Monday, October 30, 2006
Posted to Ind. Trial Ct. Decisions

Ind. Decisions - Verdict in Behrman case

Dick Kaukas reports in the Louisville Courier-Journal this evening:

MARTINSVILLE, Ind. — It took jurors less than an hour Monday to decide that the man charged with the murder of Jill Behrman was guilty. The verdict was announced at 6:25 p.m.

When the judge read the jury’s verdict, there was no visible reaction from John Myers II or his mother, Jodie, and his two brothers, Sam and Lucas, seated behind the defense team. * * *

Earlier, the six men and six women on the jury listened to dramatically different theories of the evidence as the prosecution and defense teams presented closing arguments.

Myers’ lawyer, Patrick V. Baker, contended that the prosecution case was weak, that there was no physical evidence trying Myers to the death and that the charges were based on speculation and conjecture.

Baker said he believed the evidence in the case is sufficient to raise reasonable doubts about Myers’ guilt in the minds of jurors.

Morgan County prosecutor Steve Sonnega, however, presented witnesses who testified that Myers made incriminating statements to them and had information about the case that only the murderer could have known.

Sonnega acknowledged that there was no DNA, other physical evidence or eyewitness testimony linking Myers to Behrman. But he contended that Myers was upset about breaking up with a girlfriend and that he took his anger out on Behrman by abducting and killing her.

The case has attracted national interest, in part because it took so long to find Behrman’s body. It was discovered by hunters in March 2003.

Testimony at the trial revealed for the first time that she had been killed by a shotgun fired at the back of her head.

The defense, which has contended Behrman may have been pregnant when she was killed, rested Friday after calling only two witnesses.

Judge Christopher Burnham delayed the start of opening arguments Monday morning so he could question jurors.

Burnham did not say what he was asking the jurors about. He said only that it was his job to ensure that jurors were not exposed to any improper outside influence.

Here is the beginning of the Indianapolis Star report by Tom Spalding and Tim Evans, which has been updated throughout the day:
A Morgan County jury tonight found John Myers II guilty in the death of Jill Behrman, the Indiana University student who disappeared on a bicycle ride six years ago.

Myers claimed he was innocent of the murder, and his attorney maintained that the state had only circumstantial evidence to link his client to the crime.
But prosecutors successfully argued that no one but the killer could make as many references to the Behrman case as Myers did with family and friends. Several family members testified against him.

Here is the late evening version of the same story, including talks with jurors.

Posted by Marcia Oddi on Monday, October 30, 2006
Posted to Ind. Trial Ct. Decisions

Friday, October 27, 2006

Courts - More on Running for Judge in Kentucky

Brandon Ortiz, writing in the Lexington KY Herald-Leader, in a story headlined "High court race often has partisan flavor", reports:

At times, the race for Central Kentucky's seat on the Supreme Court has been a scholarly discussion on legal issues.

At other times, the ostensibly non-partisan contest has all the name-calling and accusations that have come to define partisan elections.

At candidate forums, Justice John Roach talks about his love of the law, his relationship with other justices and his judicial philosophy, which he describes as "textualism framed by original understanding." But the campaign of his opponent, Judge Mary Noble, has reminded reporters that he was a political operative for failed Lexington mayoral candidate Scott Crosbie and Gov. Ernie Fletcher.

Noble has touted her experience of 14 years on the Fayette Circuit Court and three years as a domestic relations commissioner, where she heard divorce and adoption cases. She considers her role in founding the Fayette Drug Court program her greatest achievement.

But Roach and several state prosecutors have pointed to rulings where they say Noble misapplied the law in favor of defendants.

Justice Roach

Roach, 39, who graduated in the top five of his class at the University of Kentucky law school in 1992, is prone to long, detailed answers to questions.

Shannon Ragland, who went to law school with Roach and now edits Kentucky Trial Court Review, says he is the brightest mind among the Supreme Court justices.

"He is probably running circles around them intellectually," Ragland said.

Noble, 57, a former English teacher, is more plain-spoken and occasionally employs a sharp wit.

At a candidate forum, she referred to a Roach ad that said the justice wears a robe to work. "I usually wait to get to work before I put mine on," Noble quipped.

Roach has been on the high court 15 months, while Noble has been on the Circuit Court since 1992. Roach says, however, that as an attorney he argued twice before the Supreme Court, while Noble never did.

Roach, a former clerk for a U.S. Court of Appeals judge, has practiced law in Washington D.C. and Lexington. He handled corporate transactions and represented plaintiffs in civil rights and employment discrimination cases.

But Roach is better known for having managed Crosbie's 2002 mayoral campaign and Fletcher's congressional re-election effort in 2000, as well as working for the gubernatorial campaign in 2003.

Before being named to the Supreme Court in June 2005, Roach served as the Republican governor's chief legal adviser. Two former officials have said they had warned Roach about potentially improper hirings in the Transportation Cabinet.

On a campaign door hanger, Noble hinted at the merit hiring scandal that mired Fletcher's administration. The hangers were recently placed on homes in Frankfort, which has a high percentage of state workers.

"Fletcher appointed his inexperienced General Counsel, John Roach to the Supreme Court of Kentucky," the hanger states. "Passing over Judge Mary Noble ... WHY? Because Judge Noble's record stands up for all Kentuckians, based on MERIT; not who their friends are."

Roach said the Supreme Court is not divided on political lines but rather on judicial philosophy.

He noted that several prominent Democrats, such as Attorney General Greg Stumbo, are supporting him. The Commonwealth's Attorneys Association and state Fraternal Order of Police have both endorsed Roach.

Roach has a pending legal malpractice lawsuit filed in 2001 in Pikeville. Jamie Hamilton claims that Roach botched a legal malpractice case for his deceased grandfather, John Hamilton. He also says Roach failed to name a legal expert and dismissed part of the case without consulting the family. Roach said the lawsuit is without merit.

Judge Noble

Noble has had several careers: high school English teacher, guidance counselor, college psychology instructor, lawyer and judge.

As a lawyer, Noble represented school boards, plaintiffs and criminal defendants.

Noble said she helped found Lexington's drug court program in 1996. Rather than locking addicts in jail, the program requires drug users to attend treatment, stay drug-free, and hold jobs or take classes. Unlike typical probation, drug users must regularly meet with a judge to assess their progress.

Noble's inspiration for drug courts came after a large drug bust in 1995. As she arraigned drug addicts, Noble was struck by how many users were poor and likely to use drugs again, she said. She began to research the issue and learned about drug court programs in California and Florida.

"I really do believe that God puts you in the right place and the right time to do things," she said.

The program has been praised by researchers, state officials and some prosecutors for helping addicts overcome their addiction and stay out of jail -- ultimately saving taxpayers money, they say. But it has not gone without criticism.

Fayette Commonwealth's Attorney Ray Larson, a Roach supporter, says the program does a poor job of screening potential participants.

"It was originally intended for people who were basically drug addicts," Larson said. "Now it's not uncommon for offenders with violent and lengthy records to be placed in the program. We're concerned about that."

But Larson says the program has been "very, very helpful for 10 to 20 percent in it."

Noble, four judges and a Supreme Court justice were privately admonished by the Supreme Court because of a Lexington expense account for judges, according to Noble's application to the judicial nominating commission. Some judges had used the fund for office expenses, meals, baseball tickets and other items. Noble drew on the account to buy employees gifts.

The judge acknowledged that the $1,800 annual fund, a holdover from when city and county governments ran the courts, had been used improperly. It was abolished after news reports in 1999.

Roach says some of Noble's rulings have incorrectly favored defendants over prosecutors. With Noble, her reversals "tend to be where a criminal defendant has been given more than they were ever required to get under the law," he said. Noble's campaign manager dismissed any claims that she is soft on crime.

"John Roach has not put one criminal in jail while Judge Noble has put thousands of criminals in jail," campaign manager Dea Riley said.

Gordon Shaw, commonwealth's attorney for Bourbon, Scott and Woodford counties, said that Noble's critics are unfairly cherry-picking rulings she has made over a long career. Every case has its nuances and specifics, Shaw said, making it impossible to say a handful of rulings is representative of a judge's philosophy.

"If it is pulled out of context, it can look like an idiotic view," said Shaw, a Noble supporter. "I don't think anybody else would like to be held to that same standard."

Posted by Marcia Oddi on Friday, October 27, 2006
Posted to Courts in general

Courts - Roll Call Newspaper on state supreme court races

Louis Jacobson, Deputy Editor of Rollcall, writes: "Here's my latest Out There column -- a roundup of state supreme court races, which are a big target for pro-business interest groups." Here is the column, dated Thursday, Oct. 26, 2006 and headed "Business Groups Spend Freely, Gain Ground in Judicial Contests." (Indiana is not mentioned, as there are not contested appellate judicial races here, but rather retention elections.)

In recent years, state courts have become hotly contested turf for powerful national interests. Business groups and trial lawyers have fought over curbing legal liability and government regulation, while pro-business conservatives have battled religious conservatives.

This year, 16 states will hold Supreme Court elections, and five of them — Alabama, Georgia, Kentucky, North Carolina and Texas — will see the majority of their high court seats up for public approval.

Through Oct. 22, total spending for primaries and general election races nationwide has been $8.3 million. Of this total, Alabama’s contests have accounted for $4.2 million, followed by Washington state elections (a little more than $1 million) and Ohio (just under $1 million), according to New York University’s Brennan Center for Justice and the Justice at Stake Campaign.

These figures are up slightly from the amounts spent through this point in 2004, but the final totals — which won’t be available until well after Election Day — may not set a new record. That’s because the 2004 contests included an unusually hard-fought race in Illinois that ended up costing $6.8 million.

Still, several states are on a pace to set new one-cycle spending records. Moreover, spending on advertising for primary contests reached $3.5 million this cycle — up from $96,000 just four years ago.

Outside interest groups have been funding the advertising that drives these races in ever-larger amounts. While interest groups have been deeply involved in judicial races for several cycles, their share of money spent — compared to candidates and parties — is increasing.

Of the total amount spent through Oct. 22, 55 percent has been funded by candidates and 45 percent was spent by what the Brennan Center classifies as “special interests.” That’s up from 30 percent in the full 2004 cycle. Parties have spent less than 1 percent.

Alabama, Georgia, Kentucky, Michigan, North Carolina, Oregon and Washington are all outpacing spending on television advertising from this time in the 2004 campaign cycle.

“At this point, I would have to characterize the vast majority of spending as coming from the business community,” said Jesse Rutledge, a spokesman for Justice at Stake, which is funded by the Carnegie Corporation, the Joyce Foundation, the Open Society Institute and the Public Welfare Foundation.

“It’s been an interesting dynamic to watch unfold. We’ve seen a gradual shift away from a fairly vigorous and balanced back-and-forth between business on one side and trial lawyers and unions on the other,” Rutledge said. “Now we’re seeing a growing disparity, with business rapidly outspending trial lawyers.”

Larry Akey — the executive director for communications with the U.S. Chamber Institute for Legal Reform — said his group “will spend somewhat north of $15 million” on a combination of state Supreme Court races and state attorney general campaigns. But the group, as in the past, will not say publicly which states or races it is entering — and that information is not easy to find. Most states have few disclosure requirements for funding in judicial races.

According to the Brennan Center and Justice at Stake, some of the leading business spenders so far have been the American Taxpayers Alliance, which spent almost $1 million in Alabama; the Partnership for Ohio’s Future, which spent almost $770,000; It’s Time for a Change, which spent about $465,000 in Washington; and Americans Tired of Lawsuit Abuse, which spent roughly $362,000 in Washington. These opaquely named groups have ties to Chamber of Commerce affiliates, the building industry and other pro-tort-reform organizations.

The Association of Trial Lawyers of America did not return a telephone call, but one liberal activist said that on the left, “money is tight everywhere, especially for national organizations that are spread thin on so many important candidate races this cycle.”

Another reason may be that business groups have done so well in recent years. The Institute for Legal Reform got involved in 13 judicial races in 2004 and won 12 of them. That’s roughly on par with the institute’s win-loss record since 2000, which is 80 percent to 90 percent.

In states such as Alabama and Ohio, prior judicial campaigns already succeeded in tilting the courts heavily toward conservatives. Given this reality, Rutledge suggested, funding a rear-guard action to preserve a liberal judge or two becomes a less-attractive way to spend scarce resources.

Probably the most notable example of liberal activism this year came in Washington state, where labor unions, environmental groups, Indian tribes and trial lawyers aligned with Gov. Christine Gregoire (D) to form Citizens to Uphold the Constitution. This group spent almost $230,000 to help boost an endangered incumbent, Chief Justice Gerry Alexander. Alexander survived a primary against attorney John Groen.

Fundraising by candidates is also up this year. Of the states with contested Supreme Court elections, four have already broken aggregate candidate fundraising records — Georgia, Kentucky, Oregon and Washington.

In Illinois, the opposing candidates for an appellate court judgeship have already set a record for fundraising below the Supreme Court level. GOP incumbent Steve McGlynn has raised $1.2 million, and Democratic challenger Bruce Stewart has raised $600,000.

Just about the only roadblock for pro-business groups is a rough political environment for their allies in the GOP. “I think we’ve been successful in identifying opportunities and protecting our gains, but there are a lot of dynamics in the air this fall, and we have to see how they’re going to play out,” said Tiger Joyce, president of the American Tort Reform Association, who remains optimistic.

Here is a rundown of key state Supreme Court elections:

Alabama. In a contentious GOP primary between social conservatives and pragmatic conservatives, Chief Justice Drayton Nabers held off a stiff challenge from social conservative Tom Parker, a fellow Supreme Court justice. Now, however, Nabers faces an unexpectedly tough challenge from Democrat Sue Bell Cobb, a judge on the state Court of Criminal Appeals. Though Nabers spent freely in his primary race, Cobb has outspent him 2-to-1 since Sept. 15.

Political action committees linked to tort-reform groups have given generously to Nabers, while law firms and teachers unions have given significantly to Cobb.

“I expect this campaign to be the most expensive in the country when all is said and done,” Rutledge said.

Three other incumbents on the Supreme Court face competition in the general election.

Georgia. The marquee race in the Peach State pits incumbent Justice Carol Hunstein and challenger Mike Wiggins.

Hunstein was named to the Supreme Court in 1992 by then-Gov. Zell Miller (D). Hunstein’s campaign Web site cites an ideologically diverse array of supporters, from liberal Rep. John Lewis (D) and Atlanta Mayor Shirley Franklin to conservatives Miller and former state Attorney General Mike Bowers (R).

Wiggins was most recently a Bush administration appointee at the Department of Justice and the Department of Homeland Security.

Kentucky. Almost all of the state’s circuit, district and appellate judgeships will be up for election this year, including five of the seven Supreme Court seats. The state judicial fundraising record has already fallen, and the allegations are becoming nasty.

The most-watched contest pits incumbent Justice John Roach against Circuit Judge Mary Noble. Roach was appointed by Gov. Ernie Fletcher (R). The Noble camp has attacked what it calls a push poll that may have suggested to respondents that Noble is a lesbian because she has been married for 38 years without any children. And Roach’s ties to Fletcher, who has faced a widening state-hiring scandal, have drawn fire.

In another Supreme Court contest, Justice William McAnulty will have to defend his seat after being appointed this summer as the first black justice on the court. He faces Judge Ann O’Malley Shake, who would become the only woman on the court. McAnulty narrowly defeated Shake in the nonpartisan primary.

Washington. Justice Susan Owens won 46 percent in a five-way primary — short of the 50 percent needed to avoid a runoff — and now must face the second-place finisher, state Sen. Stephen Johnson (R), who got 35 percent.

As with the Alexander-Groen primary, this one is expected to be a battle between the building industry and a left-of-center alliance. But gay rights, stem-cell research and the minimum wage have also come up in the campaign.

Nevada. Incumbent Justice Nancy Becker is being challenged by District Court Judge Nancy Saitta. Advertisements by Nevadans Against Judicial Activists have attacked Becker’s support for a Supreme Court ruling that allowed the Legislature to raise taxes.

Ohio. Incumbent Justice Terrence O’Donnell (R) faces Judge William O’Neill (D), who has made an issue of O’Donnell’s acceptance of money and support from business interests. In a lower-profile race, Democratic attorney Ben Espy and Republican appeals Judge Robert Cupp will face off for an open seat.

Oregon. Court of Appeals Judge Virginia Linder faces former Lane County Commissioner, state labor commissioner and frequent Republican candidate Jack Roberts in the first open-seat race for the Supreme Court in six years. Though Linder has key Democratic endorsements in this Democratic-leaning state, Roberts has taken an early lead in fundraising.

Texas. Five of the nine seats on the state’s highest (and Republican-dominated) court for civil cases are up this fall. The only contest with both a Democrat and a Republican running has incumbent Justice Don Willett (R) facing District Judge Bill Moody (D).

North Carolina. A majority of Supreme Court seats will be up for grabs on Election Day. Chief Justice Sarah Parker and associate justices Patricia Timmons-Goodson and Mark Martin will defend their seats, while Court of Appeals judges Robin Hudson and Ann Marie Calabria vie for an open seat.

Posted by Marcia Oddi on Friday, October 27, 2006
Posted to Courts in general

Ind. Courts - "Indiana Right to Life Urges Voters To Vote No On All Judicial Retention Questions"

Indiana Right to Life sent out a press release October 25 "urging Indiana voters to oppose the retention of every judge up for retention on Indiana ballots this fall due to judicial histories that indicate judicial philosophies hostile to traditional values." More:

Included on this list of six judges is Supreme Court Justice Frank Sullivan, Jr., who wrote the majority opinion in a 2003 decision (Humphreys v. Clinic for Women) that expanded Medicaid funding for abortion in Indiana. Also included is Judge of the Indiana Court of Appeals, Third District, Judge Terry Drone who recently blocked the Indiana Attorney General's office from accessing Planned Parenthood records on minors in an investigation on whether child sexual abuse is being properly reported. Of the six judges up for retention, five were appointed by Governor Evan Bayh and one by Governor Joe Kernan.

To help educate voters on the judicial histories of the judges, Indiana Right to Life PAC is posting information on its web page at www.candidatesurveys.com.

Indiana voters in the dark on judges

In addition to calling for the rejection of all judges up for retention, Indiana Right to Life is lamenting the fact that the Indiana Judicial Qualifications Commission prohibits judicial candidates at all levels from completing candidate surveys. A 2004 suit filed by Indiana Right to Life against this prohibition of judicial surveys (Indiana Right to Life v. Shepard) has yet to be decided.

"Incumbent judges in Indiana are currently shielded by a prohibition on judicial surveys and by a retention system that asks Indiana voters to make decisions without full information on how these judges rule from the bench," notes IRTL-PAC chairman Mike Fichter. "Indiana voters need to be aware that the judges up for retention are activist judges imposing their wills on the state of Indiana. For the sake of traditional values, every judge up for a retention vote should be rejected."

IRTL PAC's information on judges up for retention is available here.

Posted by Marcia Oddi on Friday, October 27, 2006
Posted to Indiana Courts

Wednesday, October 25, 2006

Ind. Courts - Eight Questions for the Indiana Appellate Judge - Q&A 1, 5, 6 and 8

Earlier this month the ILB sent, to the five Courts of Appeals judges and one Supreme Court justice who are on the November 7th ballot for a "Yes/No" vote on retention, a set of "Eight Questions for the Indiana Appellate Judge."

I am today publishing the responses to the four remaining questions here in the ILB. I will also add the answers to the "Resources for the 2006 Indiana Appellate Judicial Retention Election" website.

Here is Q&A 1 - about the learning curve for appellate judges:

Q. All of you except for Judge Crone have been on the appellate or supreme court for more than a dozen years. Three of you were trial judges before your appointment to the Court of Appeals. Judges Friedlander and Najam, and Justice Sullivan came to the bench with no prior experience as a judge. Is there a steep learning curve, moving from the world of a practitioner or trial judge to that of an appellate judge? What are some of the difficulties or surprises?

A. Six members joined the Court of Appeals directly from private practice, and nine members came from the trial bench. All the judges on the Court have had courtroom experience on one side of the bench or the other, and most of the judges have many years of appellate experience. There is, indeed, a learning curve when someone moves to an appellate court whether from a trial practice, the trial bench or other prior experience. Much of what we do is unique to appellate adjudication. Perhaps the most significant challenge for an attorney or trial judge who joins the appellate bench is to learn the fine points of appellate review, which distinguish appeals from trials. The learning curve is modulated by the fact that three judges participate in each opinion. While trial judges act alone, the Court is a collegial institution in which the judges collaborate on a regular basis. Because the Court of Appeals sits in three-judge panels, we have former trial judges and former practitioners working together. The fifteen judges on the Court provide ready access to a wide variety of experience.

For a judge coming to the Court from the trial bench, a noticeable immediate difference was that there is not a decision to be made every five minutes and that schedules are not set by lawyers and litigants clamoring for court time. While there is a tremendous volume of work to be done, there is not the urgency you will find in the trial courts. We all appreciate the luxury of having the opportunity to consider complex legal issues in a contemplative environment. Another immediately noticeable and pleasant surprise is opportunity to work with our law clerks. Regrettably, law clerks are a rarity among Indiana’s trial courts. They are absolutely essential to what we do, and the quality and dedication of the law clerks adds significantly to the experience of serving as an appellate judge. Another is the tremendous intellectual resource provided by the 14 other regular judges and the senior judges on the court, all working in a collegial atmosphere.

A couple of the more difficult adjustments for appellate judges as they start out is adapting to working in a group, as opposed to being the sole decision-maker on a matter, and having significantly less contact with lawyers and litigants. Another major surprise is to discover the volume of not for publication cases decided by the Court of Appeals on an ongoing basis. Even former trial judges who have served on the trial bench for a number of years do not realize the tremendous volume of such cases.

Here is Q&A 5 - about suggestions for oral argument:

Q. Do you have any suggestions for lawyers who argue before you? What about briefing?

A. Entire treatises, law review articles, law school classes, and continuing educational programs are devoted to appellate oral arguments and briefing so a comprehensive answer to these questions is not possible here.

With that caveat, we counsel lawyers who are arguing a case before us that the best oral arguments are conversations with the court. Questions from the bench are opportunities to address matters that may troubling one or more of the justices or judges. Lawyers should always answer the question posed. If you do not know the answer, say so and offer to file a post-argument submission if the Court desires you to do so. Credibility is as important on appeal as it is at any other stage of a proceeding. Address matters of fact and law that are contrary to your position directly and openly and tell us why that adverse fact or authority is not determinative of the matter before us.

In regard to briefing, know and follow the appellate rules. Realize that the justices or judges who will read your briefs are reading hundreds of pages of briefs, records and cases on a daily basis and thousands of pages each week. Short, clear and concise arguments are often more persuasive than lengthier ones. Avoid argument in the statement of the case and the statement of facts. Avoid overstating the facts, and avoid overstating the holding in your case citations. Avoid personal attacks on the trial court, opposing parties and counsel. As with oral argument, acknowledge adverse facts and adverse authority and set forth your argument why such facts or authority should not be determinative of the case.

Here is Q&A 6 - about an "appellate judge track":
Q. For those readers still in school. Is there an "appellate judge" track -- i.e. serving as a law clerk or trial judge, for instance?

A. As you note in your first question, members of the Indiana Supreme Court and the Court of Appeals have varied backgrounds, and there is no particular track that one can follow leading to service on our courts. Serving as a judicial law clerk provides a wonderful opportunity to learn first hand what the job of a Supreme Court Justice or an appellate judge is like. As noted above, both the Supreme Court and the Court of Appeals have members who served as trial judges and members who did not. We have justices and judges who served as prosecutors, deputy prosecutors, public defenders, civil trial lawyers, business lawyers, family lawyers, bankruptcy lawyers and probate lawyers. The varied backgrounds yield a synergy which benefits both the Supreme Court and the Court of Appeals.
Here is Q&A 8 - about women and minority appellate judges:

Q. There are no women on the 5-member Indiana Supreme Court (and there has been only one woman on the Court in its history). There are only four women (of 15) on the Court of Appeals. Minorities are poorly represented on both courts. Any thoughts?

A. Both the Indiana Supreme Court and the Indiana Court of Appeals are committed to racial and gender equality. However, the Justices of the Indiana Supreme Court and the Judges of the Court of Appeals are appointed by the Governor from the names put forward by the Judicial Nominating Commission. As a result, we do not choose our colleagues, and we don’t have the power to select more women and minorities as members of our court.

On matters within our control, members of both courts have been leaders in promoting opportunities for women and minorities within the legal profession. Justice Frank Sullivan has co-chaired the American Bar Association Judicial Clerkship program that encourages minority law students to seek judicial clerkships. Judge Ezra Friedlander is co-chair with former Justice Myra Selby of the Commission on Race And Gender Fairness in the Courts. Both Justice Sullivan and the Court of Appeals have received the Raab Emison Award from the Indiana State Bar Association for “significant contributions made in advancing opportunities for minority lawyers in legal employment and the legal profession.”

Our Supreme Court has started the CLEO program to assist entering minority law students. For more than ten years, the Court of Appeals has sponsored its own CLEO program hiring students each summer to work as judicial clerks. Both courts employ a number of minority lawyers and women as judicial clerks and staff attorneys. It is our belief that by developing programs that assist minority law students and exposing them to the judicial branch that they will attain full and equal participation with judges in the future. Also, by working with minority lawyers, we serve as an example to other members of the legal profession to show that we value racial, ethnic and gender diversity within the law.

We would also note that Supreme Court Justice Myra Selby and Court of Appeals Judges V. Sue Shields, Linda Chezem and Betty Barteau, all left the Indiana appellate judiciary to pursue more lucrative employment opportunities, and Judge Robert Rucker left the Court of Appeals to serve as Justice of the Supreme Court.

Posted by Marcia Oddi on Wednesday, October 25, 2006
Posted to Indiana Courts

Sunday, October 22, 2006

Ind. Gov't. - Chicago lawyers are billing East Chicago at a rate of $580 per hour

"E.C. legal spending hits outrageous level" is the title of an editorial today in the Gary Post-Tribune. Some quotes:

It's apparent that the apple doesn't fall far from the tree when it comes to East Chicago city government.
Excessive spending -- particularly in lucrative contracts to those close to the city -- was a problem under the administration of former Mayor Robert Pastrick.

Now it seems that Mayor George Pabey is out to show the city that he doesn't have to take a back seat to Pastrick when it comes to spending taxpayer money.

The administration is spending an outrageous amount of money to defend lawsuits brought by people who were terminated when Pabey took over the helm.

In the first five months of this year, the Chicago law firm of Morgan, Lewis and Bockius has billed the city $1.4 million in preparing cases to defend those lawsuits.

Particularly troubling is that some of the lawyers working those cases are billing East Chicago at a rate of $580 per hour. The people of East Chicago ought to be wondering why the administration agreed to pay such an outlandish figure. And the people ought to be asking why the people were fired and why the city hasn't kept its vow to reduce its legal budget.

The fact is, the people were fired and, if history is any indication, many of them will end up winning their lawsuits, extracting judgments from the city.

The people of East Chicago ought to be asking why the city didn't hire local attorneys -- who charge considerably less than $580 an hour -- to defend the lawsuits. There is an excellent stable of attorneys in Lake County.

This editorial follows on a story earlier this week in the Munster (NW Indiana) Times (ILB entry here).

Posted by Marcia Oddi on Sunday, October 22, 2006
Posted to Indiana Government

Environment - Two hazardous waste sites focus of stories in Sunday papers

Major stories today on the Feddeler landfill in Northwest Indiana and on the Hassan site in Fort Wayne.

Feddeler landfill. The Gary Post-Tribune has this story, by Andy Grimm, headlined "A poisoned past Documents detail history of inaction in 30 years by state, landfill owner: Officials in Indianapolis were clued in." The long story begins:

The problems at the Feddeler dump were no secret, not in the Lowell area and not in Indianapolis.

State environmental officials had a hint the Feddeler landfill was a hazardous waste site the first time they stepped onto the 40-acre landfill more than 30 years ago.

The first report on file with the Indiana Department of Environmental Management, dated 1975, notes that workers were burying drums that might have contained toxic acryl-onitrile, pesticides and other waste as the inspector watched.

But for more than 20 years -- and even as they accepted plans to close off the site -- IDEM has treated the site as if those barrels weren't rusting beneath the surface.

After years of hearing neighbors complain about the landfill, county officials released test data that may prove residents' worst fears are true: Toxic gases and dangerous chemicals may be seeping out of the now-abandoned dump.

What is in the Feddeler dump, and what should be done to keep it from threatening public health?

The answers might be buried under mountains of trash and IDEM paperwork.

In the meantime, state and county officials agree: The dump is a mess, and it's getting worse.

A companion story is headed "Paper trail shows dump violations, incomplete files."Also of interest may be these two ILB entries from April 29th and 30th, 2004, headed "500 barrels of hazardous waste found."

Hassan site. "Over a barrel of toxicity: Responsibility for Hassan site cleanup unclear" is the headline to this story by Dan Stockman today in the Fort Wayne Journal Gazette. The story begins:

Two years after a padlocked industrial site was discovered to be essentially a toxic waste dump surrounded by homes and a school, the federal government is figuring out whom to sue to pay for the cleanup.

The Hassan Barrel Co. recycled industrial barrels on its 7-acre site at 1605 Summer St. until the summer of 2003, when the owners padlocked the gates and walked away. They left behind mountains of rusting, leaking barrels filled with paint wastes and caustic chemicals, crumbling buildings filled with barrels, semi-trailers filled with barrels and open pits where the company apparently dumped hazardous waste into the ground.

It was more than a year before the site was discovered; contractors hired by the U.S. Environmental Protection Agency removed more than 5,000 empty barrels in October 2004; a year later they removed about 5,000 full ones.

The immediate environmental nightmare has been removed, but its toxic legacy remains: The soil is contaminated with everything that leaked from the barrels, from butanone, ethyl-benzene and toluene to cadmium, chromium, lead and mercury. A ditch where neighborhood children play is contaminated with barium, cadmium, chromium and lead.

Here is a list of earlier ILB entries on the Hassan barrel recycling site.

Posted by Marcia Oddi on Sunday, October 22, 2006
Posted to Environment

Ind. Courts - Judge Gifford receives award

The Indianapolis Star has a report today I can't find online, but it is certainly worth recording:

Marion Superior Court Judge Patricia J. Gifford is the 2006 recipient of the Antoinette Dakin Leach Award, presented by the Women in Law Division of the Indianapolis Bar Association.

Gifford, who has served 27 years as a judge, is being honored for her professional and personal accomplishments.

Antoinette Dakin Leach (1859-1922) gained admittance to the Indiana Bar only after the Indiana Supreme Court overruled a lower court that had said a woman was "not a citizen in the sense that she could hold office and practice law." Leach became a successful attorney and a state and national leader in the suffragist movement.

"This award is very meaningful to me," Gifford said, "as it was voted on by my peers in the legal profession. I am truly honored."

According to the Indianapolis Bar Association website, Judge Gifford:
was honored at an October 12 luncheon as the 2006 recipient of the Antoinette Dakin Leach Award. She was introduced by Hon. William T. Lawrence, Magistrate Judge, U.S. District Court, Southern District of Indiana, and David F. McNamar, McNamar & Associates.

Posted by Marcia Oddi on Sunday, October 22, 2006
Posted to Indiana Courts

Saturday, October 21, 2006

Courts - Kentucky Supreme Court's future up to voters

Kentucky's Suprme Court justices are elective, serving 8-year terms. Andrew Wolfson of the Louisville Courier Journal writes today, in a story headlined "Supreme Court's future up to voters":

After Melissa Congleton was killed in October 2002 by a 37,000-pound steel coil that flew off a truck into her vehicle, a jury awarded her estate damages that included $100,000 for "pre-impact fear" -- the terror she experienced in the moments before her death.

It was the first time such a verdict had been allowed in Kentucky, and it's been appealed to the state Supreme Court, which will decide if it's justified or frivolous.

The decision, which could affect wrongful death suits for years to come, is one of the many legal issues whose fate may turn on the Nov. 7 election. Voters could elect as many as four new faces to the seven-member Kentucky Supreme Court.

A new pro-business group, the Partnership for Commonsense Justice, says the contested elections – -- in Louisville, Lexington, and Western and Northern Kentucky -- promise the biggest changes in the court's 30-year-history.

And lawyers of various stripes agree the races come at a crossroads for a court increasingly torn by politics and dissension.

"These seven people will shape the future of Kentucky law, and this is really important to Kentucky citizens," said Louisville attorney Edward Stopher. "As a practical matter, they have the last word on obligations, duties and damages in our state … so we need to cast our votes carefully."

The new court will decide such questions as whether:

A criminal lawyer denies his client effective counsel by walking out of the courtroom during his testimony because the attorney knows the defendant is lying.

A foundation that runs a university's dormitories is liable when a student is raped, sodomized and set on fire in one of them.

A Kentucky doctor was guilty of negligence when he slipped in a hospital operating room and grabbed a patient to keep from hurting himself -- injuring the patient.

Many law professors and other legal experts predict the court will move slightly to the left on criminal and civil law because of the justices who are leaving it, regardless who replaces them.

Professor William Fortune of the University of Kentucky noted, for example, that two of the justices most likely to affirm criminal convictions, Donald Wintersheimer of Covington and Bill Graves of Paducah, are among those retiring.

Defense attorneys have joked that Wintersheimer votes to reverse one conviction a year -- just so nobody can accuse him of reversing none. "You aren't going to get more pro-prosecution than Don," said former Justice James Keller of Lexington.

Court observers also say they expect the court to empathize more with plaintiffs in personal injury, medical malpractice and product liability cases because its staunchest voice for business, William Cooper, has retired.

He has been succeeded by former Court of Appeals Judge John D. Minton Jr. of Bowling Green, who was appointed to the court and faces no opposition as he seeks a full term. Practicing lawyers and professors describe Minton as a moderate and a scholar likely to be a leader on the court.

Predicting a court's future complexion is like playing a roulette wheel, Stopher says. And justices can be hard to pigeon-hole.

As Court of Appeals Judge Tom Wine quipped at a recent forum, "A strict constructionist is a judge who rules for you; while an activist judge is one who rules against you.'"

But lawyers and professors say the court could tilt to the right if voters retain Justice John Roach, who was appointed to the District 5 seat last year, and elect Republican activist Marcus Carey of Erlanger in District 6, who says on his Web site that "fundamental to my core philosophy is the unyielding belief that every right we have is given to us by God."

They would join Republicans Joseph Lambert of Mount Vernon and Deputy Chief Justice Will T. Scott of Pikeville.

[Kentucky] Supreme Court justices serve eight-year terms and are paid $132,012 a year.

The article continues with detailed looks at the positions of each of the candidates.

Posted by Marcia Oddi on Saturday, October 21, 2006
Posted to Courts in general

Ind. Courts - Editorial: "Election of judges should be nonpartisan"

"Election of judges should be nonpartisan" is the headline to an editorial today in the Bloomington Herald-Times (not freely available online):

At a recent candidate's forum, a question from the audience drew a unanimous "Yes!" from all four of the candidates running in contested [local] judge races.

The issue: Wouldn't it be better if judge races weren't partisan?

The school board races, mercifully, are conducted without partisan affiliation. This improves the school board races - focusing them more on issues than on party biases.

It's not surprising that judge candidates would love to have the same freedom from party platforms. They are rightly expected, while on the bench, to steer clear of all semblance of party affiliation.

So during election season, those "nonpartisan" elected officials have to run back to their parties and hope the fact that they've ignored politics for the past five years will not be held against them.

It's time for those who care about this to mount a campaign to get the regulations changed. Maybe a bipartisan group of judges should kick this effort off.

Posted by Marcia Oddi on Saturday, October 21, 2006
Posted to Indiana Courts

Law - "Alleged mannequin thief strikes again"

"Alleged mannequin thief strikes again" is the headline to this AP story out of Ferndale, Michigan. Some quotes:

A Detroit man with a history of smashing business windows to grab female mannequins has been arrested for the latest indulgence of his fetish.

Ronald A. Dotson, 39, was arrested Oct. 9 after police say he smashed a window at a cleaning-supply company in suburban Ferndale to get at a female mannequin dressed in a black and white French maid's uniform. A judge ordered him Thursday to undergo a psychiatric examination at the request of his defense attorney, Edward Cohn. Doctors will determine whether Dotson is competent to stand trial on a charge of attempted breaking and entering. * * *

Dotson had been out of prison for less than a week when he was caught. His erotic pursuit of mannequins over the past 13 years has led to at least six convictions for breaking and entering and a stint in state prison, police say.

"He told his parole officer he was going to buy a mannequin so he didn't have to do these break-ins anymore," said Ferndale police detective Brendan Moore. "Apparently that didn't work out."

Posted by Marcia Oddi on Saturday, October 21, 2006
Posted to General Law Related

Friday, October 20, 2006

Law - U.S. Supreme Court, in a surprise move, reverses 9th Circuit order barring the Arizona voter ID law [Updated]

Prof. Rick Hasen's Election Law Blog entry begins:

The opinion is here. The state asked for a stay from Justice Kennedy, but he referred it to the entire Court, which treated the motion as a petitionfor cert. The Court unanimously reversed the Ninth Circuit, which had barred the use of Arizona's new voter i.d. law.

The Court's order says it expresses no opinion on the ultimate merits of the case, and Justice Stevens' concurring opinion notes that allowing the voter i.d. law to be put in place will allow the courts to evaluate issues related to possible fraud prevented by the law and possible disenfranchisement caused by the law in light of actual historical experience, rather than speculation.

[Updated 10/21/06] A number of national papers have coverage today of the Supreme Court's action. How Appealing has collected the links here.

Posted by Marcia Oddi on Friday, October 20, 2006
Posted to General Law Related

Ind. Courts - Eight Questions for the Indiana Appellate Judge - Q #7: the retention election

Earlier this month the ILB sent, to the five Courts of Appeals judges and one Supreme Court justice who are on the November 7th ballot for a "Yes/No" vote on retention, a set of "Eight Questions for the Indiana Appellate Judge."

I am publishing the responses here in the ILB (in no particular order) and as I do, I will also add the answers to the "Resources for the 2006 Indiana Appellate Judicial Retention Election" website.

The judges decided to submit a collective response to each of my questions. I will post my original email to the judges, including the list of eight questions, shortly.

Here is Q&A 7 - about the retention election

Q. Appellate judges in our surrounding states - Illinois, Ohio, Michigan and Kentucky, are elected to office (see http://www.ajs.org/js/select.htm)

Indiana is different, and has been since 1970 - Judges of the appellate courts are appointed by the governor from a list of three names submitted by the state judicial nominating commission. After two years, appellate court judges are on the ballot for 10-year terms via a "yes/no" vote. There is no limit on the number of terms, but the retirement age is 75.

What are the advantages of this system? Are there any disadvantages?

What, if anything, do you do to "run" for retention?

A. In 1970, the voters of Indiana approved a constitutional amendment providing for merit selection of Indiana Supreme Court justices and Indiana Court of Appeals judges. This system, now in place for 36 years, has been used to select all of the current members of the Indiana Supreme Court and 14 of the 15 current members of the Indiana Court of Appeals.

Our system relies upon a state Judicial Nominating Commission consisting of seven members. Three members of the Commission are lawyers elected by the lawyers state; three are non-lawyers appointed by the Governor; and the seventh member is the Chief Justice of Indiana, who chairs the Commission. When there is a vacancy on the Supreme Court, Court of Appeals, or Tax Court, interested judges and lawyers submit applications to the Commission and the Commission nominates the three applicants it considers most qualified. The Governor makes the final appointment from among the Commission's nominees. Once appointed, a justice or judge must stand for a retention election at the first statewide general election after the justice or judge had served for two full years and, if retained, every 10 years thereafter. (During the retention vote, the voters are presented with the question, should Justice (or Judge) John B. Jones be retained in office? If the justice or judge receives a majority of "yes" votes, he or she is retained.)

Some states, notably Missouri, have systems of selecting appellate judges quite similar to ours. Other states rely on conventional elections in which candidates for justice or judge run against each other, in some states (including our neighbors of Ohio, Michigan, Illinois, and Kentucky) on partisan ballots and in other states (including Wisconsin) on non-partisan ballots. Still other states provide for appointment without any election or retention vote process at all.

Of the various methods of selecting appellate judges used in this country, we believe that ours best furthers the goals of impartiality and accountability. In many states, elections of appellate judges have become dominated by special interests that contribute literally millions of dollars to the campaigns of the candidates. This creates at least the appearance that the justice or judge who is elected will not be impartial when it comes to matters in which his or her principal supporters have a stake. It also creates at least the appearance that an incumbent justice or judge will cast his or her vote in certain cases in a way calculated to improve his or her chances of being reelected. Two stories in the New York Times earlier this month detailed these concerns with Supreme Court elections in Ohio this year and in Illinois and West Virginia in 2004. See “Campaign Cash Mirrors a High Court's Rulings” and “Case Studies: West Virginia And Illinois,” The New York Times, October 1, 2006.

In contrast, justices and judges in Indiana decide cases fairly and impartially, free from any campaign finance considerations, need to attract votes, or fear of partisan attack.

At the same time, our system provides for accountability in several ways. First, the justices and judges selected are unlikely to be outside the mainstream with respect to their judicial philosophy and temperament precisely because appointees of the Governor and the Governor himself are involved in screening and appointing them. Furthermore, there is a check on their performance shortly after their appointment and at periodic intervals thereafter by means of the retention election process.

Judges who are candidates for retention are not permitted to campaign or solicit public support or campaign funds unless there is organized opposition to their retention.

The men and women who serve on Indiana's Supreme Court, Court of Appeals, and Tax Court enjoy superior reputations both nationally and within the state for the quality of their decisions and for their impartiality, fairness, integrity, and hard work. I believe that this is directly attributable to the merit selection process we use to choose and retain these justices and judges and that the voters of Indiana made an extremely wise decision when it put a system in place in 1970.

Notes from the ILB: The NYT article cited, "“Campaign Cash Mirrors a High Court's Rulings”, is unfortunately no longer freely available online, but is quoted in this Sept. 30th ILB entry.

"Case Studies: West Virginia and Illinois" also is no longer freely available, but here is a quote:

Justice Larry V. Starcher of the West Virginia Supreme Court says he likes his new colleague, Justice Brent D. Benjamin. But he has a funny way of showing it.

“It makes me want to puke,” said Justice Starcher, a Democrat, “to see massive amounts of out-of-state money come in and buy a seat on our court.”

Justice Benjamin, a Republican lawyer with no judicial experience, unseated a West Virginia Supreme Court justice in 2004 with the help of about $3 million in advertisements and other support from Don L. Blankenship, the chief executive officer of Massey Energy, a coal-mining company. Massey has its headquarters in Virginia, but the company says Mr. Blankenship has spent most of his life in West Virginia.

As far as Justice Starcher is concerned, “Now we have one justice who was bought by Don Blankenship.”

Like other justices around the country who gained seats on their states’ highest courts with the help of large contributions and heavy independent spending, Justice Benjamin sees no conflict in sitting on his supporters’ cases. In April, he refused to disqualify himself from an appeal in a case in which a jury had ordered a Massey affiliate to pay $50 million.

Posted by Marcia Oddi on Friday, October 20, 2006
Posted to Indiana Courts

Ind. Decisions - Transfer list for week ending October 20, 2006

Here is the Indiana Supreme Court's transfer list for the week ending October 20, 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, October 20, 2006
Posted to Indiana Transfer Lists

Ind. Decisions - List of Court of Appeals NFP opinions issued for the week ending October 20 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 October 20, 2006.

Posted by Marcia Oddi on Friday, October 20, 2006
Posted to NFP Lists

Ind. Courts - Eight Questions for the Indiana Appellate Judge - Q #2: NFP opinions

Earlier this month the ILB sent, to the five Courts of Appeals judges and one Supreme Court justice who are on the November 7th ballot for a "Yes/No" vote on retention, a set of "Eight Questions for the Indiana Appellate Judge."

I am publishing the responses here in the ILB (in no particular order) and as I do, I will also add the answers to the "Resources for the 2006 Indiana Appellate Judicial Retention Election" website.

Here is Q&A 2 - about the NFP opinions:

Q. Under App. Rule 65, Court of Appeals opinions are deemed “Not for Publication” unless the case establishes, modifies or clarifies a rule of law; criticizes existing law; or involves a legal or factual issue of unique interest or substantial public importance.

Recently, the Court of Appeals decided to make its NFP opinions more accessible. For many of us, that meant seeing for the first time how much work the judges on the Court of Appeals actually put out each week. What we had seen up to then was merely “the tip of the iceberg.”

What surprised many of us was that other than the NFP stamp in the upper left hand corner of the first page, the NFP are no different than the “published” opinions. These are not one-page “Affirm” or “Reverse” opinions. They are full-blown opinions, sometimes split, sometimes reversing the lower court.

Who makes the “NFP” determination in each case? Is it the judge who writes the opinion? How does the process operate?

A. The Court of Appeals of Indiana is one of a few intermediate appellate courts that decide every case by a full written opinion decided by a three-judge panel. You are right that there is no significant difference between an opinion that is designated for publication and one that is not. Usually, no decision is made regarding publication until after the opinion is completely drafted. This results in the quality of the not for publication opinions being substantially the same as the for publication opinions.

In some cases, we will know from the outset that a particular case will be decided by a published opinion because it clearly falls within the criteria in the rule. In other cases, the decision is made after the opinion is written and circulated to the panel. In all cases, the writing judge makes a recommendation to the other members of the panel regarding publication.

If the recommendation is to publish the opinion, the recommendation will be made by a publication memorandum setting out the reason publication is recommended with reference to the appropriate provision of App. Rule 65.

Sometimes, one of the other members of the panel will suggest publication for a case that the writing judge did not originally designate as a for publication case. We occasionally have a situation where somebody writing a dissent feels that a case should be published because of the nature of the opinion expressed in the dissent. Also on occasion, a member of the Court who is not on the panel will suggest publication. The decision to publish or not publish is made by a majority vote of the panel.

Posted by Marcia Oddi on Friday, October 20, 2006
Posted to Indiana Courts

Ind. Courts - Eight Questions for the Indiana Appellate Judge - Q #4: oral arguments

Earlier this month the ILB sent, to the five Courts of Appeals judges and one Supreme Court justice who are on the November 7th ballot for a "Yes/No" vote on retention, a set of "Eight Questions for the Indiana Appellate Judge."

I am publishing the responses here in the ILB (in no particular order) and as I do, I will also add the answers to the "Resources for the 2006 Indiana Appellate Judicial Retention Election" website.

In response to the publication of Q&A #3, I received this note this morning from an attorney reader:

Interesting how-to question, but who answered it? Is it the collective answer of the appellate judges? Did you compile the best answer from their responses?

Doesn't sound like the Q&As from the various advocacy groups - and I did not expect that. Will be interesting to read the other questions and answers.
The answer: The judges decided to submit a collective response to each of my questions. I will post my original email to the judges, including the list of eight questions, shortly.

Here is Q&A 4 - about the oral arguments:

Q. Readers can watch online a few of your 3-judge panels hearing oral arguments. Do you have oral arguments in all cases? What percent? How do you decide that an oral argument is needed? Some of your oral arguments are held outside the Statehouse, in various locations around the State? Tell use about this - is it a new practice? How often do you schedule arguments are various locals? How to get on the list?

We do not hold oral argument in all cases. Indeed, in recent years we have held oral arguments in approximately five to ten per cent of our cases each year. In 2005, we held oral arguments in eighty-four cases out of the 2,350 cases which we decided by majority opinion. The relatively low number is the result of two factors: First, although a majority of the oral arguments requested each year are granted, oral arguments are requested in only a small percentage of cases. Second, the time commitment required by an oral argument must be balanced by the demands of a continually mounting caseload.

If an oral argument is requested by one of the parties, the request will be ruled upon by the three-judge panel to whom the case is assigned. In some cases the panel will set a case for oral argument on its own motion. In deciding whether to an oral argument on any particular case, judges will consider a number of factors including whether there are issues in a case that were either not raised or were not fully developed in the parties’ briefs and whether there has been a change in the applicable law since briefing was completed.

We have held oral arguments around the state for a number of years. Indeed, earlier this year the Court was recognized by St. Mary of the Woods College for holding oral arguments there for twenty-four consecutive years. The practice of holding oral arguments around the state has been significantly expanded since the Court celebrated its one hundredth anniversary as a permanent court in 2001. That year, as part of our Centennial celebration, we held oral arguments in every part of the state, and we decided to try to visit each county in the state at least once every three years.

Our court remains committed to holding oral arguments throughout our State. In addition to the educational opportunities which the arguments provide for students and the general public, they afford us the opportunity to meet with local bar associations and judges and discuss mutual concerns. If anyone would like to host our court for an oral argument, we would welcome the opportunity. Readers should feel free to contact our Court Administrator, Steve Lancaster, to make arrangements.

As it happens, the ILB has just checked the calendar and sees that the Court of Appeals will be holding oral argments in West Lafayette next Monday:
WEST LAFAYETTE - The Indiana Court of Appeals will hear oral argument in the case Filip v. Block on Monday, October 23rd at 10:30 a.m. at the University Place Retirement Community in West Lafayette. A three-member panel of Chief Judge James S. Kirsch, Judge Patricia A. Riley, and Judge Margret G. Robb will hear the case on appeal from Starke County.
and in Vincennes next Tuesday:
VINCENNES - The Indiana Court of Appeals will hear oral argument in the case Hamilton v. Prewett on Tuesday, October 24 th at 11 a.m. CT in the auditorium of the Shircliff Humanities Building on the campus of Vincennes University. A three-member panel of Judge John P. Baker, Judge Edward W. Najam, Jr., and Judge L. Mark Bailey will hear this civil case on appeal from Daviess County.

Posted by Marcia Oddi on Friday, October 20, 2006
Posted to Indiana Courts

Ind. Decisions - Court of Appeals issues 1 today (and 6 NFP)

For publication opinions today (1):

In In the Matter of the Estate of Pattie L. Owen, Deceased, Rodney M. Logan and Carol Logan, Co-Personal Representatives v. Toni L. Lyke, a 16-page opinion (with a concur/dissent beginning on p. 15), Judge May writes:

Rodney and Carol Logan, as co-personal representatives of the Estate of Pattie L. Owen, appeal the probate court’s construction of Owen’s will in favor of Toni Lyke. The probate court correctly determined Article V of Owen’s will is ambiguous but erred when construing certain portions of it. We affirm in part and reverse in part. * * *

Article V of Owen’s will is ambiguous. Article V granted Lyke a life estate in the farm, with the remainder granted to her children, which life estate is to be held in trust with the Logans as trustees. The rental restriction is void as against public policy. The right of preemption and the right of first refusal granted to the Logans are valid and do not violate the rule against perpetuities. Accordingly, we affirm in part and reverse in part. Affirmed in part, reversed in part.

SULLIVAN, J., concurring.
BAKER, J., concurring in part and dissenting in part with separate opinion. [which begins] My colleagues have done an admirable job of giving life to Owen’s testamentary words. I concur in large part with their conclusions but must respectfully dissent from the finding regarding the “rental restriction.”

NFP civil opinions today (0):

NFP criminal opinions today (6) (link to cases):

Joey Higgins v. State of Indiana (NFP)

Jason Pfledderer v. State of Indiana (NFP)

Wendell Iddings v. State of Indiana (NFP)

Kerwin J. Cole v. State of Indiana (NFP)

Michael D. Bell v. State of Indiana (NFP)

Jeffrey N. Miller v. State of Indiana (NFP)

Posted by Marcia Oddi on Friday, October 20, 2006
Posted to Ind. App.Ct. Decisions

Ind. Decisions - ND Indiana rules on the sealing of documents

Following upon several recent ILB entries on the sealing of court records, including this one from Oct. 17th ("Sealed filings more common before Supreme Court, according to reporter") and this one from August 9th ("Moves toward secrecy in the Indiana trial court system?"), an order of interest was issued this week by U.S. Magistrate Judge Christopher A. Nuechterlein of the N.D. Indiana in the case of Rochester Community School Corp. v. Honeywell, Inc. (available here), setting forth the requisite standards comporting with 7th Circuit precedent [most citations omitted]:

When granting a proposed protective order, this Court must independently determine whether "good cause" exists to seal the requested information from the public record. In doing so, this Court must not grant parties carte blanche to seal or protect whatever they desire. In other words, this Court cannot serve as a rubber stamp whenever parties wish to seal public records, but must review all requests to seal documents in light of the public interest in the judicial process.

When reviewing an agreed protective order seeking to seal documents produced in discovery, this Court must ensure that “(1) the information sought to be protected falls within a legitimate category of confidential information, (2) the information or category sought to be protected is properly described or demarcated, (3) the parties know the defining elements of the applicable category of confidentiality and will act in good faith in deciding which information qualifies thereunder, and (4) the protective order explicitly allows any party and any interested member of the public to challenge the sealing of particular documents.” This Court may issue a protective order in this case pursuant to its referral order and 28 U.S.C. § 636(b)(1)(A).

The parties’ proposed order fails because the order contains no language explicitly allowing interested members of the public to challenge the sealing of particular documents. “The right to intervene to challenge a closure order is rooted in the public's well-established right of access to public proceedings.” Jessup v. Luther, 227 F.3d 993, 997 (7th Cir. 2000). In granting protective orders, judges are thus “the primary representative[s] of the public interest in the judicial process" and must require that a “protective order explicitly allows any party and any interested member of the public to challenge the sealing of particular documents.” The proposed order fails to allow any interested member of the public to challenge the sealing of particular documents.

Because it fails to explicitly express that any interested member of the public may challenge the sealing of particular documents, this Court DENIES WITHOUT PREJUDICE the Defendants’ proposed protective order. [Doc. No. 36]. The Defendants may resubmit their proposed order in light of the standards set forth in this order and the citations herein.

Posted by Marcia Oddi on Friday, October 20, 2006
Posted to Ind Fed D.Ct. Decisions

Ind. Decisions - "Two charities lose in Lilly estate ruling"

Yesterday's Court of Appeals decisions in Americans for the Arts, et al. v. Ruth Lilly Annuity Trust, et al., (see ILB entry here) is the subject of this story by Kevin O'Neal in today's Indianapolis Star:

The Indiana Court of Appeals, affirming a lower court ruling, ruled Thursday that National City Bank acted in good faith in handling an estate plan for Ruth Lilly.

At issue in the case: large portions of what is estimated to be an estate worth more than $1 billion held by Ruth Lilly, the only surviving grandchild of the founder of drug giant Eli Lilly and Co.

"We're disappointed with the decision," said Andrew J. Goodman, a New York attorney who represented Americans for the Arts, one of the charities that sued in the case. "We're exploring the possibility of taking the case to the Indiana Supreme Court."

The lawsuit, filed by that group as well as the Poetry Foundation, claimed National City failed to diversify the funds entrusted to it, costing the plaintiffs millions of dollars as her future beneficiaries.

"Ruth Lilly gave this wonderful gift to the poetry world, and our job is to protect that gift," said John Barr, president of the Poetry Foundation, who estimated that the charities lost $100 million because of investments not made by National City.

The appellate judges upheld a ruling by Marion Superior Court, Probate Division, that endorsed the bank's plans for Lilly's estate, which oversees two charitable trusts in Ruth Lilly's name. Those trusts will provide a lifetime annuity to Lilly and to six of her nieces and nephews for five years, with the rest going to the Lilly Endowment and the two charities.

The court said the bank's actions were part of a move to "overhaul her extraordinarily -- and unnecessarily -- complicated estate plan that was sure to result in protracted litigation and astronomical tax bills."

While the charities said the bank did not properly diversify the estate's investments, the appeals court said a clause in the estate plan specifically did not require that sort of diversification, and so the bank did nothing wrong.

Posted by Marcia Oddi on Friday, October 20, 2006
Posted to Ind. App.Ct. Decisions

Ind. Gov't. - More on cell towers in the news

This September 07, 2006 ILB entry referenced both the St. Charles Tower, Inc. v. Bd. of Zoning Appeals of Evansville appeal, and the pending request by Chicago Public Radio/WBEZ for a use variance to erect a 499-foot FM radio transmission tower at the southwest quadrant of Indiana 49 and U.S. 20.

The Court of Appeals has since ruled on the Evansville case - see Oct. 11th entry here, and the Chesterton Tribune today has two reports on the WBEZ request, both written by Paulene Poparad. The Porter BZA denied the WBEZ request on Sept. 20th. This story from yesterday, Oct. 26th, headlined "Porter BZA defends WBEZ tower decision", reports:

The Porter Board of Zoning Appeals emphasized Wednesday that if it would have allowed a 499-foot FM radio transmission tower along what is viewed by the town as the “gateway” to the dunes, that would have been in serious conflict with the town’s Comprehensive Plan.

The board also noted that it felt “uncomfortable” having thousands of dollars of free wireless Internet equipment, technical support and other considerations offered to the town even if they were not specifically part of the tower petition.

Both observations were contained in a two-page findings of fact the BZA approved last night to support its Sept. 20 denial of Chicago Public Radio station WBEZ’s petition to allow the tower as a use variance at the southwest quadrant of U.S. 20 and Indiana 49.

The 10-acre parcel is zoned residential and two cellular towers about 200 feet tall each are on the wooded site, which is 80 percent wetlands. WBEZ also proposed having a 12-foot by 20-foot equipment building 10 feet tall in addition to the tower.

The land is owned by and the new tower would be erected and owned by Tom Tittle’s Aqua-Land Communications Inc. WBEZ would lease the tower, on which other providers could co-locate. WBEZ officials said a higher tower would allow it to upgrade its programming and signal for Chesterton-based sister station WBEW.

Vote to adopt the findings was 3-1 with members Greg Stinson, Henry Huyser and President Bruce Snyder in favor; Bill Donley was opposed. That mirrored the Sept. 20 vote to deny the petition.

The fifth BZA member, Lorain Bell, has recused himself and did so again Wednesday because he previously was contacted by WBEZ representatives about placing the tower on land he owns.

The findings, required by state law for all cases heard by a BZA, were prepared by town attorney Patrick Lyp. Some BZA members had not received them so they were given time to review the findings prior to the vote; no discussion occurred. Lyp said given the magnitude of the discussion Sept. 20, which followed a four-hour public hearing Sept. 5, he wasn’t able to prepare the findings until now.

In order to have the use variance eligible for approval, WBEZ would have had to satisfy five statutory standards. The findings show none of them were met, and that the BZA adopts the concerns raised by its own members and town staff.

The story then proceeds to go through each of the findings in detail. The second story yesterday, headed "Appeal challenges radio tower rejection," reports:
This morning The WBEZ Alliance, Inc. doing business as Chicago Public Radio and Aqua-Land Communications Inc. filed a lawsuit asking a court to overturn the Porter Board of Zoning Appeals’ Sept. 20 denial of a use variance, and to require the town to issue a building permit for a FM radio transmission tower on Aqua-Land’s property.

According to the office of local attorney Michael Harris, whose firm filed the appeal, the BZA has been given until Nov. 10 by Porter Superior Court Judge Roger Bradford to respond.

The appeal cites the fact that the BZA failed to adopt findings of fact related to the petition within five days from the Sept. 20 decision as required by law and therefore there was no legal basis on which the board made its decision. Those findings were adopted last night.

The appeal also alleges that the board “considered improper material and matters outside the record and the evidence presented at the hearing.” In addition, WBEZ and Aqua-Land alleged that BZA President Bruce Snyder should have recused himself from the case but instead did hold “himself out as an expert witness to his other board members, free from challenge or rebuttal by the applicant.”

Snyder is a certified land appraiser, and the lack of his disclosure regarding his affiliation with Fairhaven Church also was questioned in the appeal because it states 22 of 24 individuals signing a petition against the 499-foot radio tower reside in the Fairhaven complex on property owned by Fairhaven.

Furthermore, according to the lawsuit, citing extended remarks by Snyder prior to the vote, “All of the Chairman’s rationales were clearly outside the evidence presented and in fact had no relationship to the evidence presented.”

The petitioners presented convincing evidence why their variance should have been granted, according to the lawsuit, and WBEZ and Aqua-Land had obtained necessary federal permits to construct the tower.

A second count in the lawsuit alleges the petitioners have suffered economic losses and as such are entitled to have their damages assessed and a judgment entered in their favor and against the town and the BZA.

Posted by Marcia Oddi on Friday, October 20, 2006
Posted to Indiana Government

Ind. Courts - "Indicted tax collector still sits on judge selection panel"

Bill Dolan of the Munster (NW Indiana) Times reports today:

CROWN POINT | Lake County commissioners first voted to cut their embattled tax collector out of lucrative government work. Now Roosevelt Powell may lose his voice in choosing new local judges.

Commissioner Roosevelt Allen, D-Gary, said Thursday the county is prepared to remove Powell from his seat on the County Judicial Nominating Commission next month, but some believe Powell's removal may not be that simple.

Powell, charged in U.S. District Court with public corruption, has taken part in nominating several local judges during his service on the judicial board, which was created to elevate judicial selection above the seamy reputation of local politics.

Judicial commission members questioned Thursday whether an unproved fraud charge is sufficient cause for removal. * * *

Former county commissioner and current Gary Mayor Rudy Clay named Powell to the board. It has nominated Superior Court judges Elizabeth Tavitas, Diane Boswell and Salvador Vasquez to the bench during Powell's tenure.

Indiana Supreme Court Judge Robert Rucker, who serves as the judicial commission's chairman, said Thursday, "Neither (I) nor any other (judicial commission) member would have the authority to take a vote to remove him. That would be strictly up to commissioners."

Merrillville lawyer Rich Wolter, a judicial commission member, said Thursday, "I don't know of any mechanism to address this, other than the general concept of the (commissioners) being able to remove someone for cause. Getting charged may not be enough."

Schererville attorney Ron Layer, who serves on the judicial commission, advised caution.

"A vacancy is not created by the indictment of a grand jury," Layer said. He added Powell must be presumed innocent.

Powell is pleading not guilty to allegations that he manipulated the county's tax collection system to enrich himself.

Posted by Marcia Oddi on Friday, October 20, 2006
Posted to Indiana Courts

Law - Kentucky's state contract oversight laws criticized

Deborah Yetter of the Louisville Courier Journal writes today:

Citing Communities at Oakwood as the worst example, a state audit released yesterday found that Kentucky laws designed to regulate state contracts with private companies are virtually useless.

Costs have soared under private contractors at the state's largest residential center for adults with mental retardation as problems worsened, including repeated findings of abuse and neglect, the audit found.

"Oakwood is just the biggest and the most publicized example of the fact that we have a very lax system of oversight and accountability when it comes to privatizing services," state Auditor Crit Luallen said in an interview.

Posted by Marcia Oddi on Friday, October 20, 2006
Posted to General Law Related

Thursday, October 19, 2006

Ind. Courts - Eight Questions for the Indiana Appellate Judge - Q #3: the 3-judge panel

In the style of Howard Bashman's "20 Questions for the Appellate Judge," earlier this month the ILB sent, to the five Courts of Appeals judges and one Supreme Court justice who are on the November 7th ballot for a "Yes/No" vote on retention, a set of "Eight Questions for the Indiana Appellate Judge."

I'm very pleased to report that every jurist who received a questionaire has elected to participate in the responses: from the Court of Appeals -- Chief Judge James S. Kirsch, Judge Terry A. Crone, Judge Ezra H. Friedlander, Judge Edward W. Najam Jr. and Judge Patricia A. Riley; from the Supreme Court -- Justice Frank Sullivan Jr.

I will publish the responses here in the ILB (in no particular order) and as I do, I will also add the answers to the "Resources for the 2006 Indiana Appellate Judicial Retention Election" website.

Here is Q&A 3, about the 3-judge panel:

Q. The five justices on the Supreme Court hear cases together. The 15 members of the Court of Appeals never meet together, as far as I know. They instead meet in 3-judge panels. Has it always been this way? I read somewhere that few other states meet in panels like this. What do they do? What are the advantages here? How are the judges who will sit on a panel determined? How are cases assigned?

A. The three-judge panel system has been traditional in this country for intermediate appellate courts, has been the practice in Indiana since at least 1972, and is consistent with the standard adopted by the American Bar Association. The underlying rationale for panels of three is that cases should be resolved by a collective judicial judgment so that appeals are more than substituting the decision of a single appellate judge for that of a single trial judge. A panel of three provides this opportunity without incurring the costs which would be involved in panels of a greater number. The three-judge panel also avoids the possibility of an evenly divided court.

Although there are some variations from three judge panels in courts in other states, it is the structure for most intermediate appellate courts including the United States Circuit Courts of Appeal.

Unlike some of our sister states, Indiana does not have a procedure for the Court of Appeals to sit en banc. As a result, there is a possibility that different panels may resolve a particular issue in different ways with no internal mechanism for resolving the conflict. Such conflict between panels is a very significant factor considered by our Supreme Court in deciding whether to grant a petition to transfer.

Our three-judge panels sit together for terms of four months after which the judges rotate. The panels are selected by a mathematical formula which assures that each member of our court will work with every other member of the court for at least four months out of every thirty months.

Case assignments are made by rotation. When a case is fully briefed, it is transmitted by the Clerk of the Supreme Court, Court of Appeals and Tax Court to the Court of Appeals Administrator. The Administrator then routes it according to the rotational system. There are four rotational wheels: criminal, civil, expedited and child-related. Each judge gets every fifteenth criminal case, every fifteenth civil case and so forth. This assures an even division of the cases across the court both in terms of numbers and types of cases.

Posted by Marcia Oddi on Thursday, October 19, 2006
Posted to Indiana Courts

Ind. Decisions - Court of Appeals issues 4 today (so far ...) (and 3 NFP)

For publication opinions today (4):

Prairie Material Sales, Inc., et al. v. Lake County Council, et al.

Indiana Bell Telephone Company, et al. v. Indiana Utility Regulatory Commission, et al., is a 25-page opinion (with a concur/dissent beginning on p. 19) by Judge Baker, basically upholding the IURC: "The order of the IURC is affirmed in part and remanded with instructions to determine whether the amount of the Charges was readily ascertainable and not in dispute and to enter an award of interest if appropriate."

In Americans for the Arts, et al. v. Ruth Lilly Annuity Trust, et al., a 21-page opinion, Judge Baker writes:

The primary question presented by this appeal is whether National City Bank of Indiana (National City), as trustee of two charitable trusts created by Ruth Lilly’s (Ruth) estate plan, was required to diversify the trust assets. Although as a general rule, trustees have a duty to diversify, the trust instrument may modify that duty by permitting the trustee to retain certain—or all—trust assets. Concluding that the relevant documents at issue herein sufficiently relieved National City of the duty to diversify the trust assets, we affirm the judgment of the trial court.
(Notice that all three of the big-3 Indianapolis firms are represented here.)

Ty Evans v. State of Indiana

NFP civil opinions today (2):

Redbud Estate Sales, Inc. v. State of Indiana and Indiana Department of Natural Resources (NFP)

Daviess County Development Company, Inc. v. Henry Wittmer (NFP)

NFP criminal opinions today (1) (link to cases):

Charles E. Perkins v. State of Indiana (NFP)

Posted by Marcia Oddi on Thursday, October 19, 2006
Posted to Ind. App.Ct. Decisions

Ind. Law - More on: Indy law firm files action in Calif. on behalf of Fred Goldman, involving O.J.Simpson

Updating this ILB entry (which included a link to the press release) from Sept. 5, the AP reported earlier this week:

SANTA MONICA, Calif. - A judge on Tuesday tentatively rejected a lawsuit seeking the publicity rights to O.J. Simpson’s name, image and likeness to pay millions of dollars owed to relatives of his slain ex-wife and her friend.

Last month, Fred Goldman asked the court to grant him the rights, claiming Simpson was making money from appearances and autograph signings that should be used to satisfy a wrongful death lawsuit judgment he estimated at $38 million in damages and interest.

Simpson’s attorney Yale L. Galanter had argued that any other outcome would amount to forcing Simpson into “involuntary servitude” to Goldman, the father of Ronald Goldman. * * *

Superior Court Judge Linda Lefkowitz took the case under submission, saying she believed Simpson would have to voluntarily give up his rights to publicity.

“We’re obviously disappointed by the judge’s tentative ruling but ... it’s not a final order. It is merely her preliminary thoughts,” said Goldman’s attorney Jonathan G. Polak. [ILB - from Sommer Barnard]

The judge allowed attorneys for Goldman to submit additional papers on the issue. With Simpson’s lawyers expected to reply, the case will last at least another two weeks, Polak said.

Posted by Marcia Oddi on Thursday, October 19, 2006
Posted to Indiana Law

Ind. Courts - "St. Joseph County judge balks at a plea agreement"

"St. Joseph County judge balks at a plea agreement: Frese wants Dvorak to personally approve deal, before the election" is the headline to a story today by Patrick M. O'Connell in the South Bend Tribune.

Posted by Marcia Oddi on Thursday, October 19, 2006
Posted to Indiana Courts

Ind. Courts - Race for Porter County clerk

This story by Bob Kasarda today in the Munster (NW Indiana) Times is particularly interesting in its listing of the plans of each of the candidates, if elected:

VALPARAISO | The race for Porter County clerk is not loaded with the hot-button issues facing other candidates this election season.

But the winner will oversee a staff of 40 full-time employees, who issue every marriage license, file each court case and handle all traffic tickets in the county, in addition to processing child support payments.

Candidates Jan Dick, a Republican, and Pamela Mishler Fish, a Democrat, both believe they have the business background necessary to take the reins from Clerk Dale Brewer, a Republican who is prevented by law from seeking a third term. The office pays $52,180 a year.

Dick, 59, who is currently a member of the Valparaiso City Council, said his business background includes 32 years as a supervisor at the former Bethlehem Steel Co.

He said he decided to run for clerk after being approached by party officials.

Fish, 45, who just completed a term on the Union Township School Board, said she has owned and operated her own environmental consulting firm for the past 15 years.

She said she gained interest in the clerk's post from her mother, who worked several years for the past two clerks.

Fish intends to provide greater access to the clerk's office by staggering employee lunches and doing away with the practice of closing over the noon hour. This will bring it in line with clerk's offices in neighboring Lake and LaPorte counties, and eliminate the hardship posed for the public and law offices, she said.

She also intends to use her campaign Web site to provide information about the office and as a way to be contacted by e-mail.

Dick lauded Brewer's efforts to modernize the office and increase access by installing public computer terminals. He intends to continue that effort and said he has no problem asking the county council for the necessary funding.

He also intends to continue the push to make polling places more accessible to the disabled.

"It is critical we do not disenfranchise anyone who can legally vote," he said.

Fish also mentioned improving accessibility at the polls, in addition to periodically evaluating efficiency in the office and adjusting assignments where necessary to balance work loads.

"This is a business," she said. "We're there to serve the public."

With that in mind, Fish said she intends to look into using her staff to assist child-support recipients in dealing with officials in Indianapolis.

"With new administrations, come new ideas," she said.

Dick said he plans to address the problems associated with storing paper records by having more documents copied on electronic storage.

He is also concerned about the lack of storage space and maintenance for the county's new voting equipment. He proposes storing the electronic portion of the equipment in the same room where they can be plugged in periodically as required.

Posted by Marcia Oddi on Thursday, October 19, 2006
Posted to Indiana Courts

Wednesday, October 18, 2006

Law - 7th Circuit hears Indiana voter ID case

Today the 7th Circuit heard oral arguments in the Indiana voter ID case (for background, start with this ILB entry from yesterday).

The Election Law Blog has a good report based on a review of the oral argument (here is the link to the MP3 of the argument).

Here are links to some earlier ILB entries on voter ID laws.

Here is the AP coverage, by Tom Coyne. Some quotes:

CHICAGO (AP) -- A federal judge on Wednesday sharply questioned arguments that Indiana's voter identification rule is unfair to poor, elderly, minority and disabled voters, saying opponents have failed to find a single person unable to cast a ballot under the new law.

"By not even having found one of these people, that does not convey substantial disenfranchisement," Judge Richard Posner told attorney Ken Falk of the American Civil Liberties Union of Indiana during oral arguments before the 7th U.S. Circuit Court of Appeals. * * *

Posner asked Falk why, if the law limits who can vote, the ACLU and Democrats could not find a single person unable to vote under the new law.

"What if there is nobody in Indiana in that position?" Posner asked.

He also asked why Democratic state Rep. William Crawford of Indianapolis, who was among those challenging the law, objected to showing his ID to vote.

"Is he shy, or is it a bad photo?" Posner asked.

"He claims he's offended," replied Thomas M. Fisher, the Indiana Attorney General's solicitor general, who argued for the state.

Falk argued that the law does affect some voters. He noted that it allows people older than age 65 to vote by absentee ballot without showing ID but does not allow them to wait until Election Day to vote.

He also said that just because the plaintiffs did not find people who would be prohibited from voting under the law does not mean they do not exist.

"There is evidence that there are people who don't have a driver's license or state ID," he said. "There are people who in three weeks will not be allowed to vote."

Fisher denied that the law is too cumbersome, noting that everyone entering the federal court building Wednesday had to show an ID.

"We're not asking them to go to the moon. We're asking them to bring an ID," he said.

Circuit Judge Terence Evans asked Fisher why no one in Indiana had ever been charged with impersonating someone at the polls if the problem is so widespread. Fisher said such crimes are difficult to detect.

Falk, however, said the state was attacking the wrong problem. Voter fraud in Indiana has involved absentee ballots, which do not require photo IDs, he said. * * *

Posner indicated it was unlikely the court would make a decision before the Nov. 7 general election.

Posted by Marcia Oddi on Wednesday, October 18, 2006
Posted to Ind. (7th Cir.) Decisions

Ind. Courts - "County officials consider City Court subsidy"

Tara Layne, Goshen News staff writer, reports:

Elkhart County officials have not yet reached a decision about whether to help pay for Goshen City Court.

Goshen city officials have said that without the county’s help, the court will have to close.

“We want to have some kind of idea by Dec. 1 or possibly November,” County Commissioner Mike Yoder said this morning regarding the county’s position on the issue.

City officials need to make the decision about the court’s future by the end of the year, but they had hoped to make the decision sooner. The decision to close a city court must be made during a non-election year for the city. 2007 is a city election year.

Yoder said county officials have discussed the options of subsidizing the court or closing it and absorbing the caseload through the county court system. At this point, no option is preferred over any other, he said. “I have heard from quite a few constituents who want to keep the local court,” he said.

According to Goshen Mayor Allan Kauffman, the court had an operational deficit of $65,000 in 2005. With a budget of $431,000 this year, a property tax subsidy of at least $40,000 is expected. Kauffman said recently that while he wants to keep City Court, he is not willing to approve a budget for the court that results in a large property tax subsidy.

The issue is scheduled to be discussed Tuesday night at the Goshen City Council meeting.

See earlier entry from Oct. 2nd headed "Goshen City Court is losing money, and its future is in jeopardy."

Posted by Marcia Oddi on Wednesday, October 18, 2006
Posted to Indiana Courts

Ind. Gov't. - Goshen paper opines "Boost budget of state access counselor"

This editorial today from the Goshen News indicates the Public Access Counselor has state-wide impact:

Indiana officials are always looking to trim costs and save taxpayer money. But despite a need to be careful with funds, the state’s public access counselor should not be given short shrift.

Stephen Key, general counsel for the Hoosier State Press Association, noted that Gov. Mitch Daniels and his staff have reacted favorably to a request to boost the access counselor’s budget.

The budget has been flat since the Legislature made the office a permanent state agency in 1999. Key said the original plan was to give the counselor a second attorney, but Karen Davis now has an administrative assistant because she couldn’t compete with other agencies to attract a quality attorney.

With a budget increase, Davis will be able to afford both the assistant and a second attorney.

The office’s annual report notes that nearly half of the inquiries and complaints came from the public. Between July 1, 2005, and June 30, 2006, a total of 1,880 inquiries and complaints were received, including 222 from the media, 712 from the government and 946 from the public.

This suggests the public is receiving the most benefit from the agency, which is the proper focus. The counselor also made 32 educational presentations, although another staffer should provide time for the official to travel to outside Indianapolis more frequently and visit other parts of the state.

Many different individuals and governmental entities were served, however. For instance, a complaint from a staffer at the Notre Dame Legal Aid Clinic was supported by the counselor, who said the Noble County prosecutor’s office was charging too much for copying records. The charge of $1,595 was deemed excessive.

Also, a complaint from a Phoenix resident was backed by the access counselor, who said the Elkhart County prosecutor is required to disclose any non-exempt records he maintains.

It may be cliché, but the public’s business is public business. It is not too much to ask for state government to maintain an office with a $206,000 annual budget dedicated to ensuring this.

Here is the PAC opinion re the Noble County Prosecutor, referenced above. The conclusion: "The Noble County Prosecutor’s Office violated the Access to Public Records Act when it charged the Notre Dame Legal Aid Clinic a copying fee that exceeded the limits established by the Access to Public Records Act." The prosecutor was charging the legal clinic $1.00 per page for copying.

Here is the PAC opinion re the Elkhart County Prosecutor. Here is the PAC website, and here is its most recent Annual Report.

Posted by Marcia Oddi on Wednesday, October 18, 2006
Posted to Indiana Government

Ind. Courts - Threat reported outside Jackson County Courthouse

Aubrey Woods of the Seymour Tribune reports:

BROWNSTOWN - Police continue to investigate an altercation Tuesday afternoon apparently stemming from a family dispute that began in the Jackson County Courthouse and continued outside.

No arrests were made, although police plan to seek charges against at least one of those involved in the argument, Jackson County Sheriff's Department Detective Sgt. Stan Darlage said today.

The incident, investigated by Detective Rick Blaker Jr. and Officer Bob Lucas, stresses the need for security at the county's court, Jackson Circuit Judge Bill Vance said this morning.

The argument began with a dispute involving a child custody, visitation or support issue, Darlage said.

A man involved in the incident threatened to retrieve a gun and shoot someone at one point during the incident, Darlage said. That man was gone when police arrived, but statements were taken from witnesses.

The incident was initially reported when someone in the clerk's office at the court set off a panic alarm at 4:05 p.m. Tuesday.

Vance, who has been pushing for increased security measures for his court, said this morning that he was aware an incident may have happened, but he did not know any of the details.

Vance also restated that it's not a question of if something is going to happen, but when is it going to happen, at the courthouse.

Posted by Marcia Oddi on Wednesday, October 18, 2006
Posted to Indiana Courts

Ind. Courts - Veteran battles attorney for Bartholomew bench

Chris Schilling of the Columbus Republic writes:

A local attorney faces one of Bartholomew County's longest-serving judges in the race for Superior Court 1 judge.

Democrat Eric Hayes is making his first bid for an elected office, while incumbent Republican Chris Monroe is seeking his fourth term.

In the past year, Monroe has changed the way Superior Court 1 operates by drafting a rule that directs all domestic violence cases to his court.

Hayes said he thinks specializing courts can be beneficial and said he believes the county needs a court to handle drug cases.

Monroe, who has served as Superior Court 1 judge since 1988, said designating certain types of cases to one court helps in several ways.

"Different kinds of cases present different challenges," Monroe said. * * *

Hayes, a local attorney since 1988, also said consistency in decisions can be enhanced when one court is designated to handle a particular type of case.

"Not all cases are similar, and not all parties are exactly alike, but when they are similar the judge's decision should be more consistent and fair," Hayes said.

He said failing to change or experiment with alternative methods that may be more effective is a downside.

Judges should consider a designating one court to hear drug cases, similar to how Superior Court 1 hears all domestic violence cases, Hayes said.

Posted by Marcia Oddi on Wednesday, October 18, 2006
Posted to Indiana Courts

Ind. Decisions - Court of Appeals issues 7 today (and 18 NFP)

For publication opinions today (7):

Porter County Development Corporation v. Citibank (South Dakota), N.A.

State of Indiana, et al. v. Eugene Young, et al.

Randy McVey, et al. v. James Sargent, et al.

Roger Dale Bowles v. Griffin Industries

Mary Beth Higgins, et al. v. State of Indiana, et al.

Maureen Reel and Thomas Dullen v. Clarian Health Partners, Inc.

Betty Truelove v. Wayne Truelove, Jr., et al.

NFP civil opinions today (7):

Florence A. Horn, individually and Florence A. Horn as Trustee v. Carl D. Ousley and Janet Ousley (NFP)

William Earl Ross v. Jan B. Berg (NFP)

Sidney Seymour v. Penny Lane (NFP)

Estate of William Drake v. Springs Valley Bank (NFP)

Paternity of M.J.K., Janelle M. Rensberger v. Joseph C. Karnes (NFP)

Cynthia E. Payne v. Review Board of the Dept. of Workforce Development (NFP)

Frances L. Ashton v. City of Indianapolis (NFP)

NFP criminal opinions today (11) (link to cases):

Aaron J. Warren v. State of Indiana (NFP)

Ralph D. Pace v. State of Indiana (NFP)

Gregory S. Davis v. State of Indiana (NFP)

M.H. v. State of Indiana (NFP)

Charles R. Weaver v. State of Indiana (NFP)

Christopher Hudson v. State of Indiana (NFP)

Jeffrey Carver v. State of Indiana (NFP)

Matthew Verbosky v. State of Indiana (NFP)

David Alverson v. State of Indiana (NFP)

Marilyn Kimbro v. State of Indiana (NFP)

Richard A. Rolland v. State of Indiana (NFP)

Posted by Marcia Oddi on Wednesday, October 18, 2006
Posted to Ind. App.Ct. Decisions

Courts - Yes on All Judges

"Yes on All Judges: All of the state Supreme Court and appellate jurists on the ballot deserve to keep their jobs." That is the headline to this editorial today in the LA Times. Some quotes, relevant not only to California:

California's up-or-down vote on appellate justices is meant to balance judicial independence with public oversight. It doesn't always work out that way; justices tend to either be rubber-stamped at the ballot box or targeted for defeat by single-issue activists. In 1986, voters ousted Chief Justice Rose Bird and associate justices Joseph Grodin and Cruz Reynoso after a campaign focusing on their rulings to delay executions or overturn death sentences. No justices have been tossed out since, but not for lack of trying.

A more subtle danger to the courts' integrity is voters who fail to read up on the justices or, worse, flippantly vote no because of any one of a number of specious reasons. But judicial independence depends on citizens learning as much as possible about the courts and the justices.

To help Indiana voters attain that knowledge, the ILB has created resource pages for the 2006 Indiana Appellate Judicial Retention Election. As reported in this entry on Sunday:
There is a good deal of useful information on the ILB Resource Page to help voters learn more about the appellate courts and the justices and judges -- biographies of each candidate, results of the state bar association poll of lawyers, background articles on the way appellate judges are selected in Indiana.

New this weekend on the Resources Page is a table providing links to online webcasts in which the judges and justice up for retention this year participated.

Early in the upcoming week, the ILB hopes to post one final resource for voters -- answers from the judges and justice to a series of questions posed by the ILB, somewhat along the lines of Howard Bashman's "20 Questions for the Appellate Court Judge." Watch for it.

Posted by Marcia Oddi on Wednesday, October 18, 2006
Posted to Courts in general

Courts - "South Dakota to Vote on Ending Judicial Protections"

"South Dakota to Vote on Ending Judicial Protections" was the title to this Nina Totenberg NPR report today on "Morning Edition."

South Dakotans will vote next month on a proposed state constitutional amendment that would strip judges, jurors, and other state officials, of their immunity from lawsuits for their official actions. The proposal has alarmed not only judges, but also large swathes of South Dakota society.
Listen to it here.

Posted by Marcia Oddi on Wednesday, October 18, 2006
Posted to Courts in general

Courts - More on: Hamilton Ohio Naked Prosecutor has Indiana connection

Updating this ILB entry from Oct. 11th, the Cincinnati Enquirer reports today:

HAMILTON – A city prosecutor has been fired for alleged nudity in a public building, following revelations that he had “been doing similar things for about the past five years.”

In documents released today, Law Director Hillary Stevenson told Scott Blauvelt, 35, that he was terminated from his job with the city. He had been a city prosecutor since March 2005.

“The behavior and acts committed by you...have adversely affected the City of Hamilton and the Municipal court and their personnel,” she wrote Tuesday. “Moreover, they have affected the credibility of this office and all of its employees. The damage done is irreparable, so too perhaps is the damage to you personally.”

Blauvelt was charged with two counts of indecent exposure after security cameras captured him walking around nude in Hamilton’s Government Services Center on Oct. 4 and Oct. 5. He was placed on a paid administrative leave Oct. 6.

His lawyer, Mike Gmoser, suggested that Blauvelt’s nude promenades may have resulted from mental illness, medication and/or residual effects of a brain injury he suffered in a car wreck last year.

But authorities said Blauvelt was nude during that wreck, too. Blauvelt told investigators that: “I have been doing similar things for about the past five years but I don’t know why,” Stevenson’s letter says.

Posted by Marcia Oddi on Wednesday, October 18, 2006
Posted to Courts in general

Ind. Courts - "Judge Spindler’s retirement opens seat"

Kara Lopp of the Fort Wayne Journal Gazette is reporting:

The victor of a primary election recount will square off against a longtime local attorney in the Nov. 7 general election to become the next Noble Superior Court 1 judge.

Attorneys Robert Kirsch and Jon Owen are looking to fill the judgeship left vacant when current Judge Stephen Spindler retires this year. Currently, Indiana judges are paid $110,500 a year and are elected to six-year terms.

After a recount, Kirsch, 53, of Ligonier, won the Republican primary election in May with 1,419 votes, just five more votes than Albion attorney Steven Hagen received. Hagen had asked for the recount.

Kirsch, who said he’s spending much of his weekends campaigning door to door, said his main campaign issue has remained unchanged from the primary election. He aims to reduce the amount of time it takes for cases, especially criminal cases, to be resolved. * * *

Democratic challenger Jon Owen, 55, said Kirsch’s aim to reduce the amount of time it takes cases to get through court isn’t anything new. It’s something he’d work toward too, he said.

“That’s the desire of anyone going into office,” he said. “Nobody … sees any benefit in lingering cases, but everybody’s hands are tied based upon what’s going on in the system.”

A public defender in Noble County for 18 years, Owen said his experiences as a certified civil mediator and domestic mediator for at least five years have provided him tools he could bring to the table as judge. He also has experience representing juveniles and banks, he said.

Posted by Marcia Oddi on Wednesday, October 18, 2006
Posted to Indiana Courts

Law - Prerecorded calls stymied at both federal and Indiana levels

Cindy Skrzycki, who writes The Regulators column every week in the Washington Post, reports:

The Federal Trade Commission effectively slammed the phone down on the U.S. telemarketing industry earlier this month, rejecting a request to allow prerecorded calls to consumers without their expressed consent.

Acting on a 2004 petition filed by Voice Message Broadcasting Corp. of Costa Mesa, Calif., the FTC decided it wouldn't allow companies to use taped calls, even if they claimed a "prior business relationship" with the consumer. The only way around the ruling, the agency proposed, would be if the customer consented in writing that he was willing to accept such calls.

"This adds protection for consumers so they don't have to deal with prerecorded messages," said Allen Hile , assistant director of the FTC's Division of Marketing Practices.

The decision followed an outpouring of 13,600 comments -- all but 600 in opposition to the request. Many pleaded with regulators not to create a loophole in the National Do-Not-Call Registry, which allows consumers to limit the telemarketing calls they receive and contains some 130 million numbers. [ILB added emphasis]

"The Do-Not-Call list has been enormously successful," said Marc Rotenberg , executive director of the Electronic Privacy Information Center , a District-based group that monitors privacy issues and filed comments against the industry request. "More people signed up for it than voted in the last election -- Bush and Kerry combined. It's a very clear statement Americans don't want to hear from telemarketers."

Meanwhile, Indiana's attorney general, Steve Carter, has begun enforcing laws against prerecorded calls at the State level. See for example, this press release from Sept. 18, 2006:
Jeffersonville, IN – Indiana Attorney General Steve Carter is seeking a preliminary injunction and has filed a lawsuit against the Economic Freedom Fund for making illegal, pre-recorded telephone calls to Indiana consumers in violation of the state’s statute regulating automated phone calls.

“The key is receiving information that provides some details of the call, including the number that was called and the time the call was made,” Carter added. “Whether based out-of-state or in-state, anyone wanting to place pre-recorded calls into Indiana must abide by the statute.”

At least seven complaints have been filed against Economic Freedom Fund for playing pre-recorded phone calls to the consumers without receiving their permission prior to playing the recording. The information provided to the attorney general’s office indicates the calls have been made since at least last Monday, September 12, 2006.

“Taking immediate action to stop any further calls to the state is important to protect people’s privacy during the time that the case progresses through the courts,” Attorney General Steve Carter said. “The quick action by people who actually received the calls to get their information to the attorney general’s office was critical in being able to take this action so quickly.”

This is the seventh company that the state has either filed suit against, or reached court-ordered agreements with for alleged violations of federal or state statutes regulating automated and pre-recorded calls.

Indiana’s “Automatic Dialing Machine” statute [IC 24-5-14-5] specifically states:

Sec. 5. (b) A caller may not use or connect to a telephone line an automatic dialing-announcing device unless:
(1) the subscriber has knowingly or voluntarily requested, consented to, permitted, or authorized receipt of the message; or
(2) the message is immediately preceded by a live operator who obtains the subscriber's consent before the message is delivered.

Complaints against automated calls can be made at www.IndianaConsumer.com.

The lawsuit and preliminary injunction were filed in Circuit Court in Brown County, IN.

Posted by Marcia Oddi on Wednesday, October 18, 2006
Posted to General Law Related

Ind. Courts - "Candidates for Greene County judge face off in tight race "

"Candidates for Greene County judge face off in tight race" is the headline to a story today in the Indiana Daily Student by Sandra Arao Ameny. It begins:

In Greene County -- the county directly west of Monroe County where circuit court judges have held on to their jobs for decades -- a newly appointed incumbent circuit court judge is facing a challenger.

The race is now the most closely watched in the county.

Republican Erik "Chip" Allen, 33, has only been judge since July 31. He took office after Republican Gov. Mitch Daniels appointed him to replace Judge David K. Johnson, who has since joined the Indiana Alcohol and Tobacco Commission.

Democratic candidate Joseph Sullivan, a longtime Bloomfield attorney in his 60s, challenges Allen on the grounds that he is more experienced than Allen and more rooted in Greene County. He criticized his adversary for working outside Greene County.

"The other candidate hasn't even been in Greene County. He's been working in Clay County," Sullivan said. "I have civil and criminal experience in the courts. I have been a practicing attorney for 40 years, and I have been in the military. Allen has only been out of law school for seven years."

Allen said that his experience as an attorney and a judge outweighs his age. While he worked in Clay County as chief deputy prosecutor, he continued to reside in Greene County, where he maintained a private law practice, he said.

Posted by Marcia Oddi on Wednesday, October 18, 2006
Posted to Indiana Courts

Tuesday, October 17, 2006

Law - 7th Circuit hears Indiana voter ID case tomorrow

Updating yesterday's ILB entry, which covered the Missouri Supreme Court decision striking down their voter ID law and noted that Wednesday would be the oral arguments in Chicago, before the 7th Circuit, in the appeal of Federal District Judge Sarah Evans Barker's decision upholding Indiana's voter ID law, this afternoon Mike Smith of the AP has coverage on the eve of the arguments. Some quotes:

Democrats planned to urge a federal appeals court on Wednesday to overturn a state law requiring people to show photo identification issued by the state or federal government to cast regular ballots at the polls.

The state attorney general's office will ask a panel of the 7th Circuit Court of Appeals in Chicago to uphold the law, which a federal judge decided in April could stand because Democrats failed to prove that it was too burdensome.

The Indiana Democratic Party filed a lawsuit against the law last year after the Republican-controlled Legislature approved legislation requiring most voters to show government-issued photo IDs before casting a ballot.

Democrats claim that the law unfairly affects the poor, minorities, people with disabilities and the elderly who may struggle to obtain a photo ID. Democrats said earlier that nearly 1 million registered voters in the state did not possess a required ID.

Republicans and the office of Secretary of State Todd Rokita - the defendant named in the suit - say the law is designed to prevent voter fraud.

Oral arguments before the appeals court are set for Wednesday morning in Chicago, with Indianapolis attorney William Groth arguing for the Democrats and Thomas Fisher with the Indiana attorney general's office representing the state. * * *

Some other states' voter identification laws have been challenged in court this year:

_ The Missouri Supreme Court on Monday struck down that state's new law requiring voters to show government-issued photo IDs, saying it was an unconstitutional infringement on the right to vote.

_ The 9th U.S. Circuit Court of Appeals this month blocked enforcement of Arizona's voter ID law.

_ A Georgia judge in September said the latest version of that state's photo ID requirement was unconstitutional.

Rokita said Tuesday that although Missouri's law was similar to Indiana's, that case and the one in Georgia have been handled by state courts. And although the law in Arizona was struck down by a federal appeals court, he said that law also involved immigration issues.

Posted by Marcia Oddi on Tuesday, October 17, 2006
Posted to Ind. (7th Cir.) Decisions

Ind. Decisions - Court of Appeals issues 0 today (and 18 NFP) [Updated]

For publication opinions today (0):

NFP civil opinions today (4):

In Enchanted Hills Community Association, Inc. v. Daniel R. Lyon and Roxanna Lyon (NFP), a 9-page opinion, Judge Baker writes:

The Lyons live in a subdivision in Cromwell called Enchanted Hills. Although the property owners in the subdivision live on streets such as Tiny Tim Lane, Snow White Road, Candy Cane Lane, Cinderella Drive, and Goldilocks Lane, the Lyons’ Prince Charming began to look suspiciously amphibious when they learned that their property management association was planning to erect a fence along one side of their property, impeding their access to a publicly-dedicated area.

Appellant-defendant Enchanted Hills Community Association, Inc. (Enchanted Hills), appeals from the trial court’s order granting summary judgment in favor of appellees-plaintiffs Daniel R. and Roxanna L. Lyon. Specifically, Enchanted Hills argues that the grant of summary judgment was erroneous because there is a genuine issue of material fact with respect to the ownership of the alleged public way at issue. Finding no error, we affirm the judgment of the trial court. * * *

We draw two conclusions from this unambiguous language. First, although it is true that, in examining the Plat, the Public Area is clearly intended to provide access to the boat lots, nothing in the documents limits the Public Area to that use alone. Second, the Public Area is dedicated to the use of the public and owners of property in Enchanted Hills. The Lyons fall into both categories. Inasmuch as Lot 344 abuts the Public Area, we can only conclude based on this unambiguous language that their ownership interests in Lot 344 and the Public Area include the right to use the common boundary line of the two parcels of land as a means of ingress and egress. Consequently, the trial court properly determined as matter of law that the Lyons are entitled to summary judgment on their complaint. The judgment of the trial court is affirmed.

Max W. Bedwell, et al. v. Robert E. Springer, et al. (NFP) - "The Attorneys were entitled to judgment as a matter of law because the Bedwells filed their complaint after the expiration of the statute of limitations, and, in the case of Jennie, released any malpractice claim."

Anita Thomas, et al. v.Town of Winona Lake (NFP) - "Finding that the grantor reserved fee title in the property at issue for itself and then deeded its interest to the Town, we affirm the judgment of the trial court."

In Gilmore Construction v. IDOT (NFP), a 13-page opinion, Judge Baker writes:

Appellants-plaintiffs Gilmore Construction, Inc., and Gary and Ruth Gilmore (collectively, the Gilmores) appeal the trial court’s grant of appellee-defendant Indiana Department of Transportation’s (INDOT) motion to dismiss the Gilmores’ action against INDOT for inverse condemnation, conversion, slander of title, and tortious interference with a contractual relationship. Specifically, the Gilmores contend that dismissal was improper because the allegations set forth in their complaint are sufficient to state claims upon which relief could be granted. After reviewing this matter under a summary judgment standard because the trial court considered a number of exhibits that were attached to the Gilmores’ complaint, we conclude that the designated evidence establishes that INDOT was entitled to judgment as a matter of law.
NFP criminal opinions today (14) (link to cases):

Daniel Neuenschwander v. State of Indiana (NFP)

M.O. v. State of Indiana (NFP)

Richard L. Hadley v. State of Indiana (NFP)

Johnny Wayt v. State of Indiana (NFP)

John Q. Adams v. State of Indiana (NFP)

Mark T. Jones v. State of Indiana (NFP)

Kenneth Wagener v. State of Indiana (NFP)

Michael Dearman v. State of Indiana (NFP)

Jason Goddard v. State of Indiana (NFP)

Michael J. Marcosa v. State of Indiana (NFP)

Djuan Edwards v. State of Indiana (NFP)

Demond Anderson v. State of Indiana (NFP)

Barbara Garcia v. State of Indiana (NFP)

Timothy Weaver v. State of Indiana (NFP)

Posted by Marcia Oddi on Tuesday, October 17, 2006
Posted to Ind. App.Ct. Decisions

Courts - Sealed filings more common before Supreme Court, according to reporter

Tony Mauro writes in The New York Law Journal

[After discussing Gonzales v. Planned Parenthood] But in some of the other cases, the justification for secrecy is less obvious. And to some, the day's actions symbolize a little-noticed trend over the past decade toward allowing secret filings at the Supreme Court. Whereas decades ago such motions were discouraged and often denied at the Court, now they are routinely granted. No motion to file under seal has been denied since 2003. The Court itself votes on the motions without any hearing at which opposition can be heard. Typically, when the Court grants a motion to seal, a redacted version is made part of the public record.

The number of filings under seal is still tiny -- only 12 in this calendar year out of more than 7,000 petitions filed. And Court insiders assert that the spike in motions granted is a fluke, not a reflection of any change in policy. * * *

But the number of cases filed under seal was significantly lower in the 1990s and 1980s, and sealing files was rarely done before then, reflecting the Court's historical preference for conducting its business in public.

Stephen Shapiro, co-author of Supreme Court Practice, said that especially with the current mix of business and intellectual property cases, as well as post-9/11 disputes, the conservative Court, under both William Rehnquist and now John Roberts Jr., may be more sympathetic than it once was to sealing Court files.

"Conservative justices might believe that a seal was proper to protect trade secrets and real government secrets, bearing on national security," said Mr. Shapiro, a partner at Mayer, Brown, Rowe & Maw.

But Mr. Shapiro sees the trend permeating all federal courts, not just the Supreme Court, and he is concerned.

"Filings under seal are attempted in cases where the seal is not necessary or proper, and the Court should be watchful to prevent abuses of this kind," he said.

At the Supreme Court level, he said, it is often a matter of convenience for lawyers on both sides of a case to leave under seal a filing or opinion that was sealed by a judge at an earlier stage. * * *

But private petitioners are not the only ones that seek to file papers under seal. The state of Maine did so in Rowe v. New Hampshire Motor Transport Association, and the motion was granted Oct. 2. At issue is whether Maine's law prohibiting the sale by mail of tobacco products to minors is pre-empted by a federal law that bars states from regulating air and land delivery services.

United Parcel Service, one of the carriers affected by the case, requested that certain information in the record about how it tracks deliveries be kept confidential. Both parties tried to narrow the amount of text to be redacted, but some remained, according to Maine Deputy Attorney General Paul Stern.

"I sent it over to UPS, and there were only a couple of small things they wanted redacted, and we said fine," said Mr. Stern. "I didn't care. We didn't particularly want to ask for sealing."

The brief as filed with the high court contains several blackened lines of type masking sentences that appear to refer to UPS procedures. Mr. Stern added, "You can get an excellent understanding of the case without these facts." * * *

The Court's preference for keeping its files public goes back decades. One milestone was the landmark Pentagon Papers case of 1971, in which Solicitor General Erwin Griswold asked the Court to allow it to file secret briefs and even to hear the case in camera.

Over the objection of three justices in New York Times v. United States, the Court rejected the proposal for a closed oral argument, but it did permit some filings under seal.

The Court even enshrined the public interest in open court records in a 1978 case, in which it said, "It is clear that the courts of this country recognize a general right to inspect and copy public records and documents, including judicial records and documents."

That case was invoked in the 2003 litigation over the McCain-Feingold campaign finance law. The Court still granted a dozen motions to seal different parts of the massive briefing in the case, including records of Federal Election Commission investigations in which witnesses had been promised confidentiality.

Most of the time, motions to seal records are made without objection, but in a post-9/11 case, M.K.B. v. United States, media organizations sought to intervene. At both the district court and Eleventh Circuit levels, the case and filings were secret. It was only through an error at the appeals court clerk's office that a reporter for the Miami Daily Business Review, an affiliate of the Law Journal, was able to determine what the case was about: a habeas proceeding brought by Mohamed Kamel Bellahouel, an Algerian native who had been held in federal prison in part because as a waiter, he had served meals to two of the 9/11 hijackers.

When the petition reached the Supreme Court, several media organizations -- including ALM, which publishes the Law Journal -- sought to intervene to open the record. The motion was denied.

Posted by Marcia Oddi on Tuesday, October 17, 2006
Posted to Courts in general

Courts - Criminal records officially "expunged" may remain unofficially available

Adam Litpak of the NY Times has an interesting report today on "erased" criminal records. Some quotes:

In 41 states, people accused or convicted of crimes have the legal right to rewrite history. They can have their criminal records expunged, and in theory that means that all traces of their encounters with the justice system will disappear.

But enormous commercial databases are fast undoing the societal bargain of expungement, one that used to give people who had committed minor crimes a clean slate and a fresh start.

Most states seal at least some records of juvenile offenses. Many states also allow adults arrested for or convicted of minor crimes like possessing marijuana, shoplifting or disorderly conduct to ask a judge, sometimes after a certain amount of time has passed without further trouble, to expunge their records. If the judge agrees, the records are destroyed or sealed.

But real expungement is becoming significantly harder to accomplish in the electronic age. Records once held only in paper form by law enforcement agencies, courts and corrections departments are now routinely digitized and sold in bulk to the private sector. Some commercial databases now contain more than 100 million criminal records. They are updated only fitfully, and expunged records now often turn up in criminal background checks ordered by employers and landlords. * * *

Private database companies say they are diligent in updating their records to reflect the later expungement of criminal records. But lawyers, judges and experts in criminal justice say it is common for people to lose jobs and housing over information in databases that courts have ordered expunged.

These critics say that even the biggest vendors do not always update their records promptly and thoroughly and that many smaller ones use outdated, incomplete and sometimes inaccurate data.

Lida Rodriguez-Taseff, a lawyer in Miami, tells her clients that expungement is a waste of time. “To tell someone their record is gone is essentially to lie to them,” Ms. Rodriguez-Taseff said. “In an electronic age, people should understand that once they have been convicted or arrested that will never go away.”

Judge Stanford Blake, whose court often enters expungement orders, said his inability to make them effective had left him feeling frustrated and helpless.

“It’s a horrible situation,” said Judge Blake, the administrative judge of the criminal division of the Eleventh Circuit Court in Miami. “It’s the ultimate Big Brother, always watching you.”

The rise in the availability of criminal histories has been accompanied by a surge in demand for them. Since the attacks of Sept. 11, 2001, criminal background checks have become routine in many employment applications.

Posted by Marcia Oddi on Tuesday, October 17, 2006
Posted to Courts in general

Ind. Gov't. - East Chicago legal bills top $1.5 million

The Munster (NW Indiana) Times has a story today by Joe Carlson that begins:

East Chicago has spent at least $1.5 million in the past year defending itself from wrongful termination lawsuits from about two dozen city workers who were fired after Mayor George Pabey took office in 2005.

City Attorney Carmen Fernandez defended the spending as necessary, while Councilman Anthony Copeland said Pabey's officials could have saved money by settling the lawsuits.

"If you look at a lot of these cases, they're meritless," Fernandez said. "Even if its cheaper, it would be illegal to give someone some money when they don't have a claim. ... You have to take a stand on some of these types of cases."

Copeland, who intends to run against Pabey in the 2007 mayoral primary, said Pabey's attorneys have settled several termination lawsuits that they inherited last year from former Mayor Robert Pastrick's administration. Those cases settled for about $30,000 apiece, he said.

"These costs are going to continue to skyrocket," Copeland said. "Until we put a fair and equitable system in place, where people can see why they were laid off, we're going to continue down this road.

Posted by Marcia Oddi on Tuesday, October 17, 2006
Posted to Indiana Government

Ind. Courts - Cost of death penalty trial factored into Pike County decision

Jimmy Nesbitt of the Evansville Courier& Press reports today:

By the time it's finished, the death penalty trial of accused killer Nicholas Harbison could cost Pike County hundreds of thousands of dollars.

For a rural county with a population around 13,000, the expense can be a huge burden. In some states, such as Texas, death penalty cases have bankrupted small county governments. * * *

Cost was a factor in the decision to pursue the death penalty against Harbison, 23, charged with three counts of murder and one count of attempted murder, said Darrin McDonald, Pike County chief deputy prosecutor.

But ultimately the wishes of the victims' families, who have repeatedly voiced their support for the death penalty, weighed heavier, he said.

"On something that is extreme as anything that you can ever imagine, I just figured that you can't weigh humans' lives, especially 17-, 18-, 20-year-olds," McDonald said. "But really, any human life - you can't evaluate that in terms of cost." * * *

Harbison has two attorneys, Steven Ripstra and Nathan Verkamp. Both are court-appointed public defenders.

Ripstra has requested a change of venue and discussed hiring a mitigation expert and private investigator, whose services can run more than $100 an hour.

To pay for those expenses, McDonald will likely seek aid from the Indiana Public Defender Commission.

The commission was created in 1989 to help small counties pay for death penalty cases. It has an annual fund of around $10 million that is used to reimburse counties for both capital and noncapital cases, said Larry Landis, executive director of the Indiana Public Defender Council.

Counties can be reimbursed for up to 50 percent of expenses associated with a death penalty case. To be eligible, a defendant must have two attorneys and the support services during the trial must comply with state standards.

"One case can cost $500,000," Landis said. "For a small county that's an enormous expenditure."

Since 1976, 17 people have been executed in Indiana, according to the Death Penalty Information Center.

Currently, there 37 people on Indiana's death row. Pike County's last death penalty case was in 1981. * * *

"If cost is the issue, when, if ever, would you support the death penalty or pursue it in Pike County?" said McDonald, who reviewed the Dillon case before deciding to seek the death penalty against Harbison.

"And if you look at cost as being a determinative issue, you might as well hang a banner at the end of the county when you drive into Pike County that says we're not going to pursue the death penalty no matter who it is ... (because) we just don't have the money. It just doesn't seem like it should fall out that way."

Posted by Marcia Oddi on Tuesday, October 17, 2006
Posted to Indiana Courts

Monday, October 16, 2006

Ind. Courts - Perry County's first woman circuit-court judge

The Tell City/Perry County News reports today:

Local voters are just three weeks away from electing the first woman to don the judicial robe of Perry County's circuit-court judge. Deputy Perry County Prosecutor Lucy Goffinet is running unopposed for the office in the Nov. 7 election.

The Democrat beat incumbent James McEntarfer in the May primary.

A Cannelton native, Goffinet has been Perry County's chief deputy prosecutor since 2004 and served as deputy prosecutor in Vanderburgh County from 2001 to 2004. She later worked as a deputy prosecutor in Warrick County before accepting a job in Perry County.

Goffinet holds a degree from the University of Southern Indiana and received her law degree from Southern Illinois School of Law.

Serving as the county's judge, Goffinet said during the primary-election season, was one of her career ambitions. “In my opinion, goals should be sought after, no matter what the age, and it has always been my goal to work in the Perry County prosecutor's office, and eventually become the Perry Circuit Court judge,” Goffinet said.

She said the county's court system can be a force for positive social change. The non-support of families, the neglect and abuse of children and the substance-abuse problem are all issues that “plague our county,” she said.

She has pledged to promote cooperative relationships between the court, law enforcement and other county offices and to administer an efficient court system. “I will work diligently to ensure the court system is (one of) cooperation and communication,” she said.

She also pledged to control the court's cost to the county.

Posted by Marcia Oddi on Monday, October 16, 2006
Posted to Indiana Courts

Law - Missouri Supreme Court strikes down voter ID law

Kelly Wiese of the AP is reporting:

JEFFERSON CITY, Mo. (AP) -- The Missouri Supreme Court struck down the state's new voter identification law Monday that would have required voters to show a photo ID card at the polls starting this fall.

A lower judge ruled last month that the ID requirement was an unconstitutional infringement on the fundamental right to vote. The state Supreme Court agreed in a 6-1 unsigned opinion.

From a Sept. 26 NY Times report:
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.
As reported by the ILB August 17th:
Oral arguments will be held on Wed., Oct. 18th at 9:30 a.m. before the 7th Circuit in the appeal from federal district Judge Sarah Evans Barker's decision in the Indiana voter ID challenge, Crawford v. Rokita.
The 127-page opinion by federal (SD Ind.) Judge Sarah Evans Barker, Indiana Democratic Party v. Rokita, is available via this ILB entry from April 15th. Judge Barker upheld the state voter ID law.

Here, thanks to How Appealing, is a link to today's Missouri Supreme Court opinion.

Posted by Marcia Oddi on Monday, October 16, 2006
Posted to General Law Related

Ind. Courts - Jill behrman trial begins today in Martinsville: secrecy remains an issue

The Indianapolis Star website is reporting this afternoon in a story by Tim Spalding headlined "Shotgun blast killed Jill Behrman" that:

Jill Behrman was killed by a 12-guage shotgun blast to the back of her head, Prosecutor Steve Sonnega told a jury today.

It’s the first time that information — compiled from anthropology and forensic reports — has been released.

Sonnega also told the jury that Myers owned a 12-gauge shotgun and was known to hunt in a remote area called Horseshoe Bend that is west of the site near Paragon where Jill Behrman’s remains were found in March 2003.

Sonnega spent 45 minutes outlining Myers’ connection to Behrman’s death and how Myers allegedly told at least seven people — including his maternal grandmother and aunt — facts about the case and information that only the woman’s killer would know.

According to Sonnega, on June 5, 2000 — a week after Behrman vanished during a morning bike ride — the Bloomington and Indiana University communities were involved in massive search efforts for Jill.

But Myers told his aunt by phone, “They haven’t found a body yet.”

Sonnega told jurors later that Myers’ statement was no coincidence.

“John Myers was talking about a death when everyone else was hoping — hoping that Jill would come home safe.”

From an earlier Star report today:
Morgan County Prosecutor Steve Sonnega told a judge that Jill Behrman's killer played a "cat and mouse" game with police – including once drawing them a map that showed the possible location of her body.

That hand-drawn map - which defendant John R. Myers II crafted during a jail stay in 2002 - was written one year before the remains of the IU student were found in a remote, wooded area of Morgan County.

It's just one of the scores of new details released today as prosecutors try to make their case that Myers killed Behrman, a charge that he has denied.

Earlier today the AP reported on a summary of the state's anticipated evidence unsealed today by Judge Christopher Burnham.

An AP story by Ken Kusmer from June 8th reported "The cause and manner of 19-year-old Jill Behrman's death and other autopsy results have been sealed since December 2003 by order of Morgan Superior Court Judge G. Thomas Gray. He refused to change that stance Thursday."

An August 26th ILB entry is headed "Judge denies TV station's request for witness lists in Behrman case". An August 9th ILB entry includes this quote from a report by Abigail Johnson of the Indiana Lawyer: "The case is before Morgan Superior Judge Christopher Burhnam; however, Dave Remondini, counsel to the chief justice, is handling media inquiries because of the attention on the case."

Yesterday Laura Lane of the Bloomington Hoosier Times reported:

The secrecy that has surrounded the investigation into the killing of Jill Behrman and the arrest of the man police say is responsible is unprecedented, and a threat to the open court process established by the U.S. Constitution.

That's the opinion of several experts who have spent their careers championing America's system of due process and the tenets of a free press.

John R. Myers II, 30, goes on trial Monday in Morgan Superior Court on a charge of murder. Since his indictment this past spring, news reporters who have sought access to what in other criminal cases are public records have been thwarted by a judge who refuses to release documents and who conducts hearings privately in his office.

Morgan Superior Court Judge Christopher Burnham, a lieutenant colonel in the Indiana Air Guard and a former U.S. Marine and Air Force officer, believes he does not have to release court documents that refer to once-secret grand jury information. He will not respond to reporters' requests to explain the in-chambers hearings - or anything else regarding the highly publicized and under-wraps case.

"This whole deal has been one of the strangest things I've ever run into, in 50 years of dealing with media access laws," said Richard Cardwell, who for decades was chief counsel and director of the Hoosier State Press Association. It was Cardwell who ushered Indiana's Open Door Law and Access to Public Records Act through Indiana's legislature.

Cardwell said Burnham's actions in regard to the Myers case are "so far out of the norm, it's frightening."

"We have been operating a couple of hundred years under the idea of an open court system, and we seem to have gotten along fine," Cardwell said. "And it's not just the media that should care when judges start shutting down access to public information. That same right protects the public, too."

On Sept. 6, the Indiana Judicial Center's community relations committee convened a special meeting to address five media access issues. One focused on Burnham's rationale that subject matter that was part of the grand jury proceedings that indicted Myers would not be released to the public - even in the public court file.

Several Indiana judges who sat in on the meeting - in person and by speaker phone - voiced concerns about the Morgan County judge's actions. * * *

[According to] Lucy Dalglish, a media lawyer and executive director of the Reporters Committee for Freedom of the Press.

"That sounds like something he should not be allowed to get away with," Dalglish said. "Once things move into the public courts, they are public. At this stage, the information the indictment is based on should be public. There is case law that says that."

She acknowledged that judges in high-profile cases have a difficult job.

"Obviously, what he is trying to do is maintain control, but there are only certain things he can do to do that. He should not be having hearings in chambers, and if he is, a court reporter should be making a transcript of what is going on and that should be made available."

She cautioned that judges should be careful when considering closing public access to court proceedings and documents filed in relation to them.

"We have a long-standing tradition in this country, under common law and U.S. Supreme Court precedent, that says the public has a right to be present for criminal trials. And that attaches to the documents and pretrial proceedings," Dalglish said.

She said if a judge finds "an incredible need, a compelling need" to keep information secret, he or she must hold a hearing and make specific findings of fact and give the media and the public a chance to object.

Burnham has not done that.

Posted by Marcia Oddi on Monday, October 16, 2006
Posted to Indiana Courts

Ind. Decisions - Court of Appeals issues 2 today (and 11 NFP)

For publication opinions today (2):

In Harold Galloway v. Kathryn Galloway, a 7-page opinion, Chief Judge Kirsch writes:

Harold Galloway (“Harold”) appeals the trial court’s property distribution in his dissolution of marriage to Kathryn Galloway (“Kathryn”), raising one issue that we restate as: whether the trial court’s divorce decree (“Decree”), which awarded Kathryn’s unvalued pension to her in its entirety, was an abuse of discretion. * * *

Here, the trial court was presented with no competent evidence of the estate’s only two sizable assets, namely a twelve-year-old business and a likely significant pension. Having failed to introduce evidence of the value of these assets, Harold is estopped from appealing the trial court’s distribution. The trial court’s Decree, including its division of personal property, is affirmed in all respects.

In Corey Mills v. State of Indiana, a 10-page opinion, Judge Barnes writes:
[Issue] whether Mills received ineffective assistance of counsel before pleading guilty, which caused his plea to be unknowing, unintelligent, and involuntary. * * * The post-conviction court correctly denied Mills’s PCR petition because he failed to establish that trial counsel misadvised him as to the maximum possible punishment he faced. We affirm.
NFP civil opinions today (5):

Hall Enterprises, Inc. d/b/a Schaumburg Audi v. Ronald L. Baker, M.D. and Deanne M. Baker (NFP)

Joseph E. Carter, Jr., and Sarah E. Ammons v. Valley Rural Electric Co. (NFP) - "The trial court did not abuse its discretion by denying Carter and Ammons’s request for an extension of time. We affirm."

James Bedree and Joseph Yovanovitch v. O'Daniel Ford, Inc. (NFP) - "[W]e find that the trial court properly dismissed Appellants’ Complaint based on the doctrine of res judicata because Yovanovitch was a party in the First Lawsuit which was dismissed with prejudice."

Aaron Robinson v. Sean Lucas (NFP) - "[W]e affirm the trial court’s denial of Stepfather’s petition for adoption of H.C.L."

Gerald L. Whalen v. Eddie Rohe and Patricia Rohe (NFP) - "Whalen argues in his reply brief that the trial court erred when it found that his remedies at law were adequate. However, because Whalen raised this issue for the first time in his reply brief, it is waived. See, e.g., Felsher v. University of Evansville, 755 N.E.2d 589, 593 n.6 (Ind. 2001) (holding that an argument was waived because it was raised for the first time in the reply brief); see also Ind. App. R. 46(C) (“No new issues shall be raised in the reply brief.”). As a result of the waiver, Whalen has failed to demonstrate that the trial court’s denial of his motion for a preliminary injunction is clearly erroneous."

NFP criminal opinions today (6) (link to cases):

Michael Olson v. State of Indiana (NFP)

James L. Alcorn, II v. State of Indiana (NFP)

Ronald J. Smith, Sr. v.State of Indiana (NFP)

Richard Posley v. State of Indiana (NFP)

William T. Bradley v. State of Indiana (NFP)

Harry G. Campbell v. State of Indiana (NFP)

Posted by Marcia Oddi on Monday, October 16, 2006
Posted to Ind. App.Ct. Decisions

Court - Justice Scalia debates ACLU president - available on C-Span

I watched this last evening and I thought it was outstanding!

Yahoo has the AP story about the debate, along with a brief clip (click on the label "Scalia Defends Positions in TV Debate").

Watch the entire 65 minute debate here at C-Span - this link leads directly to the video. Both Justice Scalia and American Civil Liberties Union president Nadine Strossen present their positions well. Notably, they call each other by their first names throughout the debate.

The AP story concludes:

Scalia, who has at times had a prickly relationship with the media, agreed to have C-SPAN televise Sunday's event live — a more recent accommodation as the court begins to show greater signs of openness under Roberts.

Posted by Marcia Oddi on Monday, October 16, 2006
Posted to Courts in general

Sunday, October 15, 2006

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

The Indiana Law Blog's Resource Page for the 2006 judicial retention election is now close to completion. The purpose is to provide information to those seeking to learn more about the judges and justice up for retention on the Nov. 7, 2006 ballot.

Justice Frank Sullivan Jr. of the Indiana Supreme Court and Chief Judge James S. Kirsch, Judge Terry A. Crone, Judge Ezra H. Friedlander, Judge Edward W. Najam Jr., and Judge Patricia A. Riley of the Indiana Court of Appeals are up for a "yes-no" vote on whether they should hold their offices for another 10 years.

There is a good deal of useful information on the ILB Resource Page to help voters learn more about the appellate courts and the justices and judges -- biographies of each candidate, results of the state bar association poll of lawyers, background articles on the way appellate judges are selected in Indiana.

New this weekend on the Resources Page is a table providing links to online webcasts in which the judges and justice up for retention this year participated.

Early in the upcoming week, the ILB hopes to post one final resource for voters -- answers from the judges and justice to a series of questions posed by the ILB, somewhat along the lines of Howard Bashman's "20 Questions for the Appellate Court Judge." Watch for it.

Posted by Marcia Oddi on Sunday, October 15, 2006
Posted to Indiana Courts

Courts - "Call of the West: Rein In the Judges"

"Call of the West: Rein In the Judges: Conservative ballot measures in many states would check judicial power. South Dakotans seek a right to sue jurists, Montanans to recall." That is the headline today to a front-page story in the Sunday LA Times by Stehpanie Simon. Some quotes:

DENVER — Judges across several Western states could soon face new limits on their authority and threats to their independence, as conservatives campaign for ballot measures that aim to rein in what they describe as "runaway courts."

Frustration among the right has been building for years, especially since the high court in Massachusetts legalized same-sex marriage in 2003. Politicians and pastors have accused judges of ignoring the public will and legislating from the bench.

South Dakota's ballot contains the most radical provision: It would empower citizens to sue judges over their rulings.

Other proposals would make Colorado the first state to impose term limits on top judges and give Montana residents the right to recall judges over any "dissatisfaction." In Oregon, an amendment would require Supreme and Appeals court judges to be elected by geographic district, so they reflect the values of conservative rural communities as well as the liberal legal establishment in Portland.

In three other states, ballot measures would also limit judicial authority, though that is not their primary intent. Proposition 90 in California aims to restrict government's right to condemn private property; it also takes elements of such cases out of judges' hands and entrusts them to juries instead. Nevada has a similar initiative. And a proposal in North Dakota would severely curtail the discretion judges have in settling custody disputes.

Supporters cast their efforts as populist and democratic, a way to make judges answer more directly to the citizens they serve. "This is a very measured and mild response to the perception that our courts are out of control," said John Andrews, a former legislator promoting the amendment to impose term limits in Colorado.

Opponents, however, warn that the initiatives would begin to dismantle the system of checks and balances set up under the U.S. Constitution.

"Judges are there to protect the minority from the tyranny of the majority. They are not there to do the popular will," said Doreen Dodson, a St. Louis attorney who chairs the American Bar Assn.'s committee on judicial independence. "They are accountable to the law and the Constitution."

States have always struggled to balance judicial independence and accountability, said Rorie Spill Solberg, a political scientist at Oregon State University. Lately, she said, that scale has tipped ever more toward accountability — and toward a notion that judges should respect, even represent, the will of the majority.

All but eight states ban partisan elections for judges in an effort to keep politics — and corruption — off the bench. But Solberg and others worry that the latest wave of changes would make judges more vulnerable to pressure from interest groups and even individuals. * * *

The American Bar Assn. is so concerned about the trend that it recently produced a DVD called "Countering the Critics," to be screened at churches, Rotary Clubs and Chambers of Commerce nationwide. To encourage lawyers to speak up in defense of the judiciary, the ABA has drafted sample speeches, op-ed articles and letters to the editor comparing judges to referees, sworn to uphold the rules, however unpopular.

Contrast this with the recent conference at Georgetown Law, featuring Sandra Day O'Connor:
On September 28, Georgetown University Law Center welcomed retired Justice Sandra Day O'Connor, six sitting Supreme Court justices, and hundreds of other nationally recognized leaders in law, government, business, journalism, academia and the nonprofit sector when it hosted and co-sponsored a unique two-day conference that addressed the independence of the nation's courts.

O'Connor and Justice Stephen Breyer chaired the conference, "Fair and Independent Courts: A Conference on the State of the Judiciary." Georgetown Law and the American Law Institute served as its co-sponsors. Organizers convened the conference to promote discussion about the preservation of federal and state courts' tradition of independence — seen in partisan confirmation battles, calls for impeachment or recall following unpopular decisions, and public opinion polls revealing resentment of "judicial activism" — and to develop specific recommendations to strengthen judicial autonomy and increase public confidence in the judiciary.

You can access O'Connor's speech here, via C-Span. It is identified as "A&C: Fmr. Supreme Court Justice Sandra Day O'Connor at Georgetown Univ. (10/07/2006)."

You can access the entire day-long Georgetown conference here, and download transcripts or webcasts.

Posted by Marcia Oddi on Sunday, October 15, 2006
Posted to Courts in general

Not law but interesting - "For India's Traditional Fishermen, Cellphones Deliver a Sea Change"

The Washington Post has a fascinating story today about the economic impact of the cellphone on small fishermen and others in India, by allowing them to communicate directly with their markets. Some quotes:

Minutes later Rajan's phone rang again -- another agent at a different port.

"When I have a big catch, the phone rings 60 or 70 times before I get to port," he said.

The cellphone is bringing new economic clout, profit and productivity to Rajan and millions of other poor laborers in India, the world's fastest-growing cellphone market.

At the beginning of 2000, India had 1.6 million cellphone subscribers; today there are 125 million -- three times the number of land lines in the country. With 6 million new cellphone subscribers each month, industry analysts predict that in four years nearly half of India's 1.1 billion people will be connected by cellphone.

That explosive growth has meant greater access to markets, more information about prices and new customers for tens of millions of Indian farmers and fishermen.

A convenience taken for granted in wealthy nations, the cellphone is putting cash in the pockets of people for whom a dollar is a good day's wage. And it has made market-savvy entrepreneurs out of sheepherders, rickshaw drivers and even the acrobatic men who shinny up palm trees to harvest coconuts here in Kerala state.

"This has changed the entire dynamics of communications and how they organize their lives," said C.K. Prahalad, an India-born business professor at the University of Michigan who has written extensively about how commerce -- and cellphones -- are used to combat poverty.

"One element of poverty is the lack of information," Prahalad said. "The cellphone gives poor people as much information as the middleman."

For less than a penny a minute -- the world's cheapest cellphone call rates -- farmers in remote areas can check prices for their produce. They call around to local markets to find the best deal. They also track global trends using cellphone-based Internet services that show the price of pumpkins or bananas in London or Chicago.

Indian farmers use camera-phones to snap pictures of crop pests, then send the photos by cellphone to biologists who can identify the bug and suggest ways to combat it. In cities, painters, carpenters and plumbers who once begged for work door-to-door say they now have all the work they can handle because customers can reach them instantly by cellphone. * * *

"The two crucial changes that have happened in my lifetime," said Jayan Kadavunkassery, 37, an Andavan crewman in a pink button-down shirt and a lungi, "are the inboard motor and the mobile phone."

Rajan said that before he got his first cellphone a few years ago, he used to arrive at port with a load of fish and hope for the best. The wholesaler on the dock knew that Rajan's un-iced catch wouldn't last long in the fiery Indian sun. So, Rajan said, he was forced to take whatever price was offered -- without having any idea whether dealers in the next port were offering twice as much.

Now he calls several ports while he's still at sea to find the best prices, playing the dealers against one another to drive up the price.
Rajan said the dealers don't necessarily like the new balance of power, but they are paying better prices to him and thousands of other fishermen who work this lush stretch of coastline. "They are forced to give us more money because there is competition," said Rajan, who estimated that his income has at least tripled to an average of $150 a month since 2000, when cellphones began booming in India. He said he is providing for his family in ways that his fisherman father never could, including a house with electricity and a television.

Posted by Marcia Oddi on Sunday, October 15, 2006
Posted to General News

Ind. Courts - Clark County "judge gladly leaves Teen Court as his legacy "

Dale Moss's column today in the Louisville Courier Journal begins:

Providence is due back a couple of times. Jeffersonville, Silver Creek, Clarksville -- all the high schools are on the schedule for Clark County Teen Court.

Everything seems set, except for one detail: the judge.

The judge who calls Teen Court his legacy will not have his seat beyond the end of this year. Jerry Jacobi lost in the Democratic primary in his bid for a third term in Superior Court No. 1. Voters will choose Jacobi's successor on Nov. 7.

Neither candidate -- Vicki Carmichael faces Steve Langdon -- is obliged to embrace Teen Court, much less to believe it the fair-haired child Jacobi does.

Carmichael and Langdon appreciate the program's obvious strengths. They consider the experience worthy of being continued. But both firmly pledge allegiance to real court. First things first.

"The priority will be on getting inmates through the process," said Langdon, the Republican.

(Teen Court) "takes too much time from the other business of the court," said Carmichael, the Democrat.

Jacobi pledges a smooth transition. He paints the next judge into a corner, however, because weekly Teen Court sessions are scheduled through the current school year.

Posted by Marcia Oddi on Sunday, October 15, 2006
Posted to Indiana Courts

Ind. Courts - Marion County prosecutor race featured today

"Experience matters, but what kind? Marion County prosecutor candidates Carl Brizzi and Melina Kennedy make their case" is the headline to the lead story today in the Indianapolis Star. There is a story about each candidate: Kennedy says success spurring development gives her an edge is here; Brizzi's 57% felony conviction rate on par with national average is here. In addition, the editorial page includes a long Q & A with the candidates.

Posted by Marcia Oddi on Sunday, October 15, 2006
Posted to Indiana Courts

Saturday, October 14, 2006

Ind. Gov't. - Legislative benefits and the power of elections

The Fort Wayne Journal Gazette opines today:

The partisan power squabbles that seem so frustrating in the midst of a legislative session serve a different – and positive – purpose in the midst of a heated election season.

Consider the campaign efforts of Indiana House Speaker Brian Bosma and House Minority Leader Patrick Bauer: Both have only nominal challengers for re-election on Nov. 7, but they’ve been stumping furiously to retain or regain leadership.

The frenzy to control the House has convinced both Republican Bosma and Democrat Bauer that it’s time to end a costly pension perk that matches $4 in taxpayer money for every $1 legislators pay – for a part-time job. In May, Bauer announced he would not seek to reinstate the lifetime health insurance benefit for lawmakers that Bosma eliminated by a special order in the last session.

In addition, Bauer said this week that he would seek to eliminate the in-session per diem paid to lawmakers who live within 50 miles of Indianapolis. He said the savings Statehouse-area legislators make on food and lodging allows them to claim more as salary, bolstering their pension match.

Lawmakers are eligible to collect the $137 per diem seven days a week while the General Assembly is in session.

The interest Bosma and Bauer suddenly have in restricting the generous legislative perks is an example of the beneficial role the electoral process plays in protecting citizens from abuses and excesses of government. It worked directly in May, when Senate President Pro Tem Robert Garton lost his re-election bid to a GOP challenger who targeted the lifetime insurance perk that Garton helped create.

The process continues to work even without serious election challenges in exerting pressure on leadership for positive change. It’s the undeniable value of checks and balances at work.

And remember the "pundits" from Indiana Week in Review, last quoted in this October 8th ILB entry. Even they were saying in this week's show last evening (10/13/06) that this upcoming year's General Assembly would change the match of $4.00 from the state (i.e. the taxpayers) for every $1.00 members of the General Assembly contribute to their own personal retirement pension plans. (Of course, those who instituted this plan and the lifetime healthcare benefits plan will continue to reap the benefits).

Posted by Marcia Oddi on Saturday, October 14, 2006
Posted to Indiana Government | Indiana Law | Legislative Benefits

Law - More on: FTC Charges Real Estate Groups with Anticompetitive Conduct in Limiting Consumers' Choice in Real Estate Services

Updating Thursday's ILB entry, the Indianapolis Business Journal reported yesterday:

Metropolitan Indianapolis Board of Realtors is still talking with the U.S. Department of Justice about its multiple listing service, the organization says. The update comes after the Federal Trade Commission sued two Detroit listing services Thursday for anti-competitive practices. The FTC also reached consent agreements with services covering parts of Colorado, New Hampshire, New Jersey, Virginia and Wisconsin. The commission claims their practices limit consumer access to information on houses sold under nontraditional realty agreements. Early last year, MIBOR changed its rules to remove homes under nontraditional contracts from listings the public can view at home-search Web sites such as www.mibor.com.
Also of interest is this ILB entry from May 24, 2006, quoting a report from the Cincinnati Business Courier that: "A bid by a group of local real estate agents to open up Cincinnati's multiple listings service to the public was quashed Wednesday."

Posted by Marcia Oddi on Saturday, October 14, 2006
Posted to General Law Related | Indiana Law

Ind. Courts - "Request for Stay in Burns' Ballot Case Denied by Appellate Court "

Jeff Smith of Mix 102 reported yesterday:

LOGANSPORT - The state election division has lost another legal battle in its effort to have Leo Burns' name removed from the November election ballot. The Indiana Court of Appeals today has denied a motion for a stay that would have taken Burns' name off the ballot for Circuit Court Judge. That same motion was denied in Cass Circuit Court last week. An appeal in the case is still pending, but an exact date for a hearing in the appeal has not been set.
That story is prettly clear and to the point about what happened. The Pharos-Tribune report today, via a story by Dave Kitchell, headlined "Burns wins an appellate court election decision," is somewhat less clear:
Perhaps the two happiest people in Cass County Friday night were Matt Meagher and Leo Burns.

Burns, who learned just before noon the Indiana Court of Appeals had ruled in his favor in the case challenging his candidacy for Circuit Court judge, was home eating barbecued ribs from the Jordan Masonic Lodge.

Meagher, the rookie county chairman who took responsibility for a mix-up that led to Burns’ name not being certified by the ballot, was hoping the Burns candidacy would finally stick and Democrats would have another major race to draw voters to the polls Nov. 7.

“I’m ecstatic about it. I really am,” said Meagher. I’d never expected any other outcome. It’s still nice to see the Appeals Court make the decision it did. It sounds like all good news for Leo. It’s smooth sailing, but now the task is to get elected. I’m happy for Leo. It says that he can put this behind him and focus more on the campaign. It’s another sort of lifting of the worry and the stress.”

When asked if the ruling was a relief, Burns had a one-word answer. “Yes.”

Burns credited his local legal counsel along with his Appellate Court counsel, Karl Mulvaney.

“I can’t say I was surprised. I had the opportunity to read the motion by the Election Division and the motion to opposition that was filed on my behalf."

See a list of earlier ILB entries on Burns' efforts to stay on the Cass County ballot for Circuit Court judge here.

Here are some docket entries from Case Number: 09 A 02 - 0610 - CV - 00847 KING, J. BRADLEY, ET AL. -V- BURNS, LEO T., ET AL.

10/06/06 HAVING REVIEWED THE MATTER, THE COURT FINDS AND ORDERS AS
FOLLOWS:
1. APPELLANTS' VERIFIED MOTION TO EXPEDITE CONSIDERATION OF
APPEAL IS GRANTED.
2. THE NOTICE OF COMPLETION OF CLERK'S RECORD SHALL BE FILED
ON OR BEFORE OCTOBER 10, 2006.
3. THE NOTICE OF COMPLETION OF TRANSCRIPT SHALL BE FILED ON
OR BEFORE OCTOBER 10, 2006.
4. IF THE TRIAL COURT CLERK AND/OR THE TRIAL COURT REPORTER
CANNOT MEET THESE DEADLINES, THEY SHALL INFORM THE COURT IN
WRITING AND REQUEST AN EXTENSION OF TIME.
5. THE APPELLANT'S BRIEF AND APPENDIX SHALL BE FILED ON OR
BEFORE OCTOBER 17, 2006.
6. THE APPELLEE'S BRIEF SHALL BE FILED ON OR BEFORE OCTOBER
24, 2006.
7. ANY REPLY BRIEF SHALL BE FILED ON OR BEFORE OCTOBER 27,
2006.
8. THE PARTIES SHALL NOT RECEIVE EXTENSIONS OF TIME ABSENT
EXTRAORDINARY CIRCUMSTANCES.
JAMES S. KIRSCH, CHIEF JUDGE
SULLIVAN, NAJAM, J.J., GARRARD, SR.J., CONCUR. MS
* * *

10/13/06 HAVING REVIEWED THE MATTER, THE COURT FINDS AND ORDERS AS
FOLLOWS:
1. THE ELECTION DIVISION'S MOTION FOR STAY IS DENIED.
2. THE OCTOBER 6, 2006 ORDER OF THIS COURT EXPEDITING THE
BRIEFING SCHEDULE STANDS.
JAMES S. KIRSCH, CHIEF JUDGE
SULLIVAN, NAJAM, J.J., HOFFMAN, SR.J., CONCUR. MS

Posted by Marcia Oddi on Saturday, October 14, 2006
Posted to Ind. App.Ct. Decisions

Friday, October 13, 2006

Ind. Decisions - Transfer list for week ending October 13, 2006

"There is not a Transfer List this week (ending 10/13/06) since the Supreme Court did not have conference. Conferences will resume next week."

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 table of cases for which the Supreme Court has granted transfer and which are pending disposition is available here (updated every Sunday).

Posted by Marcia Oddi on Friday, October 13, 2006
Posted to Indiana Transfer Lists

Ind. Decisions - List of Court of Appeals NFP opinions issued for the week ending October 13, 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 October 13, 2006.

Posted by Marcia Oddi on Friday, October 13, 2006
Posted to NFP Lists

Ind. Decisions - More on: "Ruling paves way for Danville asphalt plant"

Updating yesterday's entry, Josh Duke of the Indianapolis Star reports today:

Hendricks County leaders will respond Tuesday to a judge's ruling that reversed the county's denial of an asphalt plant near Danville.

Rieth-Riley Construction scored a major victory last month when Matthew Kincaid, a special judge from Boone County, threw out the county Plan Commission's May 2005 decision. The planners denied Rieth-Riley's construction plans for a $3 million hot-mix asphalt plant off County Road 200 East near U.S. 36, just south of the IMI/Irving Materials concrete facility.

County Commissioner David Whicker said county officials met this week to discuss options. Commissioners plan to announce their next move at a 9:30 a.m. Tuesday meeting. Those options include an appeal. * * *

In rejecting the proposed hot-mix plant, the planners relied on a little-used provision of the county's zoning ordinance that requires it to consider "whether the proposed development advances the general welfare of the community and neighborhood."

Kincaid ruled that the county zoning ordinance must stay within state guidelines, which don't allow a ruling based on the general welfare of the community. Kincaid called the county's decision invalid and illegal and ruled that the plan commission must approve Rieth-Riley's development plans.

The plan commission's 2005 denial came despite the Indiana Department of Environmental Management's conclusion that the plant would not pose significant air pollution or health hazards. Rieth-Riley's attorneys argued that the proposal fits within the area's heavy industrial zoning. The property is surrounded by a landfill, railroad and concrete mixing facility.
[emphasis added]

Posted by Marcia Oddi on Friday, October 13, 2006
Posted to Ind. Trial Ct. Decisions

Ind. Decisions - Court of Appeals issues 1 today (and 5 NFP)

For publication opinions today (1):

In Steven L. Baysinger v. State of Indiana, a 14-page opinion (with a concurring opinion beginning on p. 11), Judge Riley writes:

Appellant-Defendant, Steven L. Baysinger (Baysinger), appeals his sixty-five year sentence for murder, Ind. Code § 35-42-1-1(1). We affirm.

Baysinger raises two issues on appeal, which we restate as follows: (1) Whether Blakely v. Washington, 542 U.S. 296 (2004), reh’g denied, applies retroactively to Baysinger’s case, thereby calling into question the trial court’s findings of certain aggravating circumstances; and (2) Whether Baysinger was properly sentenced. * * *

Baysinger first argues that the trial court violated his Sixth Amendment right to have aggravating factors determined by a jury in violation of Blakely v. Washington. He insists that the language of Indiana Post-Conviction Rule 2(1) mandates retroactive application of Blakely under these facts. The Rule provides, in pertinent part, that where a court grants a defendant permission to file a belated notice of appeal that “notice of appeal shall be treated for all purposes as if filed within the prescribed period.” Ind. Post-Conviction Rule 2(1). We agree. * * *

Because of our Supreme Court's ruling in Blakely, many defendants will pursue a belated appeal and challenge their enhanced sentences “on the basis of a rule that was not the law when they were convicted [and] could not have been anticipated when they were sentenced.” Id. Accordingly, we reaffirm that “[u]nless and until the U.S. Supreme Court revises or clarifies its rules on retroactivity, however, we are bound to consider the merits of belated Blakely appeals where appropriate.” * * *

Here, the trial court properly used Baysinger’s prior criminal conviction to enhance his sentence. * * * We agree with the State and therefore find that it was not an abuse of discretion for the trial court to find Baysinger’s prior criminal history to be an aggravator. Therefore, a Blakely analysis, as to any other aggravators, is not necessary as we can say with confidence that the trial court would have imposed the same sentence had it considered only Baysinger’s prior criminal history as an aggravator in this case. See Witmer v. State, 800 N.E.2d 571, 572-73 (Ind. 2003) (“Where a trial court has used an erroneous aggravator, as occurred here, the court on appeal can nevertheless affirm the sentence if it can say with confidence that the same sentence is appropriate.”) (citing Day v. State, 560 N.E.2d 641, 643 (Ind. 1990)). We therefore decline to remand Baysinger’s case for a reevaluation of the sentencing considerations. * * *

Affirmed. DARDEN, J., concurs.
VAIDIK, J., concurs in result with separate opinion.

While I concur in the result reached by the majority, I cannot agree that Blakely v. Washington should apply retroactively to Baysinger’s case under Post-Conviction Rule 2(1). In his brief, Baysinger seizes on that portion of Rule 2(1) providing that “notice of appeal shall be treated for all purposes as if filed within the prescribed period.” I believe that this language applies only to the procedural treatment of the notice of appeal and should not be manipulated as a vehicle to reach the substantive issues addressed in the appeal itself. * * *

I would hold, then, that Blakely does not apply retroactively to Baysinger’s appeal. Reviewing the aggravators before the trial court, then, without subjecting any of them to a Blakely analysis, I would find that three of them—the nature and circumstances of the crime, past criminal history, and lack of remorse—are appropriate aggravators. Given the combination of these three aggravators, I can say with confidence that the trial court would have imposed the same sentence, therefore reversal is not necessary. I further agree with the majority’s Rule 7(B) analysis, and I therefore concur in result.

NFP civil opinions today (2):

Aaron Israel and Gary Robertson v. J. David Donahue, et al. (NFP) - "Concluding that the trial court has subject matter jurisdiction over Israel’s [an inmate at the Westville Control Unit (WCU), a maximum security facility] claims, we reverse and remand for further proceedings consistent with this opinion."

Sarah Ponsford v. Michael T. Chastain (NFP) - child support issues

NFP criminal opinions today (3) (link to cases):

Lorenzo Stewart v. State of Indiana (NFP)

Bryant Clark v. State of Indiana (NFP)

Joe L. Jackson, Jr. v. State of Indiana (NFP)

Posted by Marcia Oddi on Friday, October 13, 2006
Posted to Ind. App.Ct. Decisions

Ind. Decisions - 7th Circuit issues one Indiana decision today

In U.S. v. Avila (ND Ind., Theresa L. Springmann, Judge), a 5-page opinion, Circuit Judge Posner writes:

The defendant was indicted along with a number of others for conspiracy to distribute cocaine and marijuana and for possession of marijuana with intent to distribute it. The first charge carried a statutory maximum prison sentence of 20 years and the second of 5 years. Just before the trial began, the defendant pleaded guilty to the second charge pursuant to an informal agreement with the government that it would drop the first charge. The judge imposed the statutory maximum of 5 years and the defendant appeals on the ground that the judge misapplied the sentencing guidelines. * * *

The guidelines range really was just zero to six months, and so the sentence must be vacated and the case remanded for resentencing—which is not to say that the district judge cannot give him a longer sentence than six months. The guidelines are merely advisory, and a sentence above or below the applicable guidelines range will be affirmed (provided it is within the statutory limits) if reasonable. The judge could well conclude that Avila’s other criminal activities (besides possession of marijuana with intent to sell it), though they were not relevant conduct and hence did not affect the guidelines range, warranted a heavier punishment. But the sentencing judge is required to consider the guidelines before picking a sentence, United States v. Booker, 543 U.S. 220, 264 (2005); United States v. Gonzalez, 2006 WL 2588951, at *1 (7th Cir. Sept. 11, 2006), and this entails a correct understanding of their application to the defendant’s conduct. REVERSED AND REMANDED.

Posted by Marcia Oddi on Friday, October 13, 2006
Posted to Ind. (7th Cir.) Decisions

Thursday, October 12, 2006

Law - FTC Charges Real Estate Groups with Anticompetitive Conduct in Limiting Consumers' Choice in Real Estate Services

The Federal Trade Commission today issued a release titled "FTC Charges Real Estate Groups with Anticompetitive Conduct in Limiting Consumers' Choice in Real Estate Services." Some quotes:

The Federal Trade Commission today charged two real estate groups operating multiple listing services in the Detroit, Michigan, area with illegally restraining competition by limiting consumers’ ability to obtain low-cost real estate brokerage services. The Commission also announced consent agreements with five other groups operating multiple listing services in parts of Colorado, New Hampshire, New Jersey, Virginia, and Wisconsin, that have discontinued the challenged conduct.

According to the FTC, all seven groups adopted rules that withheld valuable benefits of the Multiple Listing Services (MLSs) they control from consumers who chose to enter into non-traditional listing contracts with real estate brokers. Six of the seven blocked non-traditional, less-than-full-service listings from being transmitted by the MLS to popular Internet Web sites. The seventh went further, adopting policies that include blocking such non-traditional brokerage contracts from the MLS entirely. Such policies limit home sellers’ ability to choose a listing type that best serves their specific needs. While five of the groups have entered into consent orders barring such conduct in the future, the two in Michigan have not, and the FTC has issued administrative complaints against them.

Posted by Marcia Oddi on Thursday, October 12, 2006
Posted to General Law Related

Ind. Decisions - "Ruling paves way for Danville asphalt plant"

Josh Duke has a brief report in the Indianapolis Star this afternoon of a ruling earlier this week by Judge Matthew Kincaid. Some quotes from the Star:

Matthew Kincaid, a special judge from Boone County, has thrown out a May 2005 decision by the Hendricks County Plan Commission. County planners denied Rieth-Riley’s plan to construct a $3 million hot mix asphalt plant off Hendricks County Road 200 East near U.S. 36, just south of the IMI/Irving Materials concrete facility.
The ILB would like to post a copy of Judge Kincaid's opinion. If you can help, please contact me.

Posted by Marcia Oddi on Thursday, October 12, 2006
Posted to Ind. Trial Ct. Decisions

Courts - "Questionnaires Test Judge Candidates' Views"

NPR had an excellent story yesterday titled "Questionnaires Test Judge Candidates' Views." It follows up on this ILB entry from Sept. 13th headed "Judicial Surveys Vex the Bench". (For background, see the list of links in that entry.)

Like the September National Law Journal story, yesterday's NPR story features quotes from Indiana attorneys James Bopp and George Patton, who are on opposite sides of an Indiana case, Indiana Right to Life et al v. Randall T. Shepard et al, which is pending in the Northern District of Indiana, Judge Sharp presiding. This is a suit to lift the rules that bar Indiana judicial candidates from commenting on issues.

The NPR story includes links to questionnaires sent out by groups in Kansas, Pennsylvania, and Indiana (here is the form sent out by Indiana Right to Life).

Posted by Marcia Oddi on Thursday, October 12, 2006
Posted to Courts in general

Ind. Decisions - Court of Appeals issues 0 today (and 3 NFP)

For publication opinions today (0):


NFP civil opinions today (1):

Involuntary Termination of Parent-Child Relationship of R.E., Jr. (NFP)

NFP criminal opinions today (2) (link to cases):

Becki E. Behn-Link v. State of Indiana (NFP)

Sheri G. Vance v. State of Indiana (NFP)

Posted by Marcia Oddi on Thursday, October 12, 2006
Posted to Ind. App.Ct. Decisions

Courts - Running for judge in Kentucky

"Candidates for judge can reveal party: U.S. [federal district] court strikes down state rule" is the headline to this story today by Andrew Wolfson in the Louisville Courier Journal. Some quotes:

A federal judge has struck down Kentucky's rule banning judicial candidates from announcing their political party, saying it violates the First Amendment "and does nothing toward assuring the actual open-mindedness of the candidate."

The ruling was sought by a Republican Party activist from Northern Kentucky who is running for the state Supreme Court.

But while the ruling allows candidates of any party to announce their affiliation, the chairman of Kentucky's Judicial Conduct Commission says he expects few candidates for judge -- especially Republicans -- to take advantage of it.

"With the stuff going on in Washington and from what I read from the pundits, this may not be the best time to say you are a Republican," said Steve Wolnitzek, a Covington lawyer who is chairman of the judicial discipline panel.

Marcus Carey, who sought the ruling, said yesterday that he hasn't decided how it might affect his campaign against Court of Appeals Judge Wilfrid Schroder.

But Carey, a former Republican Party chairman in the 4th Congressional District who has touted his "conservative values" in the race, said "the most important thing is that the Constitution was upheld. … This is a great day for freedom of speech."

Schroder, a registered Democrat, said the ruling will have no effect on his campaign.

"I told voters I wouldn't have a political agenda -- that it is wrong to have a political agenda running for a seat on the Supreme Court, and it would be wrong to go back on my word at this point," he said.

The case is Carey v. Wolnitizek (ED Ky) - access it here. More from the story:
In her 37-page order Tuesday, U.S. District Judge Karen Caldwell also tossed out a judicial rule that has barred candidates from raising money themselves and required them to entrust that job to campaign committees.

The defendants in the suit -- the judicial commission and the Kentucky Bar Association -- contended that the rule kept judges from directly intimidating lawyers into making donations.

But Caldwell noted that it didn't keep judicial candidates from finding out who gave to them and how much. "If … the public believes that elected judges favor their contributors, then the fact that contributions are solicited by a committee instead of the judge himself does nothing to dispel that perception."

Wolnitzek said he didn't know if the defendants would appeal the ruling, in which Caldwell issued a preliminary injunction blocking enforcement of the two canons. He said the two agencies first would consult with the state Supreme Court, which makes the rules.

One of Carey's lawyers, James Bopp of Terre Haute, Ind., who last year successfully attacked Kentucky's judicial speech rules on behalf of the Family Foundation of Kentucky, said "judicial candidates have a right to announce their views by stating their political affiliation and to solicit funds for their campaigns for office."

It is not clear how the ruling may affect this year's judicial elections, which are less than four weeks away. Judicial elections will still be nonpartisan, and Caldwell noted that the ruling will require no changes on the ballot. * * *

Caldwell's ruling is one of many nationwide that have struck down restrictions on judicial speech and campaigning as violations of the First Amendment.

As a result of the federal court ruling for the Family Foundation last year, the Kentucky Supreme Court had to drop a rule that barred judicial candidates from making statements that "commit or appear to commit" them to positions on cases they likely would hear.

It was replaced by a new canon that says judicial candidates must not intentionally or recklessly make a statement that could be perceived by a reasonable person as committing them to rule a certain way on an issue they could hear.

Here is a long list of earlier ILB "Running for =Judge" entries.

Posted by Marcia Oddi on Thursday, October 12, 2006
Posted to Courts in general

Environment - More on NW Indiana environmental issues

Updating yesterday's ILB entry on the Pine transfer station and Feddeler landfill:

Pines transfer station. The Chesterton Tribune has a story that begins:

As expected, the Porter County Commissioners have appealed a decision by a state agency that issued a permit for a new waste transfer station on the Porter-LaPorte County Line Road.

In a suit filed in LaPorte Superior Court, the Porter County Commissioners seek a court ruling that would remand the case back to the Indiana Office of Environmental Adjudication or compel that office to revoke its September decision in support of the Great Lakes Transfer Station and the Indiana Department of Environmental Management.

At the heart of the commissioners’ appeal is that IDEM improperly approved the permit for the transfer station in part because the permit was issued even though IDEM knew that Porter County would not grant a road access permit to allow the transfer station to operate.

Feddeler landfill. "Toxic dump may get superfund aid" is the headline to a story today in the Gary Post-Tribune. A quote:
The move comes as county officials renewed complaints of inaction by state environmental regulators, who learned that some 500 barrels of toxic chemicals had been illegally dumped at the site more than 30 years ago.

"We tried to deal with the Indiana Department of Environmental Management," said Lake County Commissioner Gerry Scheub, a member of the Solid Waste Management board.

"We've gotten more done with the EPA in three weeks than we did with IDEM in three years," Scheub said.

Indeed, see this ILB entry from April 30, 2004. The Munster (NW Indiana) Times reports "Federal EPA to investigate landfill." A quote:
The U.S. Environmental Protection Agency agreed Wednesday to investigate toxic waste contamination at a shuttered landfill near Lowell.

Local officials. who expressed continued frustration with state regulators, praised the move, which they view as the first step toward getting funding for a cleanup effort that could cost up to $35 million.

"They're going to take an active part in it now, which is just fantastic," Lake County Commissioner Gerald Scheub, D-Schererville, said Wednesday after meeting with EPA officials. Federal money "is the only source of revenue that we have because (the Indiana Department of Environmental Management) hasn't cooperated with us at all. It's been their responsibility, and they've walked away from their responsibility." * * *

An inspection report from 1975 shows the state knew then that barrels of "hazardous waste" were being dumped at the landfill. That dumping occurred before state or federal regulations were in place to prevent it, says Bruce Palin. the head of IDEM's Office of Land Quality.

"Back during that time, it was not unusual for just about anything to be placed in dump sites, from not only household waste but industrial waste and what have you," Palin said Wednesday.

The state has no evidence that the dumping continued after 1975, Palin said, and recent tests by IDEM have not revealed a health threat.

"We have been up there the last two years and are going up there again this year to take water samples in the monitoring wells around the landfill," Palin said. "In the last two years, monitoring has not indicated any type of release occurring from the landfill site, so I don't think it's quite fair to say we haven't done anything."

Posted by Marcia Oddi on Thursday, October 12, 2006
Posted to Environment

Ind. Courts - "Insurance companies: State erred in awarding contract"

A story today in the Indianapolis Star reports:

Two companies that failed to win contracts to serve the Hoosier Healthwise insurance program have filed complaints in federal court.

The suits contend the Family and Social Services Administration and Department of Administration did not properly evaluate their proposals and violated federal guidelines for awarding contracts.

In a related development, a third unsuccessful bidder for a share of the $4.4 billion, four-year contract has turned to the Indiana Supreme Court after a similar complaint was dismissed by a Marion County judge.

Attorneys for Caresource Indiana and Molina Healthcare of Indiana filed the complaints Tuesday in U.S. District Court, Southern District of Indiana. They are seeking damages and an injunction that would prohibit the state from executing the new contracts -- set to take effect Jan. 1 -- with the three winning firms.

In the other case, Harmony Health Plan of Indiana is asking that its appeal of the Marion County decision bypass the Court of Appeals so the Supreme Court can hear the complaint before the new contracts go into effect.

Attorneys for the state filed a response Thursday opposing Harmony's request, saying the lower court decision was correct and there is no emergency that requires a speedy determination by the Supreme Court.

Hoosier Healthwise, a combination of Medicaid and the Children's Health Insurance program, serves about 535,000 low-income Indiana residents.

Readers may recall the Sept. 5th Court of Appeals opinion in City of Fort Wayne v. Pierce Manufacturing (see ILB entry here), where the Court held that:
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.
For more on the case, see this ILB entry from Sept. 6th.

A check of the docket in Pierce (90 A 02 - 0512 - CV - 01155) shows that a petition for transfer is pending, filed Oct. 5th. Furthermore, amicus curae briefs have been filed by Molina Healthcare, one of the parties that filed suit in federal court yesterday in the FSSA suit.

Harmony Health Plan v. Ind. Dept. of Administration (49 A 02 - 0610 - CV - 00846) is the case identified in the Star story as filing for expedited appeal (or, alternatively, a stay of the State's current contracting, pending review) directly to the Supreme Court.

The ILB has obtained copies of the complaints of Molina Healthcare and Caresource Indiana filed here in federal court.

Posted by Marcia Oddi on Thursday, October 12, 2006
Posted to Ind Fed D.Ct. Decisions | Ind. App.Ct. Decisions | Ind. Sup.Ct. Decisions | Indiana Courts

Wednesday, October 11, 2006

Ind. Decisions - 7th Circuit rules in Gary "sexually oriented businesses" case

In Andy's Restaurant et al v. City of Gary, a 14-page opinion, Circuit Judge Kanne writes:

This appeal concerns the constitutionality of an ordinance enacted by the City of Gary (“City”) affecting “sexually oriented businesses.” In a thorough and well reasoned opinion, Magistrate Judge Rodovich granted summary judgment for the City on the declaratory judgment action filed by some of the businesses affected by the ordinance. We affirm. * * *

The plaintiffs’ argument can be organized as follows: the Ordinance discriminates on the basis of content, and, therefore, should be analyzed under strict scrutiny; even when analyzed under lesser, intermediate scrutiny, the City has not met its burden of justifying the Ordinance; and that the Ordinance acts as an impermissible prior restraint on speech.

[In addition to a thorough First Amendment analysis under Part II, A, the Court in B (p. 11) looks at "Fourth Amendment and Indiana Law"]

Plaintiffs argue that the Ordinance allows for searches in violation of the Fourth Amendment and that the Ordinance is preempted by Indiana Law. Both of these arguments are waived because the plaintiff failed to raise them before the district court. * * *

Plaintiffs also attempt to raise a preemption argument relying on Indiana law. Before the plaintiffs filed their brief in the district court, the Indiana Attorney General asked for permission, which was granted, to file an amicus brief with the district court addressing the issue “that state alcoholic beverage statutes preempt local regulation of adult entertainment establishments.” See Ind. Code § 7.1-3-9-6 (prohibiting certain local interference with liquor licenses provided by the state).

The plaintiffs then filed their brief opposing summary judgment without raising this issue. The very next day the Indiana Attorney General informed the district court that no amicus brief would be filed because no state law issues had been raised by the briefing.

Plaintiffs now attempt to argue that the Ordinance is preempted by Indiana law. But their earlier approach in the district court has deprived us of an analysis by the magistrate judge (and the views of the Indiana Attorney General), and, therefore, plaintiffs have waived the issue. See Estremera, 442 F.3d at 587.

III. CONCLUSION
Accordingly, the grant of summary judgment in favor of the City of Gary is AFFIRMED.

Posted by Marcia Oddi on Wednesday, October 11, 2006
Posted to Ind. (7th Cir.) Decisions

Ind. Decisions - Court of Appeals issues 3 today (and 6 NFP)

For publication opinions today (3):

In Jesse L. Payne v. State of Indiana, a 10-page opinion, Judge Riley writes:

Payne argues the trial court improperly denied his Motion to Suppress evidence obtained as a result of his illegal custodial and arrest interrogations. Specifically, Payne contends that (1) he was stopped illegally because Deputy Watts did not have the requisite reasonable suspicion since the collective knowledge of the police department regarding Payne was not conveyed to Deputy Watts before he stopped Payne, and (2) upon handcuffing Payne the seizure rose to the level of an arrest requiring probable cause, which Deputy Watts also did not possess. * * *

Based on the totality of the circumstances, we find Deputy Watts properly detained Payne until another officer with more information could arrive at the scene. Although Payne notes in his brief that Deputy Watts testified Payne was not free to leave, the record indicates Deputy Watts never communicated to Payne he was not free to leave. And, “a police officer’s ‘unarticulated plan has no bearing on the question’ of custody.” Loving, 647 N.E.2d at 1125 (quoting Berkemer v. McCarty, 468 U.S. 420, 442 (1984)). Rather, the test is how a reasonable person in the suspect's shoes would understand the situation. Loving, 647 N.E.2d at 1125. Deputy Watts sought permission from Payne to place him in handcuffs, indicating Payne was not forcibly restrained against his will. As well, Payne was detained in handcuffs for no more than five minutes. Our supreme court has held that “in assessing whether a detention is too long in duration to be justified as an investigative stop, we consider it appropriate to examine whether the police diligently pursued a means of investigation that was likely to confirm or dispel their suspicions quickly.” Mitchell v. State, 745 N.E.2d 775, 782 (Ind. 2001) (quoting Unite States v. Sharpe, 470 U.S. 675, 686-67 (1985)). Thus, based on Deputy Watts’ receiving permission from Payne to be handcuffed and the brevity of Payne’s detention in handcuffs, we find Deputy Watts’ detention of Payne did not rise to the level of an arrest, but was rather an investigatory detention in line with Crabtree and Johnson.

CONCLUSION. Based on the foregoing, we conclude the trial court did not abuse its discretion by denying Payne’s Motion to Suppress. Affirmed.

In St. Charles Tower, Inc. v. Board of Zoning Appeals of Evansville, Vanderburgh Co., a 19-page opinion (with a dissent beginning on p. 16), Judge Riley writes: [COMING SOON]

In Government Payment Service v. Ace Bail Bonds, et al, a 10-page opinion, Chief Judge Kirsch writes:

Government Payment Service, Inc. (“GPS”) appeals the trial court’s decision in favor of Ace Bail Bonds, American Bail Bond Company, Bertholet Bail Bond, and Express Bail Bond (collectively, the “Bail Agents”). Specifically, GPS appeals the trial court’s decision to permanently enjoin GPS from facilitating cash bail in Indiana. GPS also appeals the trial court’s denial of its counterclaim for damages.

On appeal, GPS raises the following dispositive issues: I. Whether the trial court’s findings of fact and conclusions support the permanent injunction entered against GPS. II. Whether the trial court erred in denying GPS’s counterclaim for damages sustained as a result of being wrongfully enjoined or restrained. We reverse in part and affirm in part. * * *

To prove malicious prosecution, GPS had to prove: (1) the Bail Agents instituted or caused to be instituted an original action against GPS; (2) the Bail Agents acted maliciously in so doing; (3) the Bail Agents had no probable cause to institute the original action; and (4) the original action was terminated in GPS’s favor. City of New Haven v. Reichhart, 748 N.E.2d 374, 378 (Ind. 2001); Crosson v. Berry, 829 N.E.2d 184, 194 (Ind. Ct. App. 2005), trans. denied. Here, the Lake Superior Court issued the TRO in favor of the Bail Agents. On the merits, the Marion Superior Court issued a permanent injunction also in favor of the Bail Agents. Because the original action was not terminated in GPS’s favor, GPS failed to prove malicious prosecution. The trial court did not err in denying GPS’s counterclaim. Reversed in part and affirmed in part.

NFP civil opinions today (0):

NFP criminal opinions today (6) (link to cases):

Lionel Sims v. State of Indiana (NFP)

Reginald Akins v. State of Indiana (NFP)

Anthony L. Smith v. State of Indiana (NFP)

Randall Ryan Richardson v. State of Indiana (NFP)

Juan J. Vasquez v. State of Indiana (NFP)

Jeramy Heavrin v. State of Indiana (NFP)

Posted by Marcia Oddi on Wednesday, October 11, 2006
Posted to Ind. App.Ct. Decisions

Environment - Several NW Indiana environmental issues in the news

The first is Feddeler landfill.

Here are some of the stories from the Munster (NW Indiana) Times:

From the Gary Post-Tribune:

Here is a list of a number of earlier ILB entries on the Fedderler landfill.

The second is the proposed Pines transfer station.
Bob Kasarda of the Munster (NW Indiana) Times writes today, in a story headlined "Bid to block waste transfer station renewed: Porter County appeals, claiming commissioners cut out of decision-making process," that:
LAPORTE | The Porter County Commissioners have not given up their opposition to a waste transfer station proposed just over the border in LaPorte County.

The commissioners filed an appeal Tuesday in LaPorte County, claiming they were unfairly cut out of the decision-making process.

An administrative law judge last month threw out Porter County's claim that it never gave Great Lakes Transfer LLC permission to access the proposed site from Porter-LaPorte County Line Road. Porter County has exclusive jurisdiction over the roadway.

The judge granted the company's motion for summary judgment, which means the dispute was settled without both sides having the opportunity to make their case, according to Porter County Attorney Gwenn Rinkenberger.

The Porter County Commissioners want to see either a hearing held on the dispute or the company's permit revoked on the grounds that it was improperly issued by the Indiana Department of Environmental Management. * * *

Beverly Shores, The Pines and the LaPorte County Commissioners are expected to join the appeal, Rinkenberger said.

The site in question is 1,200 feet east of County Line Road, just south of the Amtrak railroad tracks.

Great Lakes has IDEM permission to build a 5-acre waste transfer station. The company's permit application said the site will take in up to 250 tons of garbage a day and ship it to landfills within 24 hours.

"Porter County opposes waste station: Case is in court" is the headline to a Gary Post-Tribune story by Tom Wyatt. Some quotes:
Opponents of a proposed waste transfer station on the Porter-LaPorte county line are taking their case to the local court.

The Porter County Board of Commissioners has appealed an Indiana Department of Environmental Management administrative judge's ruling that approved a permit granted to Great Lakes Transfer LLC. * * *

On Tuesday, the Porter County Board of Commissioners filed a petition for review with LaPorte Superior Court Judge Stephen King claiming IDEM gave the permit to Great Lakes Transfer on false pretenses.

The Porter County Commissioners argue IDEM granted the permit despite knowing Porter County had not allowed road access to the proposed facility and had not granted a driveway permit.

Indiana counties have jurisdiction over county line roads on their eastern and southern edges.

In this case, the county line road belongs to Porter County, and it is up to Porter County to grant road access and driveway permits.

"It would seem that for IDEM to give a permit for something they don't have road access for doesn't make a lot of sense," Porter County Board of Commissioners President Bob Harper said.

Porter County's claim states Great Lakes Transfer submitted a plot plan to IDEM showing road access as well as a driveway permit issued by LaPorte County.

In both cases, Porter County has jurisdiction, and neither road access nor a driveway permit were granted.

"I don't get it," Porter County Board of Commissioners attorney Gwenn Rinkenberger said. "I don't understand how somebody applying for a permit from IDEM can put in false information and have IDEM rely on it."

A separate petition for review will be filed today or Thursday in cooperation with LaPorte and Porter counties, and Pines and Beverly Shores over other issues, such as zoning and ownership of the property, said Clay Patton, attorney for Pines and Beverly Shores.

I'm confused from these stories over whether the administrative ruling of the OEA is/will be appealed.
Here are earlier ILB entries on the Pines transfer stattion.

Posted by Marcia Oddi on Wednesday, October 11, 2006
Posted to Administrative Law | Environment

Law - Still more on: Night law classes may end at the University of Louisville

Updating earlier ILB entries on the proposed closing of the University of Louisville night law school, Michael Stevens of The Kentucky Law Blog yesterday posted a letter he received from the acting dean of the law school. Here is a quote from the letter:

Faculty consideration of moving the part-time program to the day has not come easily. One of the known benefits of teaching in the evening part-time division is teaching classes with students who have such varied experiences and points of view.

Many faculty have developed close friendships in the legal community with graduates of our evening division. Not one faculty member of whom I am aware has treated any of the discussions about the future of the evening division with anything other than serious study and personal concern.

We recognize the important role that the evening division has historically played in the law school, and we value the graduates of that division who have been loyal supporters of the law school.

Sounds like their decision has been made, although not yet officially.

Posted by Marcia Oddi on Wednesday, October 11, 2006
Posted to General Law Related

Ind. Courts - Noble drug court awaits state certification

Kara Lopp of the Fort Wayne Journal Gazette reports today:

ALBION – A drug addiction rehabilitation program, know as a drug court, could be part of the Noble County court system by January.

Noble County officials applied to establish a drug court in the spring and are waiting for certification by the Indiana Judicial Center.

A drug court allows court officials to refer people to the multi-step program where accountability to stop using drugs is key. At the beginning of the program, participants meet with a probation officer several times a week and typically appear before a judge once a week to track their progress.

The number of visits lessens as the participant moves through the program, trying to kick their drug addiction.

The state currently has 22 drug courts – including one in Allen County – and four drug courts for juveniles. Other counties, such as Wabash County, have a drug court in the works.

The creation of a drug court in Noble County is something Noble Superior II Judge Michael Kramer, who would oversee the program, has wanted for a long time.

Posted by Marcia Oddi on Wednesday, October 11, 2006
Posted to Indiana Courts

Courts - Hamilton Ohio Naked Prosecutor has Indiana connection

"City Prosecutor Caught Without Clothes Before" is the title to a WKRC.com story. Some quotes:

There is new information tonight concerning the Hamilton City Prosecutor found walking through a government office building in the nude on two separate nights last week. * * *

Since the announcement of Blauvelt's arrest, there has been a lot of speculation as to what may have triggered his bizarre behavior. One City Councilman even thought the head injuries Blauvelt suffered in a car crash last summer may be to blame. We did some checking today, and as it turns out, police say they found him nude at the crash scene. It was here at the Government Services Building where Hamilton City Prosecutor Scott blauvelt was caught walking naked. Wednesday night it was on the city side of the building, Thursday night on the county side. A Butler County Court Services Deputy spotted Blauvelt while checking these closed circuit security monitors. * * *

This was not the first time, Scott Blauvelt was caught wearing no clothes. Former Union County Indiana Sheriff Steve Leverton confirmed for Local 12 Tuesday, Blauvelt was found wearing no clothes following a car crash along US 27 near Liberty, Indiana in June of last year.

Posted by Marcia Oddi on Wednesday, October 11, 2006
Posted to Courts in general

Tuesday, October 10, 2006

Ind. Courts - Or lack thereof: Town Told To Stop Driver Program

WJOB's Ron Johnson is reporting:

The Munster Town Council yesterday learned it must stop the Munster Driver Education Program or elect a judge.

Assistant Town Attorney Steven Kennedy said court rulings and the State Board of Accounts say Munster would have to establish a Town Court to continue the program.

The program allows people who receive traffic tickets to attend classes with the Munster Police Department for a fee ranging from 181 to 231 dollars.

Kennedy said the money would probably go toward supporting the judge and the court and not be a two-hundred-thousand dollar revenue generator for the town as it should be.

Munster Clerk-Treasurer David Shafer said the town will probably phase out the program by year's end. The Council, however, will evaluate the idea of Munster having it's own elective Judge and Court.

Town Manager Tom DeGuilio said in his memo to the Council he had, "serious reservations". The court, he said, would require additional expenses for a judge and staff.

Posted by Marcia Oddi on Tuesday, October 10, 2006
Posted to Indiana Courts

Ind. Courts - Greene Superior Court move is smooth

The Greene County Daily World reports today, in a story by Andrea McCann:

Greene Superior Court was moved to its new home in the courthouse addition Thursday and Friday.

“The move went very well in so far as I'm aware,” said Superior Court Judge David Holt. “The contractors were responsible for the actual move, and they had assistance from Community Corrections.”

Holt said his office personnel had everything packed and prepared for the movers. By Friday, he said, they were able to begin the unpacking process in their new quarters.

“We still have a lot of things to unpack,” Holt said. “It will be a process finding everything in the boxes.”

He added that they have a new phone system to get used to, and the contractors have a few minor things left to do.

Holt said there will be some differences between the two courts, so signs will instruct visitors where to go and what to do.


“For so long, Superior Court was on the third floor and Circuit Court was on the second. Now it's the reverse. Judge Allen has become the high court,” he quipped.

Cases pending will be posted on signboards just past the security area, he said.

Here are some other ILB entries about Greene Superiod Court.

Posted by Marcia Oddi on Tuesday, October 10, 2006
Posted to Indiana Courts

Law - NY Times series on government and religion continues; an Indiana slant today

Today is the third day of the NY Times series and the focus today is on tax breaks for religious entities: "As religious organizations extend their scope beyond traditional worship, government at all levels is increasingly extending their tax exemptions."

See the earlier ILB entry here. The series so far:

Part 1: As Exemptions Grow, Religion Outweighs Regulation
Part 2: Where Faith Abides, Employees Have Few Rights
Part 3: As Religious Programs Expand, Disputes Rise Over Tax Breaks
Indiana is the setting for the beginning of today's tax breaks story:
The similarities between Holy Cross Village at Notre Dame, on the north side of South Bend, Ind., and Hermitage Estates, south of town, are almost disorienting. The two retirement communities have the same simple gabled ranch houses, with the same touches of brick and stone, clustered around a pond with the same fountain funneling spray into the air and ducks waddling down the grassy bank.

But the retired residents of Hermitage Estates pay an average of about $2,300 per unit in property taxes. The management of Holy Cross Village, the Brothers of Holy Cross, says that development should be exempt from property taxes, and it has taken that argument to court.

As the Brothers of Holy Cross, a Roman Catholic religious order, sees it, providing the elderly with the amenities of the village — a sense of security, social opportunities and various services to make independent living easier — is a charitable activity rooted in its pastoral mission to serve others.

Members of the St. Joseph County Property Tax Assessment Board of Appeals, all but one of them lifelong Catholics, see it differently. To them, a charitable ministry does not consist of providing lovely retirement living to affluent people. The current residents of Holy Cross Village have an average net worth of $1 million. Those with deposits on the units under construction are even better off, averaging $1.6 million.

If Holy Cross Village is not taxed, members of the assessment board point out, a heavier burden will fall on the working families in the county that are struggling to pay the taxes on their small homes in careworn communities like the west side of South Bend.

“I was educated by the Brothers of Holy Cross” at St. Joseph’s High School, “and I have a great deal of respect, love and affection for them,” said Dennis J. Dillman, a longtime board member. “But I think what they’re doing is just not right. And that is based on the values they taught me at their schools.”

The conflict in South Bend echoes disputes from Alaska to Florida that raise the following issue: As religious organizations of all faiths stretch their concept of mission far beyond traditional worship, should their traditional tax exemptions expand as well? Increasingly, government at all levels is answering yes.

The property tax exemption is one of the oldest tax breaks granted to religious organizations, but it is not the only one. Lawmakers and judges have also approved what amounts to special tax treatment for religious organizations and some of their employees, including exemptions on personal-income and payroll taxes, and have made it easier for them to get tax-exempt construction loans for purely religious projects.

Like the exemptions from federal and state regulations that have proliferated for religious groups in recent years, these tax breaks are widely defended both as an acknowledgment of religion’s contributions to society and as a barrier to unjustified government limitations on the liberty that religious organizations enjoy under the First Amendment.

But in some communities like South Bend, tolerance of religious tax breaks is fraying as local governments struggle to provide basic services with limited resources. * * *

Holy Cross Village initially paid the taxes the county demanded, but subsequently got court permission to hold off on future payments while its appeals go forward, according to Kevin Rose, a spokesman for the project’s management.

When the Brothers of Holy Cross appealed the county’s ruling to the Indiana Board of Tax Review last year, it lost. [access opinion here, dated 6/7/05] “A charitable purpose involves something beyond merely successfully marketing one’s services to seniors,” the review board said. “It implies some level of sacrifice on the part of the entity providing those services. It is this sacrifice that separates an ‘obviously charitable act’ from the everyday purposes and activities of man in general.”

The fight has now moved to the courts, where the project’s management hopes to fare better. “We thought we were within the orbit of what was considered to merit that exemption,” Mr. Wychocki said. “Now we just stand and shake our heads.”

A check of the Indiana Courts docket shows that oral arguments will be heard in this case, Brothers of Holy Cross v. St. Joseph County Property Tax Assessment Board of Appeals, before Tax Court Judge Thomas G. Fisher, on Nov. 30, 2006 (Case Number: 49 T 10 - 0507 - TA - 00059).

For some background, see this ILB entry from Nov. 1, 2004.

Posted by Marcia Oddi on Tuesday, October 10, 2006
Posted to General Law Related

Ind. Courts - More on: Fix protective orders, writes Fort Wayne newspaper

Last Wednesday the Fort Wayne Journal Gazette had an editorial (quoted here in the ILB) commenting on the entry of data into the dtatbase systems.

Today Therese M. Brown, clerk of the Allen Circuit and Superior Courts, responds in a letter to the Journal Gazette. A quote:

The editorial accurately stated that “victims also need to know that they mustprovide as much information as possible when they file a protective order.” It is essential that these individuals understand that this vital information is needed before a complete order issuing protection can be entered into the numerous databases.

It should also have been mentioned that many victims do not know their assailant well enough to know specific, vital information (Social Security numbers and dates of birth) when filing a petition for protection.

The instruction from the Indiana State Court Administration to a victim reiterates that this information is needed or the “court or clerk will not be able to file this case.” The only recourse then would be to not accept the filing, place the victim in danger, yet meet 100 percent of the standards being discussed in the editorial.

Fortunately, Allen County has long taken the position to err on the side of the victim and accepts the filing with whatever information is made available. I believe that it is not only appropriate but the moral and ethical thing to do for those in need. This office has worked diligently in the past and will continue to do so in the future with the Allen County Sheriff’s Department and the Allen Superior Court to assist those needing protection. * * *

In my discussion with the editorial writer, I agreed that there must be more flexibility with both statewide and federal systems. It must be stated that all available information is placed into the Spillman network, available to local police officers.

I also agree that state created and required protective order forms should be made more user-friendly. A point that was not mentioned in the editorial was that, in an attempt to place as much information in the hands of the officer on the street, Chief Deputy Ken Fries and I have discussed that additional information (distinguishing marks, tattoos) should be placed into the local Spillman network, and to my understanding that is taking place. Furthermore, he is investigating whether information at the time of booking can complete the necessary requirements to update National Crime Information Center and Indiana Data and Communications System .

It is important to express that only 1 percent of protective orders issued fail to have the necessary information for placement into either the state or federal systems.

Posted by Marcia Oddi on Tuesday, October 10, 2006
Posted to Indiana Courts

Ind. Decisions - Court of Appeals issues 2 today (and 3 NFP)

For publication opinions today (2):

In Victor Salazar v.State of Indiana, a 12-page opinion, Judge Sullivan writes:

Appellant, Victor Salazar, challenges the trial court’s denial of his petition for permission to file a belated appeal.

We reverse. * * *

Salazar argues that the failure to timely file a notice of appeal from his sentence was not his fault and that he has been diligent in requesting permission to file a belated notice of appeal. Salazar specifically claims that the trial court “misinformed” him at his guilty plea hearing that, by pleading guilty, he was giving up his right to appeal. The State argues that Salazar was solely at fault for failing to timely appeal his sentence and that Salazar does not properly support his claim that the trial court misinformed him. * * *

We therefore conclude that Salazar was not at fault for failing to timely file a notice of appeal, and that he was diligent in seeking relief under Post-Conviction Rule 2. The trial court erred in concluding otherwise. See Cruite, 853 N.E.2d at 490-91. The judgment of the trial court is reversed and the trial court is ordered to grant the petition.

In Teresa K. Cox v. State of Indiana, a 19-page opinion, Judge Sullivan writes:
Following a jury trial, Appellant, Teresa Kay Cox, was convicted of one count of Murder, a felony. Upon appeal, Cox presents three issues for our review, which we restate as: I. Whether the trial court erred in admitting into evidence testimony regarding statements made by Cox during a custodial interrogation by the police; II. Whether the trial court erred in admitting into evidence testimony that Cox had lost physical custody of two of her children; and III. Whether the prosecutor’s comments during the State’s closing argument amounted to prosecutorial misconduct. We affirm. * * *

In no way, however, do we condone the prosecutor’s erroneous and misleading assurances to defense counsel and the court that the transcript of the interrogation was in evidence. Nevertheless, Cox has not established reversible error with regard to the prosecutor’s statements during the State’s closing argument. The judgment of the trial court is affirmed.

NFP civil opinions today (1):

Ray L. Blair v. Gary C. Padgett, Jr. (NFP)

NFP criminal opinions today (2) (link to cases):

Bradley J. Harris v. State of Indiana (NFP)

Davis Batts v. State of Indiana (NFP)

Posted by Marcia Oddi on Tuesday, October 10, 2006
Posted to Ind. App.Ct. Decisions

Monday, October 09, 2006

Law - More on: "Law blogs raising prickly ethical issues"

Yesterday the ILB posted excerpts from a National Law Journal article headlined "Law blogs raising prickly ethical issues."

Today the WSJ Blog links to the same article, in an entry titled "Should Lawyers’ Blogs Be Subject to Advertising Rules?" But WSJ blogger Peter Lattman goes one step further. He writes:

As a sampling, check out these blogs: China Law Blog, Silicon Valley Media Law blog, and the E. Coli blog. Do these constitute lawyer advertising that should be subject to regulation?
Interestingly, he gets a quick response back from the owner of the China Law Blog, who makes some good points:
I reviewed the other two blogs and I ended up spending quite a bit of time on them simply because I found them informative and interesting. I only hope you put my blog in their company because you see our blogs as similar, rather than contrasting.

I do not consider either of these blogs to constitute advertising. Sure, they may bring in business for the two law firms, but they do so by convincing their readers that these lawyers know their subject area — which I already knew about both firms.

If these two blogs are going to be considered advertising, we should start considering all lawyer written articles to be advertising as well. What about speaking at seminars?

Some of law blogs probably do constitute advertising, but I find it hard to believe those blogs have much of a readership. How many people will return to a lawyer advertising site?

Which leads to “my” revolutionary idea which seems to work well for almost everyone except lawyers: TRUST THE PEOPLE; LET THE MARKET DECIDE.

I would add to that - look at two of the most important new informational tools lawyers now have, in my opinion, for keeping totally current with law at the national level, How Appealing and SCOTUSblog.

The first is the output of Howard Bashman, a solo appellate practitioner; the second was started by Tom Goldstein, who does mostly U.S. Supreme Court appeals (who this year moved from his boutique firm to head the new Supreme Court practice group of a main-stream law firm).

Both have gained national reputations, at least among their peers in the legal community, as a result of their "must-read" blogs. I think their stories serve to reinforce the points made above by the China Law Blog.

Posted by Marcia Oddi on Monday, October 09, 2006
Posted to General Law Related

Law - "In New York Immigration Court, Asylum Roulette"

On August 10, 2006 the ILB had a long entry headed "DOJ moves to improve immigration judges, after months of criticism," pulling together several years worth of criticism of immigration judges' decisions by judges on the 7th Circuit, along with other materials.

Yesterday the NY Times ran a front-page story by Nina Bernstein titled "In New York Immigration Court, Asylum Roulette." Here is how it starts:

Tears streaked Meizi Liu’s face in 2003 as she told an immigration judge in New York of being forcibly sterilized in China. The judge, Jeffrey S. Chase, had won awards as a human rights advocate before his appointment to the bench in 1995. But now he had 1,000 pending cases, and he had heard it all before.

He insisted that she was lying, ridiculed her story and, when she would not recant, denied her petition for asylum.

The tables turned after appeals by Ms. Liu and others reached federal court this year. In scathing decisions, the court rebuked Judge Chase for “pervasive bias and hostility,” “combative and insulting language” and remarks “implying that any asylum claim based on China’s coercive family planning policies would be presumed incredible.”

It is always judgment day in the windowless courtrooms where immigrants plead to stay in the United States. But these days, as never before, the nation’s 218 immigration judges are also being judged, even as they struggle to complete 350,000 cases a year amid an immigration debate that promises to send them many more.

Appeals courts criticize some judges by name, citing abusive behavior and bad decisions. Studies highlight stark disparities in judgment, like 90 percent of asylum cases granted by one judge and 9 percent down the hall. Faced with mounting criticism, Attorney General Alberto R. Gonzales vowed to introduce yearly performance evaluations of the judges, who are Justice Department employees. The Harvard Law Review urged a campaign to turn the five worst judges into “media villains” to motivate reform.

Yet a more complicated picture emerges in the federal building in Lower Manhattan. There, Judge Chase, who colleagues say is chastened since being rebuked, is one of 27 immigration judges searching for ways to handle 20,000 cases a year, driven as much by scarce resources and escalating demands as by quirks of personality and power.

In asylum cases, the wrong decision can be a death sentence. In others, banishment hangs in the balance, with the prospect of families split up or swept into harm’s way. But before they can consider the merits of a case, judges must cope with an intricate web of laws, changing conditions in distant lands, and a mix of false and truthful testimony in 227 tongues vulnerable to an interpreter’s mistake as small as pronouncing “rebels” like “robbers.”

Posted by Marcia Oddi on Monday, October 09, 2006
Posted to Courts in general

Law - "As Exemptions Grow, Religion Outweighs Regulation"

The Sunday NY Times had a story by Diana B. Henriques about religion trumping regulation. A side-bar notes that "Articles in this four-part series examine how American religious organizations benefit from an increasingly accommodating government." Some quotes:

In recent years, many politicians and commentators have cited what they consider a nationwide “war on religion” that exposes religious organizations to hostility and discrimination. But such organizations — from mainline Presbyterian and Methodist churches to mosques to synagogues to Hindu temples — enjoy an abundance of exemptions from regulations and taxes. And the number is multiplying rapidly.

Some of the exceptions have existed for much of the nation’s history, originally devised for Christian churches but expanded to other faiths as the nation has become more religiously diverse. But many have been granted in just the last 15 years — sometimes added to legislation, anonymously and with little attention, much as are the widely criticized “earmarks” benefiting other special interests.

An analysis by The New York Times of laws passed since 1989 shows that more than 200 special arrangements, protections or exemptions for religious groups or their adherents were tucked into Congressional legislation, covering topics ranging from pensions to immigration to land use. New breaks have also been provided by a host of pivotal court decisions at the state and federal level, and by numerous rule changes in almost every department and agency of the executive branch.

The special breaks amount to “a sort of religious affirmative action program,” said John Witte Jr., director of the Center for the Study of Law and Religion at the Emory University law school.

Professor Witte added: “Separation of church and state was certainly part of American law when many of today’s public opinion makers were in school. But separation of church and state is no longer the law of the land.”

The changes reflect, in part, the growing political influence of religious groups and the growing presence of conservatives in the courts and regulatory agencies. But these tax and regulatory breaks have been endorsed by politicians of both major political parties, by judges around the country, and at all levels of government.

“The religious community has a lot of pull, and senators are very deferential to this kind of legislation,” said Richard R. Hammar, the editor of Church Law & Tax Report and an accountant with law and divinity degrees from Harvard.

As a result of these special breaks, religious organizations of all faiths stand in a position that American businesses — and the thousands of nonprofit groups without that “religious” label — can only envy. And the new breaks come at a time when many religious organizations are expanding into activities — from day care centers to funeral homes, from ice cream parlors to fitness clubs, from bookstores to broadcasters — that compete with these same businesses and nonprofit organizations.

Religious organizations are exempt from many federal, state and local laws and regulations covering social services, including addiction treatment centers and child care, like those in Alabama.

Federal law gives religious congregations unique tools to challenge government restrictions on the way they use their land. Consequently, land-use restrictions that are a result of longstanding public demands for open space or historic preservation may be trumped by a religious ministry’s construction plans, as in a current dispute in Boulder County, Colo.

This is a very lengthy article. The section that interested me particularly had to do with exemptions from zoning rules. A quote:
In 2000 Congress adopted and Mr. Clinton signed the Religious Land Use and Institutionalized Persons Act, which restored the “strict scrutiny” test to local zoning decisions, making it easier for churches to challenge those decisions in court. The act also made it easier for prisoners to challenge restrictions on their religious practices.

The provisions that apply to prisoners have been upheld, but the Supreme Court has not yet ruled on the land-use provisions that Rocky Mountain Christian Church is invoking in its lawsuit against Boulder County. One of the church’s allies in the fight is the Justice Department’s civil rights division, which is defending the law’s constitutionality in cases around the country. * * *

Critics of the 2000 law argue that the First Amendment itself has long prohibited religious discrimination in zoning, and that such zoning decisions could have been challenged just as successfully in the courts if the law had never been passed.

When Congress considered the law, “what was actually being discussed was ‘How do we make sure churches don’t get discriminated against,’ ” said Marci A. Hamilton, a law professor at the Benjamin N. Cardozo School of Law at Yeshiva University in Manhattan and the author of “God vs. The Gavel: Religion and the Rule of Law” (Cambridge University Press, 2005), which calls for closer scrutiny of some religious exemptions, especially those affecting land use and family law.

“Unfortunately, the answer was to give such an expansive remedy that not only are they not getting discriminated against, but they are now capable of discriminating against all other landowners,” added Professor Hamilton, who is advising Boulder County in its case.

The financial stakes in the Boulder lawsuit are large.

Under the 2000 law, if the county loses, it will have to pay not only its own legal bills but also those of the church. If the church loses, it will sacrifice the money it has spent on legal, architectural and public relations fees, but it will not be required to pay the county’s legal bills. And unlike the county, it could seek free legal help from various religious advocacy groups, although it has not yet done so.

While a county victory might provide other local governments with a template for defending against similar challenges, some lawyers fear that if Boulder County, with its long history of careful land-use planning and its environmentally demanding voters, cannot successfully argue that preserving open space is a “compelling public interest,” few local governments could.

“Religious institutions have realized that land-use authorities are vulnerable to the threat of litigation,” David Evan Hughes, the deputy county attorney, asserted in the county’s court filings. Without greater clarity from the courts, he continued, the new law’s reach “will expand to the point where religious institutions are effectively dictating their own land-use regulations.”

The story includes links to the County of Boulder v. Rocky Mountain Christian Church filings.

This is not an isolated situation. A dispute has been going on for years here in downtown Indianapolis over whether a church in a historical district can blacktop a number of nearby lots intended for infill housing in the histroric district plan to use for parking.

Here is a list of previous ILB entries on the RLUIPA.

[More] Today's (Monday's) article, the second of the four part series, is titled "Where Faith Abides, Employees Have Few Rights." It too is very, very long and deals with employment law. A sample:

Legislators and regulators are not the only people in government who have drafted special rules for religious organizations. Judges, too, have carved out or preserved safe havens that shield religious employers of all faiths from most employee lawsuits, from laws protecting pensions and providing unemployment benefits, and from laws that give employees the right to form unions to negotiate with their employers.

Some of these exemptions are rooted in long traditions, while others have grown from court decisions over the last 15 years. Together, they are expanding the ability of religious organizations — especially religious schools — to manage their affairs with less interference from the government and their own employees.

The most sweeping of these judicial protections, and the one that confronted the novice nun in Toledo, is called the ministerial exception. Judges have been applying this exception, sometimes called the church autonomy doctrine, to religious employment disputes for more than 100 years.

As a rule, state and federal judges will handle any lawsuit that is filed in the right place in an appropriate, timely manner. But judges will almost never agree to hear a controversy that would require them to delve into the doctrines, governance, discipline or hiring preferences of any religious faith. Citing the protections of the First Amendment, they have ruled with great consistency that congregations cannot fully express their faith and exercise their religious freedom unless they are free to select their own spiritual leaders without any interference from government agencies or second-guessing by the courts.

I recall blogging about at least one (perhaps two) such cases during the past few years -- I'll try to locate it/them.

Posted by Marcia Oddi on Monday, October 09, 2006
Posted to General Law Related

Courts - "Big Money and Special Interests Are Warping Judicial Elections"

"Big Money and Special Interests Are Warping Judicial Elections" is the headline to a Legal Times commentary today written by Chief Justice Thomas J. Moyer of the Ohio Supreme Court and Bert Brandenburg, executive director of the D.C.-based, nonpartisan Justice at Stake Campaign. It begins:

“That’s obscene,” said Justice Lloyd Karmeier of the Illinois Supreme Court on the night of his electoral victory, two years ago. “How can people have faith in the system?”

Karmeier was referring to the breathtaking amounts of money raised by candidates in the 2004 elections for his state’s high court. The candidates for one seat raised $9.3 million—more money than was raised in 18 of 34 U.S. Senate races that year.

Illinois was not alone. Eight other states broke fund-raising records in 2004. And this fall 16 states will hold elections to choose their supreme court justices.

Over the past decade a perfect storm of millions in campaign contributions, increasingly hardball TV ads, and bare-knuckled special interest demands has descended on a growing number of state supreme court campaigns. The new politics deters good lawyers from becoming judges and increases voter cynicism. In August the states’ Conference of Chief Justices voiced “grave concern” over the changing nature of judicial elections and called for meaningful reforms.

At stake is nothing less than the fairness, impartiality, and independence of courts in the 38 states that use elections, in some form or fashion, to select or retain their high court judges.

The commentary concludes:
In many states with judicial elections, legal and civic leaders are considering switching to some form of the “Missouri Plan” for nonpartisan judicial selection. Sixteen states already use some form of the plan: A judicial nominating commission screens candidates and recommends a short list of potential nominees for their high courts. Justices are appointed to a brief initial term by the governor. Thereafter they must stand for re-election in uncontested retention elections. [ILB - Indiana is one of these Missouri Plan states]

It’s instructive to note that special interest groups have recently tried to undo these merit-based selection systems. Clearly, they see contested elections as a better means for getting “their” judges on the bench.

The bottom line is that we can’t leave judicial elections to the partisans and politicians. It’s time for everyone—judges, lawyers, and civic leaders—to enter the national debate over our courts. Americans want and need judges who are accountable to the law and the Constitution, not to special interests.

Posted by Marcia Oddi on Monday, October 09, 2006
Posted to Courts in general

Ind. Gov't. - More on: "IPS Board member says he will resign over felony"

Updating their story from October 4th, (see ILB entry here) about the school board member who plead guilty to a felony during the course of his current term in office, Indianapolis Star reporter Andy Gammill writes today that the "State has no way to ensure officeholders step down after being convicted of crime." Some quotes:

"There is no obligation of any entity to report the felony conviction of an elected official," said David Wyser, chief deputy prosecutor in Marion County. "I would say the elected official has both a moral and an ethical duty to self-report to their board."

For the most part, two informal checks put pressure on elected officials to report convictions, Wyser and other election experts said: the vested interest of political rivals to expose an opponent's wrongdoing, and the watchdog presence of the media.

Posted by Marcia Oddi on Monday, October 09, 2006
Posted to Indiana Government

Ind. Decisions - Star: City should abandon redundant and unworkable sex-offender ordinance

From an Indianapolis Star editorial today:

News that a city ban on sex offenders approaching public playgrounds has failed a court test may be worrisome to many parents, but it is not as though all barriers between children and predators have been removed.

The city ordinance against which U.S. District Judge Richard L. Young issued a preliminary injunction was an added, and probably redundant, layer.

State law makes it a felony for convicted perpetrators of sexual violence, when paroled, to frequent places where potential new victims might be found.

The city ordinance, passed by a City-County Council vote of 25-2 last May and supported by both the Democratic and Republican candidates for prosecutor, makes no distinction between a dangerous sex offender, as certified by a court, and someone who may have made the registry by having sex with a minor as a teen.

The ordinance has been criticized on this page as feel-good legislation that might punish offenders twice for the same crime. The judge likewise raised the specter of double jeopardy and cited other problems as well.

Vague wording about the 1,000-foot berth that sex offenders must give to playgrounds, beaches, sports facilities and other sites where children are present could have the effect of roping off the entire county from them, including polling places and routes to their jobs, Young noted. The provision exempting those who are accompanied by an adult who is not a sex offender is too murky to be enforceable, he added.

The city's lead attorney, Kobi Wright, acknowledges that the popular ordinance may be difficult to defend on appeal. Disappointed council members will have to decide whether to take that expensive route; to tinker with the ordinance again as they did prior to original passage in the spring; or to let existing laws, along with policing and parental vigilance, protect children. The last course may not be the most inviting, but it makes the most sense.

For background, start with this ILB entry from Oct. 6th.

Posted by Marcia Oddi on Monday, October 09, 2006
Posted to Ind Fed D.Ct. Decisions

Ind. Gov't. - Kokomo is "Anything but Open"

An opinion piece in the Kokomo Tribune today objects to Mayor Matt McKillip's re-election campaign including a promise to make "government more open, efficient and proactive." Some quotes:

We’re surprised – stunned, actually – that McKillip continues to tout “making government more open” as one of his top priorities. His administration is anything but that.

• On Aug. 9, we asked city Controller Phil Williams for a listing for all attorneys fees and deductibles paid by the city, year-to-date. We’re still waiting for that information.

• On Aug. 16, we asked Williams for a copy of purchase order No. 003403, check No. 123674 and voucher No. PI1694 from the claims approved by the Kokomo Board of Public Works & Safety of July 11. Still waiting.

• Also on Aug. 16, we asked Williams for an itemized list of all city money spent on KGOV-TV, including money spent hiring a Carmel-based video production company called “The Omni Centre,” as well as all program schedules and a listing of the programs currently playing on KGOV. Still waiting.

• Again, on Aug. 16, we asked Williams for an itemized list of the city’s landscaping/beautification spending for 2006 to date, including costs for concrete curbing, city labor, plants and any other costs related to the beautification efforts. Again, still waiting.

• On Aug. 18, we asked Williams for all documentation related to check No. 124861, paid to the vendor “Cardmember Service” from the claims approved by the Board of Works Aug. 15. Still waiting.

McKillip’s and Williams’ information blackout apparently has been adopted by others in City Hall. Last week, we tried to ask parks superintendent Dan Smith where an additional $2 million in parks department money had come from. He wouldn’t return phone calls and walked away from one of our reporters.

We later asked to listen to the audio tape of the September Park Board meeting, but were told that tape had been erased.

City residents deserve to know what city government is doing with their property tax dollars. They must be allowed to question government actions. If they don’t know where their money is going or can’t ask a city official even the simplest of questions, then their government lacks the very principles McKillip claims guide his administration.

They are accountability, professionalism and responsiveness.

Posted by Marcia Oddi on Monday, October 09, 2006
Posted to Indiana Government

Ind. Courts - "Evidence favors merit selection of judges"

"Evidence favors merit selection of judges" is the headline to an editorial today in the South Bend Tribune. The Tribune published a long series on the county judiciary late last month. Particularly relevant is the story from Sept. 26th headlined "How judges chosen an ongoing debate: St. Joseph one of two counties in Indiana where retention is still used."

From today's editorial:

Merit-selected Superior judges run on their records rather than against opponents. The only Superior judge on the ballot for retention in November is Jerome Frese.

In a retention vote, voters choose "yes" or "no." Since 1973, when the merit selection system came into being in St. Joseph County, all Superior judges have been retained.

Some people have a problem with that. They don't think retention votes give voters enough choice, or enough information. In theory, Superior judges run on their performance, but they don't campaign. And it isn't very easy to evaluate performance. That point was made clearly by The Tribune series "Judging the Judges" (Sept. 23-28).

While it is true that voters don't get to decide between competing Superior judge candidates, "yes" or "no" is a choice. In fact, voters will have more of a choice when they decide whether to retain Frese than they will when they decide whether to re-elect unopposed Nemeth. They'll also will have more of a choice than they did when unopposed Gotsch was elected in 2004.

We're not suggesting that Gotsch and Nemeth aren't deserving of voters' support. They are. Still, there isn't a "no" choice on the ballot when an elected judge stands unopposed.

The rationale for merit selection of Superior judges is something to consider, too. The fact they do not have to campaign for office or deflect an opponent's criticism gives Superior judges independence from political pressure. Superior judges preside over most of the high-profile adult criminal cases. The elected Probate judge presides over probate and juvenile court, and the elected Circuit Court judge mostly handles civil cases.

In order to evaluate St. Joseph County's judicial selection system, one also must consider the quality of the judges it has produced.

With few exceptions over the last 33 years, Superior judges have been dedicated and competent. Several have gone on to Indiana Court of Appeals and Supreme Court appointments or to federal judgeships.

The case for the current judicial selection system is a strong one. But its apparent weakness -- voters' difficulty in evaluating judicial performance -- does need to be addressed. When the St. Joseph County Bar Association failed in 1990 to create an evaluation process to help the public size up judicial candidates, it didn't try again. It should.

A judge evaluation survey that sticks to the fundamentals would be the most objective and the least onerous. Iowa has a statewide merit selection system. Bar Association members rate judges on eight factors relating to knowledge of the law, courtroom management, and promptness and clarity of rulings. That could be done in St. Joseph County.

Such a survey wouldn't answer every question a voter might have, but it would be a good and helpful effort.

Posted by Marcia Oddi on Monday, October 09, 2006
Posted to Indiana Courts

Ind. Decisions - Court of Appeals "clarifies conflict of interest law" in NFP opinion

Ed Feigenbaum of Indiana Daily Insight posts a list of "teasers" each Monday of items he has written about in his most recent weekly pay publication, Indiana Legislative Insight. This item caught my eye this morning: "Court of Appeals clarifies conflict of interest laws." I contacted Ed to see what the case was. It turns out it was this NFP from Oct. 4th:

In Mary Cox v. State of Indiana (NFP), a 9-page opinion, Judge Bailey writes:

I. Was Cox a Public Servant?

A public servant who knowingly or intentionally has a pecuniary interest in or derives a profit from a contract or purchase connected with an action by the governmental entity served by the public servant commits conflict of interest, a Class D felony. Ind. Code § 35-44-1-3(a). Public servant is defined as a “person who is authorized to perform an official function on behalf of, and is paid by, a governmental entity.” I.C. § 35-41-1-24(1).

On appeal, Cox argues that she was merely a public employee, not a “public servant,” as defined above. In so arguing, Cox emphasizes that the definition of “public servant” has two elements: performing an official function and being paid. If the statute were meant to apply to all state employees, she suggests, the only requirement of being a public servant would be receiving payment from a governmental entity. The legislature’s inclusion of “perform[ing] an official function” in the definition, she asserts, was intended to distinguish certain state employees from others.

We disagree with Cox’s interpretation of the statute. If the definition of “public servant” had the single element of being paid by a governmental entity, then vendors to governmental entities would qualify as “public servants.” This was apparently not the legislature’s aim in crafting the conflict of interest statute. * * * We find that Cox was a public servant for purposes of the conflict of interest statute. [ILB - This is the "clarification" - rejecting Cox's argument that the conflict of interest statute does not apply to all state employees]

II. Was Variance in Charging Information Fatal?

Here, Cox was charged with conflict of interest, an element of which is service to a governmental entity. I.C. § 35-44-1-3(a). The State filed charging information alleging that Cox was an employee of Marion County. The facts proved at trial, however, established that Cox was, in fact, an employee of FSSA, a state government department. In closing argument, Cox asserted without explanation that she was prejudiced by this variance. * * *

Essentially, the charging information misidentified Cox’s employer. We trust that she understood the true identity of her employer. Cox was not misled by the State’s charging information. Nor was she prejudiced. The State’s affidavit of probable cause, filed the same day as the charging information, stated repeatedly and accurately that Cox was an employee of FSSA. Indeed, in closing argument, Cox revealed that she had been waiting for the State to amend its charging information. Thus, Cox’s preparation of her defense was not harmed by the State’s original misidentification of her employer. * * *

In Madison v. State, the information stated that the defendant’s hand grenade was loaded with nitroglycerine, while the proof showed that it was filled with T.N.T. The Madison court found that, for the murder charge, language generally identifying the substance as an explosive would have sufficed. Madison v. State, 234 Ind. 517, 130 N.E.2d 35, 47 (1955). Several other cases have followed the reasoning in Madison.5 Where courts have reversed convictions, the variance either amounted to an entirely different crime,6 or the variance created ambiguity as to exactly which alleged criminal act was the subject of the charge.

Here, Cox was charged with conflict of interest as a public servant of a entity. Because Cox was not misled, prejudiced, or potentially subject to double jeopardy, it is not material whether that governmental entity was Marion County or the State of Indiana. The variance between the State’s charging information and its proof at trial did not constitute a fatal variance.

Conclusion. The trial court properly denied Cox’s motion to correct error. Affirmed.

Posted by Marcia Oddi on Monday, October 09, 2006
Posted to Ind. App.Ct. Decisions

Sunday, October 08, 2006

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 activities from the week of October 1st.

Posted by Marcia Oddi on Sunday, October 08, 2006
Posted to Ind. Sup.Ct. Decisions | Indiana Transfer Lists

Courts - More about Supreme Court practitioner Tom Goldstein

On June 1, 2004 the ILB quoted a story from Tony Mauro, including the following:

Five years ago [Thomas] Goldstein kicked over the ossified applecart of Supreme Court practice by creating a one-man practice devoted exclusively to high court litigation. He aggressively trolled for clients by scrutinizing circuit court conflicts, and undercut the big firms on fees. Eleven oral arguments and dozens of briefs later, Goldstein, 33, has earned the grudging respect of his elders and is billing more than $1 million a year -- still undercutting his top competitors, though not by as much.
Goldstein also started the blog, SCOTUSblog.

The Record, billed "the independent newspaper at Harvard Law School", has this article about Goldstein recently, written by Jonathan Cohen. Here is some of what I found interesting:

The American Constitution Society hosted Thomas Goldstein at HLS this past Wednesday. Goldstein, the Head of Supreme Court Litigation for Akin, Gump, Strauss, Hauer & Feld and a lecturer at HLS and Stanford Law School, spoke about his path to prominence, recent Supreme Court jurisprudence, and his predictions for the Court going forward.

Goldstein's first piece of advice for the roomful of aspiring lawyers was that they can become involved in interesting projects by volunteering their time. Goldstein told how, by agreeing to work for free, he had landed an internship with Nina Totenberg, the legal affairs correspondent at National Public Radio. He returned to the same job for his 2L summer, and confessed that he "fell in love with the Supreme Court" during these internships. He explained how he later used this insight to build his Supreme Court practice - he would identify interesting cases and take them on a pro bono basis.

Goldstein also encouraged students to find a niche for themselves. He explained how he moved from being an unknown to being cited in the press as "Supreme Court commentator, Tom Goldstein." Rather than building a reputation as an expert and soliciting the press on the strength of that reputation, Goldstein began tabulating statistical data on Supreme Court Justices' voting patterns and sending that data to the press months before the information was otherwise available. When reporters cited to his data, they couldn't just list the source as "some guy named Tom," so they christened him "Supreme Court commentator, Tom Goldstein."

Posted by Marcia Oddi on Sunday, October 08, 2006
Posted to General Law Related

Environment - Feddeler landfill threat; outdoor wood-burning furnaces

Two stories this weekend, neither very reassuring for varying reasons.

Feddeler Landfill. Sharlonda L. Waterhouse of the Gary Post-Tribune reported Saturday, via a story that begins:

LOWELL -- Contaminants at the improperly closed Feddeler landfill have reached one family's well water.

Town officials maintain that water and the environment of nearby residents are at low risk for contamination. But one home has been threatened. * * *

"Thankfully they had been suspicious prior and had been drinking bottled water," said Jeff Langbehn, executive director for the Lake County Solid Waste Management District, which recently ordered tests of the 40-acre property once owned by Robert Feddeler.

"I was relieved to hear that. This is a terrible thing. We've been able to step up and prevent any loss of life," Langbehn said.

Langbehn said he doesn't believe all nearby families should resort to bottled water.

"I don't think people should panic ... but I do think they should be concerned," he said.

The greatest danger, said Langbehn, town administrator Sue Peterson and West Creek Township Trustee Rick Niemeyer, is to anyone who trespasses onto the landfill, whether wayward children or hunters.

"The threat is very severe," Langbehn said.

Added Niemeyer: "It has toxic stuff. It's a problem that's not going away and could get worse. We must address it now."

New test results reveal the amount of hydrogen cyanide there is 20 times the safe exposure level, Langbehn said.

"It's the stuff they use in gas chambers. It'll kill you. It's lethal. No ifs, ands, or buts about it," he said.

Outdoor wood-burning furnaces. Lauri Harvey Keagle of the Munster (NW Indiana) Times wrote Friday:
PORTAGE | Residents will have a say in how to regulate outdoor wood-burning furnaces through a local committee working on a draft ordinance for local municipalities.

The Northwestern Indiana Regional Planning Commission's Environmental Management Policy Committee is looking for residents to devise a draft local ordinance governing the devices.

Outdoor furnaces are not wood-burning stoves. 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 from 1,800 square feet to 20,000 square feet in size.

The stack heights for the units are much lower than traditional roof line chimneys and can emit thick, black smoke at ground level.

Currently, there are no local, state or federal regulations on the furnaces.

While outdoor wood-burning furnaces are not prevalent in the region, members of NIRPC's Environmental Management Policy Committee expressed concerns earlier this year about being pro-active about them. The group agreed to form a subcommittee to draft a sample ordinance that could be adopted by local municipalities interested in regulating the units.

Reggie Korthals, director of environmental programs for NIRPC, said Emerson Delaney, a member of the Chesterton Board of Zoning Appeals, has been selected to serve as chairman of the committee.

"He has one of these units and is familiar with (the issue)," Korthals said.

Well, I was right with them until that last sentence ...

Posted by Marcia Oddi on Sunday, October 08, 2006
Posted to Environment

Law - "Law blogs raising prickly ethical issues"

Thanks to How Appealing for pointing to this article by Leigh Jones in The National Law Journal. Some quotes:

For many lawyers, blogs have become a popular marketing tool to catapult their firms' names into the World Wide Web. For others, they have become a convenient mechanism for discussing an array of topics from feminism to federalism.

And while many blogs lie somewhere between unabashed advertising and pure political speech, the amorphous quality of these online logs are creating uneasiness about their ethical implications.

"It all involves speech, but the distinctions are not clear," said Larry Ribstein, a professor at the University of Illinois College of Law who authors Ideoblog on the Internet.

Many states are in the process of revamping their attorney ethics rules, and part of that process involves the prickly issue of whether blogs should be regulated as advertising.

On the one hand, states want to protect consumers from unscrupulous lawyer advertising presented under the guise of an online diary. On the other hand, they want to preserve the free flow of ideas-and valuable legal information presented in a public forum-that the new technology has fostered.

Ribstein, a corporate and constitutional law professor, maintains that whether blog content is deemed advertising or fully protected political speech is an issue that could become the quintessential test of the bounds of commercial speech doctrine.

"It doesn't get any hazier than blogs," he said.

The proliferation of blogs-short for Web logs-has exploded in the last two years. In general, they are logged, online postings written by lawyers discussing current rulings, political events or media coverage related to a particular area of the law. They usually encourage readers to weigh in on topics and post their entries as well.

Many blogs, however, are more personal in nature and include observations on a vast number of topics. Still others are focused on marketing and maintained with the intent of attracting clients but may be informational nonetheless. * * *

All that blogging has raised questions about whether ethics rules are in sync with the technology.

"Nobody's perfected the rules as they relate to advertising because the arena keeps changing," said Micah Buchdahl, an attorney and law firm marketing consultant in Moorestown, Pa. "Nobody's even close."

States look at rules

But some states are trying. New York is reviewing its lawyer advertising rules, and some of the proposed changes are making bloggers nervous. In trying to formulate rules to encompass everything from print ads to Internet pop-ups, a group of presiding justices last spring broadened its rules on lawyer advertising. The state has delayed implementation of any changes until after a comment period, which was extended last month. The changes would pertain not only to New York firms, but, significantly, to out-of-state attorneys advertising in New York.

Part of the concern is that the proposals pertain to "written advertisements and solicitations and computer-accessed communications." Such a definition, say some observers, could include blogs. If so, the rules, which propose, for example, a requirement that law firms file their advertisements with a disciplinary committee for public view and scrutiny, could stifle blog dialogue.

"They border on ridiculous," Buchdahl said.

Other states are mulling revisions as well. The State Bar of California is considering changes to several of its ethics rules, including those pertaining to advertising. A spokesman for the association said that while the organization has not specifically addressed blogs in its discussions, they are part of a larger consideration regarding online advertising.

In addition, Indiana and Rhode Island are considering amendments, and Missouri and Texas recently updated their rules with regard to advertising.

Ethics opinions written by state ethics officials could shed some light on the issue, but an opinion specifically addressing blogs has yet to surface, said Buchdahl, who has been watching for a blog-focused opinion.

Posted by Marcia Oddi on Sunday, October 08, 2006
Posted to General Law Related

Ind. Law - More on: Indiana felons must provide DNA

Following up on this ILB entry from July 30th headed "Indiana felons must provide DNA", which includes useful background info, Bob Kasarda of the Munster (NW Indiana) Times reports today:

VALPARAISO | Everyone convicted of a felony after July 1, 2005, will soon be required to turn over a DNA sample to be placed into a nationwide database.

The Indiana Department of Correction will collect samples from everyone sent to prison. But the vast majority of felons from Porter County take part in local sentencing programs, which leaves county officials with the challenge of complying with the new law.

Porter County Adult Probation Chief Neil Hannon has proposed leaving most of the work to Strand Analytical Laboratories, an Indianapolis-based firm hired to coordinate the collection effort statewide.

The lab will collect the samples locally free of charge, he said.

He prefers not to have his probation officers collecting the samples because the officers could be called out of state to testify each time a local felon reoffends.

Of the 1,500 people convicted of felonies last year in Porter County, only 117 were sent to prison, Hannon said.

Hannon presented his proposal in writing this week to the county's judges, who kicked it back to him to be worked out in further detail, according to Porter Superior Judge Roger Bradford.

Bradford voiced concern about the lab collecting samples from large numbers of offenders at the same time. He said he would prefer to see the samples collected on a per-case basis.

"We want to get it fresh after sentencing," he said.

Posted by Marcia Oddi on Sunday, October 08, 2006
Posted to Indiana Law

Ind. Courts - Allen County court employees learning Spanish

The Fort Wayne Journal Gazette has a story today by Dionne Waugh headed "Court officials add Spanish to their tools to assist residents." A quote:

Though this class might seem just like any other group of people learning Spanish, it’s not. The class is made up of about a dozen Allen County Courthouse employees, from court reporters to administrators, who are trying to learn enough of the language so they can communicate with the rising number of Hispanics who are coming to the Courthouse.

“I schedule a lot of weddings and interpreters, and sometimes we get people coming in that can’t speak English very well,” said Rose Moya, who works in Courthouse administration. “This is helpful to be able to converse.”

The goal for the court officials in the class is not to become fluent in Spanish but rather how to communicate information they most often handle in court, such as greetings, dates, times, telephone numbers, as well as how to explain courtroom procedures and give directions.

The courses are taught and designed throughout the state by Ivy Tech Community College. The project was created by and paid for by the Indiana Judicial Center, the Indiana Supreme Court and the Division of State Court Administration.

See also this ILB entry from Sept. 25th about federal interpreters flying from federal district court to court.

Posted by Marcia Oddi on Sunday, October 08, 2006
Posted to Indiana Courts

Environment - Stories on DNR Strip Mining, Dust Control for Farmers, and CSO Consent Decree Signed by Indianapolis [Updated - already]

DNR Strip Mining. Don Jordan, Hoosier Times Indiana Outdoors columnist, writes today:

Much to the consternation and outrage of Indiana's hunters and anglers and the residents of Daviess County, the Indiana Department of Natural Resources is about to strip mine the Glendale Fish and Wildlife Area, one of Indiana's crown jewels.

According to reports that appeared across the state last week and on national television, Indiana DNR Director Kyle Hupfer has allowed a subsidiary of Peabody Coal to conduct exploratory drilling on the 8,000-acre property and plans hearings on coal mining there.

According to various reports, Black Beauty Coal Co. approached Hupfer about exploratory drilling. He promptly produced a license for the Peabody subsidiary to proceed. If the core samples look good to Black Beauty, Hupfer says he will convene public meetings where residents can provide input about "future mining" - not IF there will be future mining. It sounds like a done deal, and the core samples aren't even back yet.

Residents who were around when the wildlife area was established in 1956 may remember when the DNR bought the land from "willing" land owners who were told their property would be set aside for fish and wildlife forever. There was never any mention of turning the land into a huge strip mine and destroying the peace and tranquility of an entire county.

The rumor is that Hupfer has been conspiring to trade away Glendale for 10,000 acres of "reclaimed" mine lands in west-central Indiana. Could it be that Hupfer is trading one of the most beautiful public recreation areas in the state for the reclaimed desert that is the Minnehaha Fish and Wildlife Area? Hey, trading Glendale for Minnehaha is not a good deal for us, period. Great deal for Peabody. * * *

Coal mining at Glendale is just the latest in what has become a string of public resources give-aways. In Our Man Mitch's nearly two years on the job, he and his boy Hupfer gave away the state forests to logging companies; turned over state park land to private business at the Dunes; and proposed handing canned hunt operators the right to operate for the next 12 years under what amounts to a state-sponsored monopoly.

What can possibly be worse than strip mining Glendale? I'm looking for a bigger move on the state parks next. It will be something like Six Flags Over McCormick's Creek.

The only hope of stopping this "privatization" train is at the state Legislature, which means there is no hope of stopping this on-going theft of the public's treasure. The U.S. Fish & Wildlife Service will have to sign off on mining at Glendale, and in the past I would have predicted that is where the coal mine plan would stop. * * *

If hunters and anglers out there can't get together to stop this one, we might as well sell our gear or start fishing for catfish in pay ponds and hunting at one of those canned hunting "preserves" that will be making us the slob hunter capital of the Midwest.

It is too soon to lament Glendale's demise, but the smart money is on Peabody.

Dust Control for Farmers. From the Lafayette C&J, a story by Curt Slyder. It begins:
Local agriculture experts have differing opinions on how much an announced tightening of the controls on dust emissions will affect farmers.

Some say local agriculture already meets the standards. Others say the effects will be devastating.

"This will definitely affect agriculture," said Tippecanoe County farmer Alan Kemper. He thinks it could also affect consumers by driving up prices on meat and other agricultural products.

On Sept. 21, the Environmental Protection Agency announced a strengthening of the previous daily fine particle emissions standard by nearly 50 percent, from 65 micrograms of particles per cubic meter to 35 micrograms.

States must meet the new standard by 2015, with a possible extension to 2020 depending on local conditions.

It was earlier thought that agriculture and mining would be exempted from the new standards. But officials recently decided no particular industry could legally be excluded.

Indy Consent Decree.From a U.S. Department of Justice press release:
City of Indianapolis Agrees to Make $1.86 Billion in Improvements to Sewer System

WASHINGTON — The city of Indianapolis has agreed to make an estimated $1.86 billion worth of improvements to resolve longstanding problems with overflows from its sewer system, the Justice Department and Environmental Protection Agency (EPA) announced today. Indianapolis will make the improvements over 20 years to reduce the number of overflows—which currently occur approximately 60 times per year—to four or fewer times per year. The city will also pay a penalty of $1,117,800, which will be divided evenly between the United States and Indiana. The city also will spend $2 million on a supplemental environmental project to eliminate failing septic systems.

[Updated] Thanks to TDW, here is a commentary from the Evansville Courier& Press by Steve Ford that I overlooked this morning. My favorite part:
One of the things the DNR will push is that it can use the money to buy more public land and that Glendale would be reclaimed. So what?

It's like somebody trying to force you to have a free nose job with the promise of a bigger, uglier nose in its place. I'm going to pass on that. I think the public will pass on free cosmetic surgery on two square miles of Glendale, too.

Posted by Marcia Oddi on Sunday, October 08, 2006
Posted to Environment

Ind. Gov't. - Should legislators should be allowed to serve as officers or directors of state universities and schools?

"Troubling ties with lawmakers" is the headline to this editorial today in the Fort Wayne Journal Gazette. Some quotes:

There are dozens of recommendations and issues identified in a report on Indiana boards and commissions worth discussing. One that most certainly should be pursued is whether legislators should be allowed to serve as officers or directors of state universities and schools.

Just look at the president’s staff for Ivy Tech Community College to see why. It includes three powerful members of the General Assembly, while a fourth member serves as Ivy Tech’s dean of apprenticeship studies. It’s difficult to imagine how the state budget and education policy issues can be handled objectively by lawmakers with direct financial ties to one state institution. * * *

The Ivy Tech staff includes the highest ranking state senator – President Pro Tem Robert Garton – and the highest ranking House Democrat, Rep. Patrick Bauer, a former House speaker who would likely return to the seat if Democrats win control of the Indiana House. Another Ivy Tech employee is Rep. William Crawford, the ranking Democrat on the budget-writing House Ways and Means Committee. Rep. Craig Fry is a fourth lawmaker on the Ivy Tech payroll.

Garton soon will be a former legislator – he lost his re-election bid in the May primary, but he’ll retain his legislative clout by virtue of his 36-year tenure and stature as the longtime Senate president pro tem.

The Ways and Means Committee writes the first draft of a state budget. That determines how much state money goes every two years to Ivy Tech. Senate and House leaders have great power to shape final budget language. * * *

Education is the largest expenditure in the state budget, and it tarnishes the process to have university employees playing major roles in budget- and policy-making. This is not an unavoidable circumstance of a citizen legislature. It is a clear example of cultivating influence.

It’s time to seize the recommendation and eliminate not only an issue of inefficiency, but one of great ethical concern.

On Sept. 3rd the ILB posted an entry titled "Are the Indiana Week in Review (IWR) pundits going to be wrong again?" It was an "ILB opinion piece" (as is this - something the ILB mercifully tries to hold to a minimum). A couple quotes:
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!"

The entry goes on to discuss how the recent Indianapolis Star database of "all" state employees was in fact incomplete:
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. * * *

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.

Since that posting last month, the ILB has located, thanks to the wonders of the internet and a WISHTV story from Oct. 27, 2005 (and still online), titled "Lawmakers on Ivy Tech Payroll Getting Paid Twice by Taxpayers," information on both the Ivy Tech' lawmakers salaries, and their job descriptions. (See also this WISHTV story - "State Lawmakers Answer Questions About Ivy Tech Positions," from Oct. 30, 2005.)

Here is a link to the document still on the WISHTV site, titled "Compensation for Lawmakers Employed by Ivy Tech Community College." (And in case you can't get it there at some point, I've posted a copy here.) Note that these are 2004 Ivy Tech salaries.

To see how to access the most recent salaries of our part-time General Assembly, check out this ILB entry from Aug. 20th. For instance, the Star list shows Rep. Bauer earning $47,588.40 from the House, Crawford - $47,958.40, Fry - $42,460.40, and Senator Garton, $48,826.40, all presumably on top of their Ivy Tech salaries.

But of course that is not the real issue. The issue, as the Fort Wayne Journal Gazette points out today, is:

Just look at the president’s staff for Ivy Tech Community College to see why. It includes three powerful members of the General Assembly, while a fourth member serves as Ivy Tech’s dean of apprenticeship studies. It’s difficult to imagine how the state budget and education policy issues can be handled objectively by lawmakers with direct financial ties to one state institution.

Posted by Marcia Oddi on Sunday, October 08, 2006
Posted to Indiana Government | Indiana Law | Legislative Benefits

Saturday, October 07, 2006

Courts - Running for state court judge in Montana, South Dakota, or Colorado

Law columnist Andrew Cohen of the Washington Post writes today:

Election season this year means open season on judges around the country. In Montana, riled-up citizens tried to get onto the ballot a measure that would allow state court judges to be recalled from office at any time for any reason. In South Dakota, an initiative is set to be voted upon in November that would allow citizens to sue and otherwise punish judges for unpopular decisions. And in Colorado, a conservative group is fighting to impose sweeping term limits upon all of the state's appellate court judges.

Let's take the last one first. Colorado's Amendment 40 would remove from office at the same time five of the state's current Supreme Court justices and seven of its current 19 intermediate appellate court judges. The state's judiciary thus would lose on one day a vast reservoir of institutional knowledge and experience -- not to mention by definition the best judges that Colorado has to offer. Why? Because proponents of the initiative, including John Andrews, the leader of the movement, believe that "there's a danger of public officials curdling like old milk if left around too long." * * *

Amendment 40 is such a bad idea -- purporting to solve a problem that does not exist by offering a plan that would make things worse -- that it has driven the state's major political figures of past and present, both Democrat and Republican, to come out against it. The current governor, Bill Owens, a Republican who was once the darling of the national party, has teamed with Roy Romer, his fabled Democrat successor, to come out against Amendment 40. So too has the Republican Attorney General. But it says something about the current political climate that an idea as senseless as this one would have made it even this far.

Speaking of senseless, welcome to South Dakota, where supporters of Amendment E hope a new day will soon dawn where citizens will be able to turn the table upon judges and punish jurists over unpopular decisions. Amendment E would create a "grand jury" of citizens, rotating regularly, that would meet to determine whether a complaint against a judge warranted taking away from that judge long-held "immunity" from lawsuits (right now, and for obvious reasons, you can't sue a judge for failing to rule your way). Amendment E, as in Error, means that a group of citizens who don't like a judge's decision -- remember, judges when interpreting the Bill of Rights are the only checks against the tyranny of the majority -- can take their revenge.

Under Amendment E, judges could lose part of their salary or retirement pay depending upon how much trouble they get into with that runaway grand jury the initiative would create. There is nothing subtle about it Amendment E: vehemently anti-judiciary forces want to diminish the authority of the courts and to destroy the independence of the judiciary. And the worst part? They seem to be winning, if recent polls in South Dakota are accurate. Just imagine what the passage of Amendment E would mean to the practice of law, and the legal system itself, in South Dakota. * * *

Fortunately, at least, the citizens of Montana won't have the opportunity, for now anyway, to vote this November on another ominous anti-judiciary measure. CI-98 was designed to allow Montanans to recall state court judges at any time for any reason. All it would have required was a "justification statement" that set forth "any reason acknowledging electoral dissatisfaction with a justice or judge notwithstanding good faith attempts to perform the duties of the office." But CI-98 now is in legal trouble before Montana voters get to see it; turns out that there may have been fraud in the collection of the signatures needed to get the measure, and a few others, on the ballot in the first place. * * *

It is tough enough to be a judge these days, especially a state-court judge. There is perhaps more outward political pressure upon judges than there has ever been before at a time when they are less insulated, and thus more prone to political attack than ever before. Nationally, the false charge of "judicial activism" has made local judges the target of special-interest political groups even when those judges are simply following established law -- simply following the precedents that have been given to them by the higher courts, including the not-exactly-liberal United States Supreme Court.

[More, from another venue] "Fair and Independent Courts: A Conference on the State of the Judiciary" is the name of a 2-day conference held late last month by "Georgetown University Law Center, which welcomed retired Justice Sandra Day O'Connor, six sitting Supreme Court justices, and hundreds of other nationally recognized leaders." More:
O'Connor and Justice Stephen Breyer chaired the conference, "Fair and Independent Courts: A Conference on the State of the Judiciary." Georgetown Law and the American Law Institute served as its co-sponsors. Organizers convened the conference to promote discussion about the preservation of federal and state courts' tradition of independence — seen in partisan confirmation battles, calls for impeachment or recall following unpopular decisions, and public opinion polls revealing resentment of "judicial activism" — and to develop specific recommendations to strengthen judicial autonomy and increase public confidence in the judiciary.

"Directing anger toward judges has had a long tradition in our nation, I'm sorry to say," O'Connor said during remarks at the start of the conference on Thursday. "While scorn for some judges is not altogether new, I do think that the breadth of the unhappiness being currently expressed, not only by public officials but in public opinion polls in the nation, shows that there is a level of unhappiness today that perhaps is greater than in the past and is certainly cause for great concern."

You may view videos of the entire conference via this link.

Posted by Marcia Oddi on Saturday, October 07, 2006
Posted to Courts in general

Ind. Courts - Anderson attorney suspended for a year

"$4,000 mishandled gets attorney a year’s suspension" reads the headline in the Anderson Herald Bulletin. Lee Noble reports:

The Indiana Supreme Court disciplined Anderson attorney Scott L. Webb for misconduct late last week. They found he misappropriated $4,000 given to him by a client.

Beginning Nov. 13, Webb will be suspended from law practice for 12 months.

The family of one of Webb’s former clients, Forest Guffey of Tipton, reported to the Indiana Supreme Court Disciplinary Commission that on Sept. 15, 1998, Webb accepted a $3,000 payment to hire a DNA expert. Webb never hired an expert but told the family otherwise, according to Indiana Supreme Court filings.

The court found he did not deposit that money into his trust account.

Attorneys are required to arrange trust accounts when they handle money that is not intended as payment for their services, according to Donald Lundberg, executive secretary for the Disciplinary Commission.

“Anytime a lawyer handles money that is not the lawyer’s money, the lawyer can’t keep that money in a business account or his own account,” Lundberg said. “It has to be kept in a denominated trust account to be segregated.”

Webb was also accused of telling the prosecutor and his client’s post-conviction attorney that the client could never afford to hire an expert during the time he represented him. The court also found the client paid Webb another $1,000 during the trial. It was never credited to the client’s account, according to Indiana Supreme Court filings. * * *

Lundberg said that a complaint like this isn’t common.

“This is actually, to my recollection, the only case we’ve dealt with where the issue has been the lawyer’s failure to follow through on DNA expert testimony,” Lundberg said. “Another matter for this case was that he took money from a client and didn’t hold it aside for its intended purpose. That’s not as uncommon.”

When lawyers are accused of violations of codes of conduct, it is not considered a criminal offense. Since it’s not criminal, Webb does not face jail time, only suspension from his career and the subsequent loss of thousands of dollars that come with a required year off work.

Here is the Supreme Court's Order Finding Misconduct and Imposing Discipline, filed 9/28/06.

Posted by Marcia Oddi on Saturday, October 07, 2006
Posted to Indiana Courts

Ind. Court - More trouble reported for suspended Lake County attorney

Bob Kasarda of the Munster (NW Indiana) Times reports today, in a story headlined "Former Hebron official resigns Democratic Party posts," that:

VALPARAISO | Former Hebron Town Council President Michael Haughee denies he sexually assaulted a woman in a wheelchair at her Hebron home earlier this year.

"He's saying it absolutely didn't happen," said Larry Rogers, Haughee's defense attorney.

Haughee resigned Friday from two posts he held with the Democratic Party as a result of the criminal charges, according to Leon West, Porter County Democratic Party chairman. * * *

Haughee denied the allegations in May when confronted by police and said he stopped by the woman's house to talk to her about registering to vote, police said. He then asked the case be dropped because of her physical problems and said he might have kissed her.

When asked about the nearly eight-month delay in filing the charges, police and prosecutors said interviews and investigations were under way.

In the meantime, Haughee's law license remains suspended and two additional accusations in that matter have been added to his list of problems, according to the clerk's office for the Indiana Supreme Court.

Each of the accusations accuse him of failing to cooperate in an disciplinary investigation, according to the clerk's office. No further details were available.

Here are two earlier ILB entires about Mr. Haughee, from 4/6/06 ("State suspends Griffith attorney indefinitely") and 5/7/06 ("Tiny ad could cause big trouble for lawyer").

Posted by Marcia Oddi on Saturday, October 07, 2006
Posted to Indiana Courts

Environment - More on: "What's next? Strip mining in state parks?"

Updating this ILB entry from Oct. 2nd, the Fort Wayne Journal Gazette has an editorial today titled "Protecting public land":

Allowing a private coal company to drill in an Indiana wildlife preserve is unconscionable. It has become clear that Gov. Mitch Daniel’s appointment to lead the Indiana Department of Natural Resources does not understand his duty to protect the public lands that belong to Hoosiers.

Kyle Hupfer allowed the Black Beauty Coal Company to do exploratory drilling in the Glendale State Fish and Wildlife Area in Daviess County. And it was only after residents, horrified by the sight of drilling rigs in Glendale, rang alarm bells that Hupfer decided to inform the public – those who own the land – about his wrongheaded plan.

Hupfer gave Black Beauty permission to drill in late August. The company completed its exploratory drilling at the end of September, and the company and DNR are awaiting the results. The DNR is holding its public input meeting about “the possibility of coal mining” in Glendale on Wednesday in Montgomery in southwest Indiana.

Hupfer is sure to get an earful from the locals who rightly consider the wildlife area to be a “jewel of the county” and are outraged to see it desecrated.

Hoosiers should not only be troubled by the flagrant harm being done to public land but also the ties between the Daniels administration and Black Beauty Coal. According to state campaign finance reports, Steve Chancellor, president of Black Beauty, has given Daniels at least $230,000.

Hupfer has attempted to excuse drilling by saying Hoosiers deserve to know what resources might be there. He says any profits from coal mining in the wildlife area would go toward purchase of additional wildlife habitat. He also says that final approval of any mining would have to come from the U.S. Fish and Wildlife Service. Federal oversight provides no assurance the land will be protected.

In a press release Hupfer said, “The DNR and the administration will be neutral in this process. Hunters and anglers of Indiana consistently point to a lack of public land as their biggest area of concern. It is those hunters and anglers who will need to make a decision as to whether the additional land to be acquired by the state for public hunting and fishing access is worth the disruption while mining takes place.”

The process does not appear neutral. Hupfer needs to abandon his plan to allow a coal company to take over Glendale.

Bryan Corbin of the Evansville Courier& Press has a news story today on the upcoming meeting. Some quotes:
INDIANAPOLIS - A large turnout is expected Wednesday when state Department of Natural Resources officials conduct a public meeting on the possibility of coal mining at the Glendale State Fish and Wildlife Area.

Glendale - and Dogwood Lake within it - are popular sites in Daviess County, Ind., for hunting, fishing and harvesting mushrooms.

With a coal-mining operation taking place on adjacent private property, the DNR in August allowed Black Beauty Coal Co. to conduct low-impact exploratory drilling on the northernmost two square miles of the wildlife area. * * *

"Dogwood Lake is a very important part of life in Southwestern Indiana, and we will not entertain any proposal that would disrupt the use of the lake," DNR director Kyle Hupfer said in a news release. "However, we owe it to the citizens of Indiana to determine what value, if any, the resources below the surface of a small part of Glendale may have." * * *

On Friday, Gov. Mitch Daniels also weighed in on the issue.

"I think local preferences probably ought to govern in this case," Daniels said. "If it turns out that a small corner of that can be used for a while, then reclaimed - and as a result, a much larger area created through the purchase of more public lands - that might be a good deal. But we don't know enough to know that. And in the end, I think the voices of people down there ought to weigh heavily in any decision."

One concern, Crooks said, is whether explosives used in strip mining would have an adverse impact on Dogwood Lake or its water level. Another concern is reclamation after mining is completed.

"I believe many coal companies have done a good job in restoring mined areas in our state. There are some good areas," said Crooks, D-Washington. But once timber is cleared, it will take many years to restore Glendale, he said.

The DNR has scheduled an informational meeting for 6:30 p.m. Wednesday at the Montgomery Community Building in Ruritan Park in Montgomery, Ind., to discuss possible coal mining at Glendale and to field questions from the public.

"It could be a lively meeting," Crooks said.

Posted by Marcia Oddi on Saturday, October 07, 2006
Posted to Environment

Friday, October 06, 2006

Courts - Indiana wine shipping on Michigan Supreme Court docket

The AP reports on cases before the Michigan Supreme Court in the first week of its term, including:

WINE SALES: State law prevents liquor wholesalers from competing with wine wholesalers unless they already were doing so before 1996. An Indiana company says the law unconstitutionally blocks out-of-state companies from serving as wholesalers of both wine and liquor.

Posted by Marcia Oddi on Friday, October 06, 2006
Posted to Courts in general

Ind. Decisions - "Indiana Supreme Court tosses killer's life sentence"

The Indianapolis Star reports on yesterday's Supreme Court ruling in the case of Curtis Cooper v. State. Jon Murray writes:

The Indiana Supreme Court overturned the life sentence of a convicted killer Thursday, saying remarks by Marion County prosecutors denied him a fair trial.

In the 5-0 decision, the judges upheld Curtis N. Cooper's conviction for murder. In April 2002, Cooper kidnapped Selena Orum, 29, who lived on the Northwestside of Indianapolis, and shot her five times, killing her. He was on probation at the time for abusing Orum and resisting law enforcement.

A Marion Superior Court jury convicted Cooper in 2004 and recommended that Judge Robert Altice sentence Cooper to life without parole. But deputy prosecutors Jennifer Haley and Brian Poindexter hampered the jury's ability to decide objectively with "a drumbeat repetition assailing Cooper's character," Associate Justice Robert Rucker wrote.

David Wyser, the chief trial deputy prosecutor, said the office would press for the same sentence at a new hearing, focusing on Cooper's criminal history and the details of the crime.

Posted by Marcia Oddi on Friday, October 06, 2006
Posted to Ind. Sup.Ct. Decisions

Ind. Courts - More on Ind. Decisions - "Federal Court Rules Sex Offender Ordinance Unconstitutional"

Jon Murray of the Indianapolis Star today reports on yesterday's federal court decision (see earlier ILB entry here). Some quotes:

U.S. District Judge Richard L. Young issued a preliminary injunction, which bars the city from enforcing the law -- passed 25-2 by the City-County Council in May -- until the lawsuit is decided.

In his ruling, Young said the ACLU likely would prevail if the case continues.
"We respectfully disagree with where the court came down today," said Kobi Wright, the city's top attorney.

Now the city must decide whether to appeal Young's injunction to the 7th U.S. Circuit Court of Appeals in Chicago. That court has upheld other bans on sex offenders in parks, Wright said. But he wasn't sure the city would prevail because legal guidelines remain unclear -- and Indianapolis' ordinance is one of the country's most restrictive. * * *

Young found a series of factors troubling.

The exemption that allows offenders accompanied by an adult who is not a sex offender to visit these sites is too vague to enforce, Young wrote. He said the law also fails to make clear whether private playgrounds or facilities catering to children are affected.

If so, the law would apply to at least 330 parks, schools and other places.
"There are few, if any, areas in the City of Indianapolis that can be traveled through or into that will not result in the traveler passing within 1,000 feet (of one)," Young wrote. * * *

Constitutional violations cited by Young include punishing offenders a second time for their crimes and preventing some from voting at polling places inside schools or near playgrounds. * * *

"(The ordinance) basically bans people from Marion County, which is a problem," said Ken Falk, the ACLU of Indiana's legal director.

Greg Bowes was one of two council members to vote against the ban. The Democrat, an attorney, said the law's approach neglects the fact that children tend to be targeted by family members or people who know them.

"It was a very badly written law that had many unconstitutional infirmities," he said, "and I'm very happy to see it struck down."

The candidates for Marion County prosecutor backed the ban. Melina Kennedy, the Democratic candidate, said the council was right to pass the law. She lobbied for it, and her opponent, Prosecutor Carl Brizzi, testified in favor.

Council Republican leader Phil Borst voted for the ordinance, but on Thursday he repeated a concern he voiced in May: "I would hope we don't waste $500,000 on an appeal and lose."

[Council member Mary Moriarty Adams'] ordinance piggybacked on a new state law banning sex offenders from living within 1,000 feet of public parks, schools and youth program centers.

Posted by Marcia Oddi on Friday, October 06, 2006
Posted to Ind Fed D.Ct. Decisions

Ind. Decisions - Transfer list for week ending October 6, 2006

Here is the Indiana Supreme Court's transfer list for the week ending October 6, 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, October 06, 2006
Posted to Indiana Transfer Lists

Ind. Decisions - List of Court of Appeals NFP opinions issued for the week ending October 6, 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 October 6, 2006.

Posted by Marcia Oddi on Friday, October 06, 2006
Posted to NFP Lists

Ind. Decisions - Court of Appeals issues 3 today (and 7 NFP)

For publication opinions today (3):

In State Farm Mutual Automobile Company v. Kathie & Dean Noble, a 21-page opinion (including a 2-page partial dissent beginning on p. 19), Judge Baker writes:

Appellant-defendant State Farm Mutual Automobile Insurance Company (State Farm) appeals from: (1) the trial court’s order granting judgment on the evidence in favor of appellees-plaintiffs Kathie and Dean Noble as to the existence of underinsured motorist (UIM) coverage; (2) the jury’s damages award to the Nobles on the UIM claim; and (3) the jury’s verdict on the Nobles’ bad faith claim together with the award of damages thereon.

We find that a question of fact remains on the UIM claim such that judgment on the evidence was improper. Consequently, we reverse the judgment of the trial court, vacate the jury verdicts and damages awards on the Nobles’ breach of contract and bad faith claims, and remand with instructions to hold a trifurcated trial as explained herein. * * *

The judgment of the trial court is reversed, the jury verdicts and damages awards on the breach of contract and bad faith claims are vacated, and the cause is remanded with instructions to trifurcate the trial on the breach of contract and bad faith claims.

SULLIVAN, J., concurs.

MAY, J., concurs in part and dissents in part, with opinion. [which begins]

I agree a new trial is in order. However, the Nobles should not be precluded from retrying the issue of State Farm’s bad faith in handling their claim for underinsured benefits under the Underlying Policy.


Richard D. Meredith v. Connie S. Meredith
, is a 12-page Opinion on Rehearing. Originally the Court had concluded that "Father had not timely filed his appeal, and we therefore lacked jurisdiction. Accordingly, in Meredith v. Meredith, No. 02A03-0510-CV-520 (Ind. Ct. App. July 20, 2006), we dismissed Father’s appeal in a memorandum decision. * * * Father now petitions for rehearing, asserting that his appeal was timely filed and that the trial court’s notice and order to appear regarding a hearing on his motion to correct error was inadvertently omitted from his appendix. * * * Based on the additional information provided in Father’s supplemental appendix, we now conclude that Father’s appeal was timely filed. We therefore grant Father’s petition for rehearing and his motion to file supplemental appendix, vacate our original opinion, and reverse the trial court’s denial of Father’s motion to modify child support and remand." Judge Crone continues:
Father presents two separate arguments in asserting that the trial court erred in denying his petition. First, he contends that the trial court erred in finding that he was voluntarily unemployed. Second, Father challenges the trial court’s determination of his potential income. We address each argument in turn. * * *

Of course, because Father voluntarily left his employment and is still capable of working, some potential income must be imputed to him. The trial court’s findings provide two appropriate possibilities. The trial court found that Father was earning $19.30 per hour before his retirement, which equates to a gross weekly income of $772 per week. In addition, the trial court found that Father’s weekly pension is $576.50 per week and that he was capable of earning minimum wage equal to $210 per week, for a total of $786.50 a week. Either figure would serve as a proper basis for Father’s potential income because (1) both reflect the fact that Father is voluntarily unemployed and (2) neither dictates that Father’s career decisions be based strictly on the size of his paycheck. We also note that Father may have occasional opportunities to work at ICC. Appellant’s App. at 60-61. Income from this occasional work may be appropriately considered as irregular income. As such, the trial court may require that Father pay a fixed percentage of that irregular income as child support. See Child Supp. G. 3, cmt. 2(b). Accordingly, we reverse the trial court’s denial of Father’s motion to modify child support and remand for a determination of Father’s potential income for purposes of child support in a manner not inconsistent with this opinion.

In Starks Mechanical, Inc. v. New Albany-Floyd County Consolidated School Corporation, a 12-page opinion, Judge Baker writes:
Appellant-defendant Starks Mechanical, Inc., (Starks) appeals from the trial court’s order granting summary judgment in favor of appellee-plaintiff The New Albany-Floyd County Consolidated School Corporation (School) on the School’s declaratory judgment complaint against Starks. Specifically, Starks argues that the trial court misinterpreted the parties’ contract and that there is a genuine issue of material fact rendering summary judgment inappropriate.

Additionally, the School cross-appeals from the trial court’s order denying the School’s motion to strike Starks’s designated evidence in opposition to the School’s summary judgment motion. Finding that summary judgment in favor of the School was proper even if the trial court properly denied the motion to strike, we affirm the judgment of the trial court.

NFP civil opinions today (2):

Russell Spears v. Tursha Spears (NFP) - "Russell B. Spears (“Father”), pro se, appeals the trial court’s custody order. We affirm."

Todd Richmond v. Erin Richmond n/k/a Erin Mager (NFP) - "Todd Richmond (“Husband”) appeals the trial court’s order holding him in contempt for his failure to comply with its custody, parenting time, child support, and property settlement order. We affirm."

NFP criminal opinions today (5) (link to cases):

Charles R. Achor v. State of Indiana (NFP)

Richard J. Johnson v. State of Indiana (NFP)

Timothy A. Childers v. State of Indiana (NFP)

Eric E. Fields v. State of Indiana (NFP)

Genah Michelle Simpson v. State of Indiana (NFP)

Posted by Marcia Oddi on Friday, October 06, 2006
Posted to Ind. App.Ct. Decisions

Thursday, October 05, 2006

Law - Determining the precedential value of "unpublished" opinions

Howard Bashman of How Appealing, in an entry from last evening, points to
an article by Scott E. Gant in the current issue of Boston College Law Review,
titled "Missing the Forest for a Tree: Unpublished Opinions and New Federal Rule of Appellate Procedure 32.1."

Bashman writes: "The article echoes a point that I too have advanced * * * namely, that determining whether a given opinion creates precedent is a decision best made in hindsight, rather than when an appellate opinion is issued," or, as he wrote in 2002, "Whether an opinion of an appellate court has or lacks precedential value should be a function of what the opinion contains rather than the label attached to it."

Here is a quote from the abstract to Gant's article:

This article argues the notion that judges can and should determine an opinion's precedential value at the time they issue it is based upon a flawed and outdated view of how the law develops. Whether an opinion has made "new law" or is otherwise significant is a judgment best made with the benefit of time, and with input from lawyers, litigants, and other judges.

Posted by Marcia Oddi on Thursday, October 05, 2006
Posted to Courts in general

Ind. Decisions - "Federal Court Rules Sex Offender Ordinance Unconstitutional"

WISH-TV is reporting:

U.S. District Court in Indianapolis has ruled an ordinance that banned sex offenders from coming near many sites where children are present is unconstitutional. This has been confirmed to 24-Hour News 8 by the Indiana Civil Liberties Union.

Six men convicted of sex offenses against children sued the city of Indianapolis to overturn the ordinance that bans them from being within one-thousand feet of parks, pools, playgrounds and other sites when children are present.

The six are represented by the American Civil Liberties Union of Indiana. They argued that the ordinance makes it virtually impossible for them to travel through Marion County without crossing into one of the forbidden areas, which are not marked.

For background, see this May 31, 2006 ILB entry and related links.

[More] Here is a copy of the 23-page ruling by Judge Richard L. Young, granting the plaintiffs' request for a preliminary injunction. The court finds that the ordinance is unconstitutionally vague and violates due process, that it violates both the double jeopardy and ex post facto clauses of the US Constitution, and that it violates the plaintiffs' voting rights.

Posted by Marcia Oddi on Thursday, October 05, 2006
Posted to Ind Fed D.Ct. Decisions

Ind. Courts - "Nappanee honors retiring judge"

Mandy McFarland of the Pilot Newsreports today:

NAPPANEE - At a retirement celebration at the Main Street Coffee House downtown, with friends, family and city officials gathered, Judge David Widmoyer bade farewell to his 27-year career as Nappanee city judge.

Widmoyer served as city judge until Sept. 1 of this year, when he decided it was time to hang up his judge's robe in favor of a more restful way of life.

The celebration took place at what is now known as the Main Street Coffee House, but was once the B & B Restaurant, which Widmoyer and his wife owned and operated for a number of years.

Those gathered cheered as State Representative Jacki Walorski, on behalf of Indiana Governor Mitch Daniels, declared Widmoyer Sagamore of the Wabash for his numerous contributions throughout his life and career. Sagamore of the Wabash is the highest award that the governor of the state of Indiana can bestow upon an individual.

“As far as anyone knows, he is the only one from Nappanee to ever receive it,” said Mayor Larry Thompson.

Thompson gave a brief speech highlighting some of the contributions that Widmoyer has made over the years and what those contributions have meant to Nappanee.

“You are the reason that our community is where we choose to live and raise our families,” he said to Widmoyer.

After the speeches had ended, Widmoyer had time to reflect on some of the highlights of his career.

“At the court we had many instances of changed lives,” he said. “That was gratifying.”

After a lifetime of service to Nappanee, Widmoyer looks forward to his retirement days.

“I want to have a nice footstool to put my feet on so I can relax,” he commented.

A 1948 graduate of Nappanee High School, Widmoyer went on to serve a number of influential roles. An ordained minister of the North Indiana Conference of the United Methodist Church, Widmoyer pastored in the United Methodist Church for forty years. His various positions within the town of Nappanee have included working as a member of the Common Council, the Board of Zoning, the City Plan Commission and the Board of Public Works and Safety, as well as president of Board of Parks and Recreation, the Nappanee Library Leasing Corporation and of the Wa-Nee Holding Corporation.

Posted by Marcia Oddi on Thursday, October 05, 2006
Posted to Indiana Courts

Ind. Decisions - Court of Appeals issues 1 today (and 7 NFP)

For publication opinions today (1):

In Dean A. Bunting v. State of Indiana, a 7-page opinion, Judge Bailey writes:

Case Summary. Appellant-Defendant Dean A. Bunting (“Bunting”) appeals his conviction for Operating While Intoxicated with a Prior Conviction, a Class D felony. We affirm.

Issues. Bunting presents two issues for review: I. Whether he was denied his rights under the United States Constitution and the Indiana Constitution to have a jury determine whether he had a prior conviction for Operating While Intoxicated; and II. Whether the admission of lay opinion testimony on Bunting’s intoxication and his refusal to take a portable breath test constituted fundamental error. * * *

In light of the foregoing, Bunting has not established that he was deprived of his right to a jury trial under either the United States Constitution or the Indiana Constitution. * * *

Bunting next claims that he was prejudiced by “the drumbeat repetition of evidence of negligible probative value” when several police officers were allowed to offer opinion testimony that Bunting was intoxicated on December 9, 2004, and also to testify that Bunting was uncooperative with proffered alcohol testing. * * *

Although the officers’ testimony was not favorable to Bunting, it was neither irrelevant nor unduly prejudicial. Bunting has established no error, much less fundamental error, in the admission of the officers’ testimony. Conclusion Bunting has not established that he was denied his right to a jury trial. Nor has he demonstrated fundamental error in the admission of evidence. [emphasis added by ILB]

NFP civil opinions today (3):

Daniel Stock, M.D. and Community Hospital of Indiana, Inc. v. Violet Huggins (NFP)

Guy Webb, d/b/a All Star Merchandise, et al v. Arizona Sport Shirts, Inc. (NFP)

Torm L. Howse v. Kelly J. (Hensley) Bramble (NFP)

In
Mary A. Sproull, et al v. Nelson J. Vogel, Jr., Martha B. Moo, and Barnes & Thornburg
(NFP) - a 13-page opinion, Judge Bailey begins by stating the issue as:

Whether the trial court erroneously granted partial summary judgment to Barnes & Thornburg upon finding it had no duty to the Non-Director Shareholders, because there exist genuine issues of material fact regarding whether: (a) Barnes & Thornburg assumed a contractual duty to the Non-Director Shareholders as third-party beneficiaries; and (b) Barnes & Thornburg assumed a duty to the Non-Director Shareholders pursuant to the Restatement (Third) of Law Governing Lawyers. * * *

Conclusion. Conclusion Barnes & Thornburg negated an element of the Non-Director Shareholders’ legal malpractice claim, more specifically, the element of duty. As there exists no genuine issue of material fact and Barnes & Thornburg is entitled to judgment as a matter of law, the trial court properly granted partial summary judgment against the Non-Director Shareholders.

NFP criminal opinions today (4) (link to cases):

B.J.P. v. State of Indiana (NFP) - see Evansville Courier& Press story here.

Jeramy Heavrin v. State of Indiana (NFP)

Ivory Q. Hill v. State of Indiana (NFP)

Jeffrey L. Ward v. State of Indiana (NFP)

Matter of S.P. v. State of Indiana (NFP)

Jerry Dishman v. State of Indiana (NFP)

Dwayne L. Bear v. State of Indiana (NFP)

Posted by Marcia Oddi on Thursday, October 05, 2006
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Supreme Court decides one today

In Curtis Cooper v. State, a 13-page, 5-0 opinion in a direct appeal from the Marion Superior Court, Justice Rucker writes:

A jury convicted Curtis Cooper of murdering Selena Orum and recommended a sentence of life without parole. The trial court followed the jury’s recommendation. In this direct appeal Cooper argues that the State engaged in prosecutorial misconduct requiring the reversal of his conviction and sentence. We affirm the conviction but remand for a new sentencing phase of trial. * * *

Unlike the guilt phase of trial where Cooper presented a highly untenable claim—self-defense in light of evidence that Selena was shot from behind—here the claim is much more plausible. Without the drumbeat repetition assailing Cooper’s character, the jury may very well have concluded that violating probation for resisting law enforcement is not so serious an aggravator as to outweigh the claim that Cooper had no prior history of criminal conduct and that a life sentence would pose a hardship on his three minor children. We are persuaded that the cumulative effect of the prosecutor’s remarks hampered the jury’s ability to decide dispassionately whether Cooper should receive a term of years rather than life without parole. He was thus denied a fair trial. We therefore vacate Cooper’s sentence and remand this cause for a new sentencing hearing. [emphasis added by ILB]

Posted by Marcia Oddi on Thursday, October 05, 2006
Posted to Ind. Sup.Ct. Decisions

Ind. Courts - Commission on Courts info sparse

Doug Masson of Masson's Blog had an entry yesterday on some recommendations of the Indiana Commission on Courts. Intrigued, the ILB looked at the legislature's Commission on Courts website.

The Commission was created by IC 33-23-10. Its duties are set out at IC 33-23-10-7.

Not a big deal, but in this era of "open government" I was a little taken aback. The Commission is meeting this afternoon. A check of the agenda, however, shows only that it is meeting this afternoon. The minutes of the first two meetings are available, but not the important handouts.

The minutes of the second (8/29/06) meeting end with:

The next person to testify was Mark Goodpaster, Senior Fiscal Analyst from the
Legislative Services Agency Office of Fiscal and Management Analysis. Mr. Goodpaster presented a report to Commission members comparing projected and actual collections of the Judicial Salaries Fee and Court Administration Fee (Handout #3).

Mr. Goodpaster stated that the revenues collected for these fees were roughly 50% lower than projected. He attributed this overestimation in part to collection and remittance procedures at the local level. He noted that clerks in some entities submitted the fee revenue for the second half of Fiscal Year (FY) 2006 after the posting date for the end of the fiscal year. He also said that revenue collections for the second half of FY 2006 were significantly greater than the first half of FY 2006.

Chairman Bray asked whether the fee revenue was sufficient to cover the costs of the salary increases of both existing court officers and new courts that were created in 2005 and 2006. Mr. Goodpaster responded that the fee revenues were not likely to cover these additional costs and some additional revenue would have to come out of the State General Fund.

Lillian Judson, Executive Director of the Indiana Supreme Court Division of State Court Administration, then distributed copies of the Indiana Trial Courts 2005 Weighted Caseload Report to Commission members (Handout #4).

The Handouts are not available from the Commission site, however. A footnote indicates [emphasis added]:
Exhibits and other materials referenced in these minutes can be inspected and copied in the Legislative Information Center in Room 230 of the State House in Indianapolis, Indiana. Requests for copies may be mailed to the Legislative Information Center, Legislative Services Agency, 200 West Washington Street, Indianapolis, IN 46204-2789. A fee of $0.15 per page and mailing costs will be charged for copies. These minutes are also available on the Internet at the General Assembly homepage. The URL address of the General Assembly homepage is http://www.in.gov/legislative/. No fee is charged for viewing, downloading, or printing minutes from the Internet.
I was able to find the Indiana Trial Courts 2005 Weighted Caseload Report on the Indiana Courts website.

Posted by Marcia Oddi on Thursday, October 05, 2006
Posted to Indiana Courts

Ind. Courts - "Justice delayed: Lightning zaps Steuben court"

"Justice delayed: Lightning zaps Steuben court" is the great headline to a story by Kara Lopp today in the Fort Wayne Journal Gazette. Some quotes:

ANGOLA – A lightning strike at the Steuben County Courthouse on Wednesday morning left most employees without working computers and recording equipment, stalling much of the building’s normal activity.

Employees, who described the lightning strike using words like “pop” and “bang,” said it occurred about 9 a.m., causing some computers to go dark and the building’s fire alarm to sound briefly.

Val Varner, an employee in the clerk’s office, was sitting at her desk by the front Courthouse windows when the lightning hit. But she didn’t stay there for long after being startled by the noise and bright flash of light.

“I got up and moved because you don’t know where it hit,” she said. * * *

Circuit Judge Allen Wheat’s court was using old recording equipment to continue with a jury trial beginning Wednesday afternoon.

Three hours after the strike, some computers in the building began working, while others lacked power or access to the Internet or software.

After talking over the phone through the steps needed to get her computer up and running late Wednesday morning, Clerk of Courts Diana Penick said the process was slow, but steady. The county’s automated phone system was also affected by the strike, Penick said, and employees couldn’t transfer calls within the building.

“It’s coming, we just have to be patient,” she said, as an employee in her office tested a printer.

Posted by Marcia Oddi on Thursday, October 05, 2006
Posted to Indiana Courts

Ind. Decisions - "Pastor’s jury-pool dismissal is upheld" [Updated]

Yesterday's Supreme Court decision in Marshall Highler v. State of Indiana is the subject of a comprehensive story today by Dionne Waugh in the Fort Wayne Journal Gazette:

The Indiana Supreme Court on Wednesday upheld a decision that an Allen County prosecutor did not violate a defendant’s rights by dismissing a potential juror because he was a pastor.

The decision also affirmed the state Court of Appeals ruling last year that extended the protections against race and gender discrimination in jury selection to religion.

The Supreme Court opinion addressed the issue of race and religion in jury selection and sought to clarify the appeals court ruling because it expects the issue to come up in the future.

The debate stemmed from a rape trial in Allen Superior Court in August 2004. During jury selection, Deputy Prosecutor Stacey Speith excused a pastor, who was the only black man in the jury pool, from service. The defendant, Marshall Highler, appealed his conviction on the basis that the pastor was dismissed because of his race.

In explaining that she was not excusing the man because of his race, Speith raised another question. At the time, she said, “I never take any pastors, ministers, reverends or priests on my jury panels just because they’re more apt for forgiveness.”

This was a key point in the appeals and Supreme Court rulings. The Supreme Court opinion said it violates a prospective juror’s rights to bar them from a jury because of race, gender or religious affiliation. But it’s a separate issue if the prospective juror’s religious beliefs prevent them from following the law, the court said.

Additionally, a potential juror can be dismissed based on occupation if the occupation may show a bias and is not an excuse, the opinion said.

The appeals court upheld the original decision, citing that Speith’s primary motivation for removing the pastor came from the pastor’s concerns written in his jury questionnaire about the criminal justice system.

The Supreme Court opinion said it agreed with the appeals court decision to uphold the original ruling because Speith’s justification for dismissing the pastor was his occupation. Generally, removing potential jurors because of their occupation is not unconstitutional, the court ruled.

In the end, the Supreme Court ruled that the defendant, Highler, lost his objection about removing such a prospective juror because he did not object to it at trial. Because Highler’s complaint was only about unconstitutional racial discrimination, not the religious or occupational issues, he failed to preserve such questions for appeal, the opinion said.

[Updated 10/6/06] See also this AP story.

Posted by Marcia Oddi on Thursday, October 05, 2006
Posted to Ind. Sup.Ct. Decisions

Wednesday, October 04, 2006

Law - More on: Night law classes may end at the University of Louisville

Updating yesterday's entry, today the Louisville Courier Journal has an editorial on the "Night school's value." Some quotes:

Closing the University of Louisville law school's part-time evening division has been proposed again. This alternative is revived by the faculty every decade or so.

It came up, for instance, in 1975. Advocates back then said that interest in the night school was flagging, and redirecting resources to the day division would improve quality.

Very similar arguments are being proposed three decades later, only this time, the law school itself -- renamed for Justice Louis D. Brandeis -- is a far different place.

In 1975, it faced the loss of accreditation and was placed on probation. Its buildings were small, shabby and ill-suited for storage, much less training future members of the bar.

Despite all that, the faculty had the wisdom to reject the idea, realizing that U of L's night school offered a kind of opportunity that a day-only program could not.

Non-traditional students had a place where they could launch a new and better career. Young parents, full-time professionals in other fields, veterans and others found the night program suited their needs.

And in a city the size of Louisville, such a program made all kinds of sense for civic and educational reasons.

It still does. * * *

With three law schools, Kentucky can ill afford to eliminate the very sort of program that provides special opportunities for students who might otherwise be unable to attend.

The fact is that U of L has nothing to be ashamed of in its night school alumni, who include leading members of the bar, the bench, business and public life.

For many of them, day studies would not have been an option.

The night division should be exploited as an asset, not abandoned as an unwanted and unsupportable stepchild.

Posted by Marcia Oddi on Wednesday, October 04, 2006
Posted to General Law Related

Ind. Decisions - Court of Appeals issues 1 today (and 6 NFP)

For publication opinions today (1):

In John H. Matzat v. Brenda K. Matzat, a 6-page opinion, Judge Kirsch writes:

John H. Matzat (“John”) appeals the trial court’s award of incapacity maintenance to Brenda K. Matzat (“Brenda”). * * *

From the evidence presented, the trial court could only determine that Brenda suffered a back problem of unknown origin. It could not determine that she was physically incapacitated such that her ability to support herself was materially affected. Accordingly, we reverse the award of incapacity maintenance. Reversed.

NFP civil opinions today (4):

Gail Brock v. Edward German & Melissa German (NFP)

Randall G. Amstutz and Karyl J. Amstutz v. Doris M. Evertts and Joyce Evertts (Muzzy) Fleming (NFP)

Albert L. Tate v. Coy Cherise Tate (NFP)

Phillip & Tina Doty v. Jennings County Division of Family/Child (NFP)

NFP criminal opinions today (2) (link to cases):

Mary Cox v. State of Indiana (NFP)

Bradley Tyler Sanders v. State of Indiana (NFP)

Posted by Marcia Oddi on Wednesday, October 04, 2006
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Supreme Court decides one today

In Marshall Highler v. State of Indiana, an 8-page, 5-0 opinion, Justice Boehm writes:

We hold that the use of a peremptory challenge to strike a juror because of the juror’s race, gender or religious affiliation violates the juror’s right to equal protection of the laws. The juror’s affiliation is to be distinguished from religious beliefs that prevent the juror from follow-ing the law. The juror’s occupation, to the extent it may indicate a predisposition and is not a pretext, is a permissible ground for a peremptory strike. * * *

We agree with the Supreme Court of Missouri’s caution that “trial courts should . . . consider strikes based on occupation carefully, assessing them for pretext by looking at whether the occupation and the claimed traits relate to the particular case or juror, [and] whether similarly situated jurors are treated differently.” State v. Edwards, 116 S.W.3d 511, 528 (Mo. 2003). The trial court’s conclusion that the prosecutor’s reasons were not pretextual is essentially a finding of fact that turns substantially on credibility. It is therefore accorded great deference. Batson, 476 U.S. at 98 n.21. We cannot say it was clearly erroneous. See M-cCants, 686 N.E.2d at 1284; Kent v. State, 675 N.E.2d 332, 340 (Ind. 1996). * * *

Although we agree with the Court of Appeals that strikes based on religious affiliation are impermissible, we believe that Judge Robb was correct in upholding the trial court’s ruling because the State’s justification for striking Juror 92 was not his religious affiliation, but his oc-cupation. Id. at 99 (Robb, J., concurring). As a general proposition, striking a juror because of the juror’s occupation is not unconstitutional. * * * Specifically, peremptorily striking religious leaders from juries because they may be sympathetic to defendants generally has been upheld as constitutional. * * *

Finally, we have addressed the foregoing issues to give guidance to trial courts because the Court of Appeals has addressed them and we believe they are likely to recur. However, Highler’s challenge to the peremptory strike, whether characterized as based on occupation or religion, was waived because he did not object on either ground in the trial court. Highler’s ob-jection to the State’s strike of Juror 92 was based solely on a claim of unconstitutional racial dis-crimination. By failing to identify his objection to the peremptory strike on religious or occupational grounds, Highler failed to preserve these questions for appeal.

Highler raises two other issues. First, he argues that he was denied a trial by a jury of his peers in violation of the Sixth and Fourteenth Amendments to the United States Constitution and in violation of Indiana Code section 33-28-4-3 (2004) because there was only one African American on the panel of 47 and according to the 2000 U.S. census 17.4 percent of Allen County was African American. The Court of Appeals correctly held that a statistical anomaly in a single venire presents no issue. Highler, 834 N.E.2d at 189 (citing Azania v. State, 778 N.E.2d 1253, 1257 (Ind. 2002)).

Highler also contends that a 9-1-1 tape was erroneously admitted into evidence because its prejudicial effect outweighed any relevance. Highler made no claim that the tape’s admission infringed his confrontation rights under Crawford v. Washington, 541 U.S. 36 (2004). See also Davis v. Washington, 126 S. Ct. 2266, 2269 (2006) (statements by an alleged victim to a 9-1-1 operator that name her attacker were not “testimonial” because her “primary purpose was to enable police assistance to meet an ongoing emergency”). We summarily affirm the holding of the Court of Appeals on these issues. Indiana Appellate Rule 58(A)(2).

Posted by Marcia Oddi on Wednesday, October 04, 2006
Posted to Ind. Sup.Ct. Decisions

Ind. Courts - "Security Beefs Up at Tippecanoe County Courthouse"

Channel 18 reports:

New security will be added to the Tippecanoe County Courthouse. The County is receiving more than $17,000 from the US Department of Homeland Security to pay for the security measures.

The Tippecanoe County Emergency Management Agency said police and courthouse maintenance decided what security upgrades were needed. A metal detector will be purchased, along with a window alarm for the 1st floor, and 10 new security cameras to be placed throughout the building.

An $11,000 Homeland Security grant will pay for 10 new laptop computers for the fire departments.

Posted by Marcia Oddi on Wednesday, October 04, 2006
Posted to Indiana Courts

Ind. Courts - Two local court stories today

"Judge denies suspect’s bid to visit Mexico" is the headline to an AP story:

VALPARAISO – A teenage boy who attacked his classmates with a machete and a tree saw has lost his bid to travel to Mexico with his grandparents and other relatives.

Porter Superior Court Judge Roger Bradford rejected the travel request Monday by 16-year-old James Lewerke, whose trial was scheduled to start Jan. 8, to visit Puerto Vallarta next month.

“I didn’t feel comfortable letting him leave the country, not that I expect anything to happen,” Bradford said.

Lewerke was granted permission to live with his grandparents in Iowa after the then 15-year-old Valparaiso High School student was charged with attacking and injuring several fellow students with a machete and tree saw on Nov. 24, 2004.

All of the students lived, but they suffered physical scars and emotional trauma.

Lewerke has pleaded not guilty to six felony charges of aggravated battery and one felony count of criminal recklessness. His attorneys claim he was insane at the time.

He had wanted to travel with his family in November to Mexico with his grandparents and other relatives who work for the same company to attend a business meeting.

The teen based his request on the fact that it was the first time he had been charged with a crime and has never missed a court proceeding.

From another AP story:
WABASH, Ind. -- A judge ordered that a man who has failed to pay child support must spend his days sitting in a county building's lobby under a sign reading "I don't support my kids."

Wabash Circuit Judge Robert McCallen III said he imposed the sentence against Michael Booth, 33, of Wabash not as a special punishment, but to avoid adding to the overcrowding of the county jail.

The judge cited Booth for contempt of court, but said he would release Booth from sitting under the sign once he begins working at a job or shows he is making a sufficient attempt to find one.

Posted by Marcia Oddi on Wednesday, October 04, 2006
Posted to Indiana Courts

Ind. Decisions - "Thomas sentence cut to 90 years"

Bryan Corbin of the Evansville Courier& Press writes today about Monday's Court of Appeals not-for-profit opinion in the case of Nicholas D. Thomas v. State of Indiana. Some quotes:

A key figure in several recent high-profile crimes in Evansville was sentenced to one of the longest prison terms attorneys could remember for a nonhomicide crime: 140 years.

Now the Indiana Court of Appeals has reduced Nicholas Dale Thomas' sentence, although he still would be his 70s by the time he is eligible for parole.

In a 14-page decision Monday, the appeals court ordered Thomas' 140-year prison term reduced to 90 years and sent the case back to Vanderburgh Superior Court for resentencing. * * *

The appeals court did not reverse Thomas' convictions. But the three-judge panel found "irregularity" in the way the sentence was calculated, the decision said.

Bowers, the trial court judge, listed six aggravating factors to justify lengthy, consecutive sentences for Thomas. The appeals court agreed with two of them: Thomas' lengthy criminal record (six prior felony convictions and seven misdemeanors) and Thomas committing the hotel invasion while out on parole.

In recalculating the sentence, the appeals court affirmed the 80 years he got for robbing and injuring Clark and for being a habitual offender. But instead of three consecutive 20-year sentences for robbing the other victims, Thomas should have received three concurrent 10-year terms, the decision said. That reduced his sentence to 90 years.

"I believe 90 is excessive, too, but that's our system," [Thomas' defense attorney, William Gooden] said. He didn't know yet if he would appeal the sentence to the Indiana Supreme Court. A message seeking comment was left for Vanderburgh County Prosecutor Stan Levco.

Posted by Marcia Oddi on Wednesday, October 04, 2006
Posted to Ind. App.Ct. Decisions

Ind. Courts - Fix protective orders, writes Fort Wayne newspaper

"Fix protective orders" is the headline to an editorial today in the Fort Wayne Journal Gazette. Some quotes:

There is a serious and unacceptable logjam in the system Allen County uses to process protective orders. The bureaucratic snarl means that some victims of domestic violence who think they have an enforceable protective order against their abuser don’t.

Local court officials, law-enforcement officers and advocates for domestic violence victims need to work together to ensure that a protective order helps officers protect victims rather than being little more than a worthless piece of paper. Making the forms easier to use and the information systems that alert law enforcement that a protective order exists more flexible would help.

The problem begins when victims completing the complicated forms necessary for a protective order don’t give information required to enter the order into state and national law-enforcement information systems. Both the Indiana Data and Communication System (IDACS) and the National Crime Information System (NCIS) require specific information – like the suspect’s date of birth or Social Security number – before the order can be entered into the system.

If the information is not included, the order isn’t entered into those databases. That hampers the sheriff department’s ability to serve the suspected abuser with the protective order. It also makes access to information on that protective order much more difficult for law enforcement officers. * * *

Allen County court clerks need to do a better job of ensuring the paperwork is completed correctly. Clerks are not allowed to give legal advice to victims filling out the paperwork, but nothing keeps them from pointing out missing information or other obvious problems with the form. * * *

Many Indiana communities are having similar problems, said Laura Berry Berman, executive director of the Indiana Coalition Against Domestic Violence. Berman says that a $259,000 federal grant from the Department of Justice will speed the processing of protective orders and improve the partnership between the state and courts by creating a statewide Protective Order Registry. But, “it really does not solve the immediate problem in Allen County, where the clerks are not being helpful,” she said.

Therese Brown, Allen County clerk of the courts, says there are limits to what the clerks can do. “The court does not look kindly on us practicing law,” Brown said. “I can process the paperwork, I can’t judge that paperwork. You have to walk that fine line. You don’t want to coach someone about what to put on those forms. I can’t cross that line. It’s a little more complex than to say clerks are not being compliant and compassionate and doing what is needed.” * * *

The problem is not exclusively caused by court clerks. Making the protective order forms more user-friendly would help. And adjusting the technology of the databases to allow for more flexibility could improve the system. Victims also need to know that they need to provide as much information as possible when they file a protective order. And they should not be reluctant to seek the assistance available through local organizations like the YWCA or the Indiana Coalition Against Domestic Violence.

This press release was issued yesterday from the Indiana Courts office:
Governor Mitch Daniels and Indiana Supreme Court Chief Justice Randall T. Shepard announced today that the state has received a $259,000 grant from the federal Bureau of Justice Statistics to create a statewide Protection Order Registry.

“Until now, a judge’s protection order might not get into the hands of local law enforcement for days – a situation that is unacceptable and too dangerous to continue. By creating this link between the courts and law enforcement we can better protect those we are here to serve,” said Chief Justice Shepard.

The project funding was awarded through the Indiana Criminal Justice Institute and was also supported by domestic violence advocacy groups and local and state law enforcement. * * *

Currently, if you want to know how many Protection Orders are in force in Indiana, you have to contact all 92 counties individually.

The new Indiana Protection Order registry will link Indiana courts with the existing Indiana State Police data system to ensure all protection orders are entered and available immediately. This also means data will be available across county lines.

“Law enforcement officers can be most efficient and effective when they have complete, and timely, information. This registry will add an important tool to assist them in their efforts to protect those at-risk for domestic violence,” said Indiana State Police Superintendent Dr. Paul E. Whitesell.

When the order goes into the system, a copy will be faxed to local law enforcement officers where the parties are located. This will ensure that all law enforcement agencies are immediately notified when a protection order or no contact order is issued or revoked.

An additional benefit is that because the order is checked for completeness and accuracy when it goes into the new system, it will also be registered with NCIC – the FBI’s National Crime Information Center, offering protection across state lines as well as within Indiana.

According to today's editorial, it is the entry point that poses the biggest problems.

Posted by Marcia Oddi on Wednesday, October 04, 2006
Posted to Indiana Courts

Ind. Decisions - More on: "Court clouds schools' plans"

Yesterday the ILB quoted a Fort Wayne Journal Gazette story that reported:

The Northwest Allen County Schools board voted Monday to ask the Indiana Supreme Court to examine a decision by a lower court that said the current system of dueling petition drives to determine construction projects is unconstitutional.
Today the Journal Gazette has an editorial on the matter, titled "A futile legal fight." Some quotes:
Northwest Allen County Schools board members voted Tuesday to defend an indefensible process and committed the school district to participate in a legal fight it has little chance of winning.

The board voted to join another Indiana school district in asking the Indiana Supreme Court to hear an appeal to a ruling that declared unconstitutional the “dueling petitions” procedure to determine whether contested public works bond issues should proceed. Current law allows supporters and opponents of a proposed major government bond issue to collect the signatures of owners of property within the affected district. If proponents gain the most valid signatures, the project proceeds; if opponents win, the project is dead for at least a year.

The Indiana Court of Appeals rightly ruled that such a procedure is essentially a referendum that unconstitutionally excludes renters and other non-property owners. Indiana Attorney General Steve Carter, who is responsible for representing the state and defending current state law, will not appeal the decision, an indication he agrees that it was correct. “The upcoming legislative session will provide an opportunity for lawmakers to address the constitutional weakness of the statute,” Carter said in a news release.

If the man legally responsible for defending state law essentially says it cannot be defended, why does the NACS board continue to defend it? * * *

By omitting any petition drives that began before the legislature adjourns next spring, the ruling clearly does not apply to those now under way, including the one concerning expanding NACS’ Carroll High School.

Yes, a renter upset with the outcome could sue NACS on the same grounds, but the school system would be better off waiting to see whether such a legal battle even begins than to try to persuade the state Supreme Court to uphold a process that is clearly wrong.

Posted by Marcia Oddi on Wednesday, October 04, 2006
Posted to Ind. App.Ct. Decisions

Ind. Gov't. - "IPS Board member says he will resign over felony"

Andy Garnmill of the Indianapolis Star reports today:

An Indianapolis Public School Board member said Tuesday that he would resign after The Indianapolis Star raised questions about his 2005 drunken-driving conviction, a felony that should have disqualified him from office.

Longtime board member W. Donald Payton pleaded guilty to a felony charge of drunken driving in November, five months after he was arrested on the Eastside after making a U-turn and hitting a car. He was found to have a blood-alcohol reading three times the level at which a driver is considered drunk in Indiana. It was his third conviction in 11 years.

Indiana law bars felons from holding office and requires them to step down once convicted. Failing to do so carries no criminal penalties, and it is up to the official to report the conviction.

Payton said he did not know the law required him to step down.

"I'm going to resign from the board now that I'm aware of it," Payton said by telephone Tuesday. "I'm going to do the right thing. I take full ownership."
He thought the conviction would not be a problem, he said, because the felony eventually would be wiped from his record if he meets all the requirements of his probation. * * *

Once Payton resigns this week, the School Board will accept applications for a replacement and interview candidates to fill out the remaining two years of his term, said President Clarke C. Campbell.

Campbell, who also is a Marion County deputy prosecutor, said he learned about the conviction when The Star contacted him Tuesday. He then called Payton and explained the law to him.

"From the board's perspective, I'm shocked and disappointed," Campbell said. "I feel on the board's behalf that we should have been advised by Mr. Payton on this issue."

See this ILB entry from Jan. 14, 2005, which discusses the "person who is a convicted felon prior to become a candidate for elected office or assuming office and a person who becomes a convicted felon during his term of office."

Posted by Marcia Oddi on Wednesday, October 04, 2006
Posted to Indiana Government | Indiana Law

Ind. Courts - "Kokomo courthouse gets metal detectors 2 decades after bombing" [Updated]

An AP story reports today:

KOKOMO, Ind. - The Howard County Courthouse is getting metal detectors nearly 20 years after a man smuggled a bomb inside and detonated it, killing himself and injuring 15 others.

The county will receive $29,295 grant from the Indiana Department of Homeland Security to buy an X-ray machine, tables and metal detector to increase security at the courthouse, Howard Circuit Court Judge Lynn Murray said Tuesday.

The equipment will be placed at public entrance at the east doorway of the downtown courthouse.

"We want the equipment used during high-profile trials," Murray said. "It is mainly a deterrent. People coming into the courthouse will be screened for weapons."

In 1987, Robert David Gray, who was being tried on drug charges, smuggled a briefcase loaded with four pipe bombs into the courthouse about 40 miles north of Indianapolis.

Then-Sheriff John D. Beatty steered Gray into his office to examine the contents of the briefcase, and the explosives went off, killing Gray.

Beatty was standing about five feet away from Gray and was injured when the bomb exploded. He died in 1999.

[Updated] Here is a story from today's Kokomo Tribune, by Ken de la Bastride. Some quotes:
Sometime in the near future, people coming to the Howard County courthouse will have their bags and packages scanned and will be required to walk through a metal detector.

The county learned in August that it was eligible for up to a $50,000 grant from the Indiana Department of Homeland Security. The catch was that the funds had to be spent by Oct. 31.

Howard County Circuit Court Judge Lynn Murray said Tuesday that the county has been awarded a grant.

The county will receive $29,295 to purchase an X-ray machine, tables and metal detector to increase security at the courthouse.

“We will have the purchase completed by the end of the month and the equipment will be installed shortly thereafter,” Murray said. * * *

The county also received approval of $17,000 in Homeland Security funds for the purchase of computers for the Howard County Emergency Management Agency, according to director Larry Smith.

Posted by Marcia Oddi on Wednesday, October 04, 2006
Posted to Indiana Courts

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

Judge Ridlen has ruled again, according to this story by Joe Ulery and Jeff Smith on MIX 102:

LOGANSPORT - Leo Burns' name is still on the Cass County ballot for Circuit Court Judge. Judge Julian Ridlen has denied a request for a stay that would have removed Burns' name from the ballot.

Burns says he looks forward to getting on with the campaign. Attorney Elizabeth Carlson, representing the state election division, said in court the state wants to expedite the appeal process.

Burns' battle to run for judge tracks back to a candidacy filing form that was filed in the wrong location by Cass County Democratic Chairman Matt Meagher. The clerical error led to the Indiana Election Division's not certifying Burns as a candidate.

The Democrat responded by filing a lawsuit in Cass County Circuit Court that would allow his candidacy. Judge Ridlen ruled on the suit which allowed Burns' name to appear on the ballot as a candidate, creating a race between Burns and Republican Sheryl Pherson.

Here is a list of earlier ILB on Burns' race.

Posted by Marcia Oddi on Wednesday, October 04, 2006
Posted to Indiana Courts

Tuesday, October 03, 2006

Ind. Courts - Still more on: Supreme Court permits filming of juvenile court proceedings

Updating this ILB entry from Feb. 11, 2006, a NY Times story today headed "Unsimple Lives on an MTV Reality Show," concludes with the status of the MTV series filmed inside a Lake County courtroom:

An intense look at the seemingly mundane world of juvenile detention marks the debut of another series, titled “Juvies” and scheduled to begin later this fall. Set in the juvenile division of Lake County, Ind., Superior Court, the series follows roughly 18 juvenile defendants through their detention and court hearings.

“These shows aren’t about the crimes,” Mr. Sirulnick said. “They are really psychological studies, about who has support systems and who doesn’t.”

While the juvenile court sees cases ranging from murder to shoplifting a pack of gum, the producers focused on issues that are more typical of what the average teenager might face, like underage drinking and its potential criminal effects.

In the premiere episode, Sarah, a 16-year-old runaway, is brought into the Lake County juvenile detention facility after being arrested in Texas. A look of shock settles over her face as she is first shackled to a desk during her admission, then later deloused and issued a set of prison-issue clothes. When her mother tries to sneak a note in to her by stuffing it in the toe of new sneakers that she sends to Sarah, it is confiscated without Sarah’s being able to read it, a development that almost pushes her past the breaking point.

Mary Beth Bonaventura, the senior judge for the juvenile division of Lake County Superior Court, said she agreed to let MTV pursue the idea after being assured that it wouldn’t be just another reality show.

“I didn’t want to trivialize what we do,” Judge Bonaventura said. “But I thought it was important to let kids see what actually happens when you make certain choices in life. We want them to take away something about the seriousness of being locked up. At the end of it, hopefully they won’t want to do something that will have them end up here.”

According to the series' producer, Karen Grau, who the ILB talked with this morning, the series will be shown on MTV this winter, beginning perhaps in January.

Judge Bonaventura, as readers will recall, received the Indiana Judges Association Commendation for Excellence in Public Information and Education Awards last month in South Bend for her outstanding efforts to educate the public about the working of the state's judicial system, for, as the press release stated at the time:

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.”
Two awards are given by the judges each year, to an Indiana jurist and to a member of the news media. Ms. Grau won the Excellence in Pubic Information and Education Award in 2000 for her earlier documentary, "In The Child's Best Interest." (The ILB was honored to receive the award this year.)

Posted by Marcia Oddi on Tuesday, October 03, 2006
Posted to Indiana Courts

Law - "Courts are asked to crack down on bloggers, websites"

USA Today has a front-page story by Laura Parker headlined: "Courts are asked to crack down on bloggers, websites: Those attacked online are filing libel lawsuits." The story begins:

Rafe Banks, a lawyer in Georgia, got involved in a nasty dispute with a client over how to defend him on a drunken-driving charge. The client, David Milum, fired Banks and demanded that the lawyer refund a $3,000 fee. Banks refused.

Milum eventually was acquitted. Ordinarily, that might have been the last Banks ever heard about his former client. But then Milum started a blog.

In May 2004, Banks was stunned to learn that Milum's blog was accusing the lawyer of bribing judges on behalf of drug dealers. At the end of one posting, Milum wrote, “Rafe, don't you wish you had given back my $3,000 retainer?”

Banks, saying the postings were false, sued Milum. And last January, Milum became the first blogger in the USA to lose a libel suit, according to the Media Law Resource Center in New York, which tracks litigation involving bloggers. Milum was ordered to pay Banks $50,000.

The case reflected how blogs — short for Web logs, the burgeoning, freewheeling Internet forums that give people the power to instantly disseminate messages worldwide — increasingly are being targeted by those who feel harmed by blog attacks. In the past two years, more than 50 lawsuits stemming from postings on blogs and website message boards have been filed across the nation. The suits have spawned a debate over how the “blogosphere” and its revolutionary impact on speech and publishing might change libel law.

Legal analysts say the lawsuits are challenging a mind-set that has long surrounded blogging: that most bloggers essentially are “judgment-proof” because they — unlike traditional media such as newspapers, magazines and television outlets — often are ordinary citizens who don't have a lot of money. Recent lawsuits by Banks and others who say they have had their reputations harmed or their privacy violated have been aimed not just at cash awards but also at silencing their critics. * * *

Robert Cox, founder and president of the Media Bloggers Association, which has 1,000 members, says the recent wave of lawsuits means that bloggers should bone up on libel law. “It hasn't happened yet, but soon, there will be a blogger who is successfully sued and who loses his home,” he says. “That will be the shot heard round the blogosphere.”

At its best, the blogosphere represents the ultimate in free speech by giving voice to millions. It is the Internet's version of Speaker's Corner in London's Hyde Park, a global coffeehouse where ideas are debated and exchanged.

The blogosphere also is the Internet's Wild West, a rapidly expanding frontier town with no sheriff. It's a place where both truth and “truthiness” thrive, to use the satirical word coined by comedian Stephen Colbert as a jab at politicians for whom facts don't matter.

Nearly two blogs are created every second, according to Technorati, a San Francisco firm that tracks more than 53 million blogs.
[emphasis added by ILB] Besides forming online communities in which people share ideas, news and gossip and debate issues of the day, blogs empower character assassins and mischief makers.

Small disputes now can lead to huge embarrassment, thanks to websites such as bitterwaitress.com, which purports to identify restaurant patrons who leave miserly tips. DontDateHimGirl.com includes postings that have identified men as pedophiles, rapists and diseased, without verification the postings are true. * * *

A key principle that courts use in determining whether someone has been libeled is what damage the offending article did to that person's reputation in his or her community.

Susan Crawford, a professor at Cardozo Law School in New York who specializes in media and Internet issues, says the ease with which false postings can be corrected instantly, among other things, will force judges to reconsider how to measure the damage that is done to a plaintiff's reputation.

“Libel law depends on having a reputation in a particular town that's damaged,” she says. “Do you have an online reputation? What's your community that hears about the damage to your online reputation? Who should be sued? The original poster? Or someone like the Wonkette, for making something really famous? The causes of action won't go away. But judges will be skeptical that a single, four-line (posting in a) blog has actually damaged anyone.”

Greg Herbert, an Orlando lawyer who represented Dutson, disagrees. The principles of libel law aren't going to change, he says. However, some judges “might not think a blogger is entitled to the same sort of free speech protection others are. A lot of judges still don't know what a blog is, and they think the Internet is a dark and nefarious place where all kinds of evil deeds occur.”

There is a lot more to the article.

Another story today
, this one from the Everett, Washington Herald Net, reports that "Cantwell adviser's file briefly unsealed: The divorce papers were resealed, but not until after a blogger revealed the details." "Cantwell" is U.S. Senator from the State of Washington, and Indianapolis native, Maria Cantwell.

Posted by Marcia Oddi on Tuesday, October 03, 2006
Posted to General Law Related

Ind. Decisions - Court of Appeals issues 0 today (and 3 NFP)

[For the past few days, I've been "waiting for the other case to drop" before I post the day's Court of Appeals opinions, as the Court's case links are sometimes added to once or twice during the day, and it is difficult for me to quickly determine what new cases have been added to the list. That explains why you aren't seeing this entry at 9:30 a.m.]

For publication opinions today (0):

NFP civil opinions today (1):

In Morris Barbee v. Charles and Kay Stone (NFP), an 11-page opinion, Judge Bailey writes:

Morris Barbee (“Barbee”) brings this appeal challenging the trial court’s conclusion that Charles and Kay Stone’s (“the Stones”) fence was appropriately placed on their own property and that they were entitled to attorney’s fees because Barbee frivolously filed an action for fence removal and damages. We affirm in part and reverse in part.

Issues. Barbee presents two issues for review, which we restate as: I. Whether the judgment for the Stones is contrary to law where three land surveys showed the Stones’ fence to be on their property and two surveys showed it to be on Barbee’s property; and II. Whether the trial court properly awarded attorney fees on the basis that Barbee filed a frivolous lawsuit. * * *

Our Supreme Court cautioned that application of the statutory authorization for recovery of attorney’s fees “must leave breathing room for zealous advocacy and access to the courts to vindicate rights.” Mitchell v. Mitchell, 695 N.E.2d 920, 925 (Ind. 1998) (decided under former codification of statute). The Court continued, “Courts must be sensitive to these considerations and view claim of ‘frivolous, unreasonable, or groundless’ claims or defenses with suspicion.” Id. Additionally, commencing an action will less often be frivolous because investigation through pretrial discovery may be necessary to evaluate the claims. Garza v. Lorch, 705 N.E.2d 468, 473 (Ind. Ct. App. 1998).

In this case, there was a question about the accuracy of the 1994 Beeg Survey. Subsequent surveys both supported and conflicted with Barbee’s position. Indeed, the court specifically found that the Turning Point survey showed an encroachment on Barbee’s property. Barbee’s counsel argued that the trial court should credit that survey and find for Barbee.

Considering all the circumstances in light of guidance by our Supreme Court, we cannot agree that the suit is frivolous. A good faith and rational argument was made to support Barbee’s claim. Thus, we hold that the trial court erred in awarding attorney fees to Stone.

Conclusion We affirm the trial court’s judgment regarding the location of the fence, but we reverse the trial court’s award of attorney fees to the Stones.

NFP criminal opinions today (2) (link to cases):

Dewayne Emberton v. State of Indiana (NFP)

Bryan O'Neal v. State of Indiana (NFP)

Posted by Marcia Oddi on Tuesday, October 03, 2006
Posted to Ind. App.Ct. Decisions

Ind. Courts - More on: I-69 extension opponents file suit in Indiana federal court

Bryan Corbin of the Evansville Courier& Press writes today on the suit filed yesterday in federal district court " to block design and planning of the Evansville-to-Indianapolis leg of the highway."

Filed Monday in U.S. District Court in Indianapolis, the suit asks a federal judge to declare the Federal Highway Administration's approval of the I-69 corridor violated the National Environmental Policy Act.

It seeks an injunction stopping the $2 billion I-69 project until the defendants "objectively evaluate" the alternative route, U.S. 41 to I-70.

See also this ILB entry from yesterday.

Posted by Marcia Oddi on Tuesday, October 03, 2006
Posted to Ind Fed D.Ct. Decisions

Ind. Decisions - "Court clouds schools' plans"

Two stories today about the Court of Appeals ruling in in Bruce Jones v. Martha Womacks that "The petitioning process used to determine local support for schools to borrow money through bonds is unconstitutional because it only includes property owners." (earlier quote from AP story)

"Court clouds schools' plans" is the headline from a story by Dick Kaukas in the Louisville Courier Journal. Some quotes:

Two Southern Indiana school systems are moving ahead with construction plans, despite confusion created by a recent court ruling that the current legal process for public challenges to such projects is unconstitutional.

Greater Clark County school board members have been talking about building a new Charlestown High and renovating Jeffersonville and New Washington high schools, work that could require a bond issue of $150 million.

Neither school board has approved any work yet. But administrators in both districts said they hope a decision will be made in the next few months.

If bond issues are approved, state law allows property owners living in the school district to mount a "remonstrance" campaign to reject the projects.

But in an August ruling, the state Court of Appeals said the remonstrance law is unconstitutional because only property owners are allowed to petition to challenge the bond issue and only property owners may then sign petitions in favor of or opposed to the project. The side with the most names prevails.

The court ruled that there had been no showing of a "compelling state interest" in limiting participation to property owners. It also said the next session of the state legislature should address the problem and redraft the law.

With that in mind, the court decided to delay the effective date of the ruling until the next legislative session ends in April 2007.

If the General Assembly fails to act by then, the ruling said, "our holding will then be in effect," and every remonstrance process then under way "will be subject to the holdings of this case."

The decision is final because Attorney General Steve Carter, who defended the state law before the Court of Appeals, has said he will not pursue the matter further. Carter said he will work with the legislature "to address the constitutional weaknesses of the statute."

At this point, the Greater Clark and New Albany-Floyd County school boards could vote on the proposed bond issues before the legislature convenes in January. If that happens, any remonstrance could be decided before the session is over.

Lisa Tanselle, staff attorney for the Indiana School Boards Association, said her office has been advising school systems to go ahead with construction plans, subject to the possibility of a challenge under the old law.

She acknowledged that if a remonstrance challenge is defeated by those who favor the project, the opponents might sue, contending that the process under which they lost has prospectively been ruled unconstitutional.

"But we have to operate under something" until the legislature acts, Tanselle said.

Karen Soderlund of the Fort Wayne Journal Gazette writes today:
The Northwest Allen County Schools board voted Monday to ask the Indiana Supreme Court to examine a decision by a lower court that said the current system of dueling petition drives to determine construction projects is unconstitutional.

The Indiana Court of Appeals ruled this summer that the state’s current remonstrance system is unconstitutional because it does not allow people who rent homes or apartments in a school district to participate in the process. Currently, only property owners are allowed to sign petitions.

“We are of the opinion that those folks who pay property taxes are the ones more impacted by a construction project from local school corporations, and they’re the ones that should make the decision whether they support the property tax increase or do not support the property tax increase,” Superintendent Steve Yager said.

People can file a remonstrance petition with the state when they are opposed to a construction project a school district is planning. After the opposing side gathers 100 signatures from property owners, a dueling petition drive starts and whichever side gathers more valid signatures wins.

District officials are in the midst of a petition drive to defend their proposed $64 million expansion and renovation of Carroll High School. A group of parents is remonstrating to stop the project and wants to build a separate high school in the district, which school officials have estimated will cost $118 million.

Both sides have been collecting signatures since Sept. 7, and the drive will conclude Monday.

The appellate court has handed the statute to the General Assembly for it to decide how to rework it so it is constitutional. But Northwest Allen County Schools, the Metropolitan School District of Decatur Township in Indianapolis, which is also in the midst of a remonstrance, and the Ice Miller law firm in Indianapolis plan to send a letter to the Indiana Supreme Court asking it to review the case.

“We’re the school corporations that are in the middle of this that could be impacted by the court’s decision,” Yager said.

District officials are uncertain what will happen after the Supreme Court receives their letter and are unsure how it might affect the district’s current petition drive.

Earlier ILB entries include: 8/24/06; 8/25/06; 8/28/06; and 9/13/06.

Posted by Marcia Oddi on Tuesday, October 03, 2006
Posted to Ind. App.Ct. Decisions

Monday, October 02, 2006

Environment - "Waterfront Development Tests New Jersey’s Handling of Toxic Dumps"

A fascinating story about disputed cleanup levels for hexavalent chromium at a site across the Hudson from Manhattan, by Laura Mansnerus, in today's NY Times. Some quotes:

WEEHAWKEN, N.J., Sept. 26 — Handsome new town houses selling for more than $2 million hug the waterfront here, and more are on the way. On a curve in the river that offers spectacular views of Manhattan and New York Harbor, earthmovers are at work on a public park.

But in the view of some environmentalists, the development on this immensely valuable sliver of shoreline is an experiment of sorts because of what lies underneath it: dirt spotted with hexavalent chromium, a manufacturing component that has been identified as a cause of lung cancer, liver and kidney damage and mutations to human DNA.

Hudson County is the nation’s chromium-waste center, with almost 200 sites where it was dumped decades ago.

Of all those sites, this slice of Weehawken is the first to be reclaimed for residential development, and the reborn riverfront here — representing an investment of hundreds of millions of dollars — depends on the remedy that the state has chosen for sites polluted by chromium.

The worst spots of contamination have been removed, and most of the 96-acre property has been covered with synthetic sheeting and at least 18 inches of clean soil, called a cap. The mayor said that in the park, the soil cap would be six to eight feet deep in places.

The state and local authorities have approved everything the developer, Roseland Properties, has done, and they say the cleanup has far exceeded their standards.

But the state’s policies are not settled at the moment. Rather, they are caught up in a politically charged discussion about how the state has handled the rush to turn urban wastelands into sought-after real estate.

Posted by Marcia Oddi on Monday, October 02, 2006
Posted to Environment

Ind. Courts - I-69 extension opponents file suit in Indiana federal court

The Washington Post is reporting a story by Rick Callahan of the AP:

MARTINSVILLE, Ind. -- Environmentalists and citizen groups sued the federal government and Indiana highway commissioner Monday, alleging that the state rigged the process for choosing a route to extend Interstate 69 from Indianapolis to Evansville.

The lawsuit asks a federal court to halt planning and design work on the state's favored route for the $2 billion project, which would extend the highway 142 miles through mostly rural counties primarily served by winding, two-lane roads.

The plaintiffs argue that officials violated federal law, including the National Environmental Policy Act and the Endangered Species Act.

The lawsuit also alleges that the route selection criteria was tailored to ensure that the state's preferred route was chosen, and that officials did not seriously consider upgrading existing Interstate 70 and U.S. 41 for the path. It contends that route would be significantly less expensive and cause less environmental damage.

"This case comes down to the state ignoring good sense, the law and public sentiment to choose the wrong route for Interstate 69 when there's clearly an environmentally and economically preferable route out there," said Tim Maloney, executive director Hoosier Environmental Council, one of the plaintiffs.

The state's chosen route would destroy about 5,300 acres of farmland, 1,500 acres of woodland and 95 acres of wetland, and would damage or disturb some 400 acres of sensitive ecosystem in caves, sinkholes and underground streams, according to the plaintiffs. * * *

The lawsuit was filed by six southern Indiana residents and members of the Hoosier Environmental Council, Citizens for Appropriate Rural Roads and the Sassafras Audubon Society.

Posted by Marcia Oddi on Monday, October 02, 2006
Posted to Ind Fed D.Ct. Decisions

Ind. Decisions - U.S. Supreme Court refuses to hear Hilbert appeal

The AP is reporting:

CARMEL, Ind. - The U.S. Supreme Court refused to hear Conseco Inc. founder Stephen Hilbert's appeal of a judge's order that he repay the company more than $80 million in stock loans.

The high court's decision ends the last appeal available to Hilbert. Conseco attorneys have said they would move quickly once appeals were exhausted to seize and sell Hilbert's assets to collect millions of dollars the insurer claims Hilbert fraudulently transferred to his wife.

Proceeds from a 2005 auction of Hilbert's household items have been held in escrow until the legal dispute was settled. The company also has tried unsuccessfully to sell Hilbert's 23,000-square-foot Carmel mansion.

The Indiana Supreme Court earlier had denied the same request, and Hilbert's attorneys appealed to the U.S. high court. [see 3/20/06 ILB entry]

Conseco attorney Reed Oslan told The Associated Press Monday that the company was pleased with the high court's refusal to hear Hilbert's appeal and that the company would "vigorously pursue" collection of the judgment.

Hilbert attorney Phillip Fowler said he would release a comment later Monday.

The Indiana Court of Appeals in 2004 unanimously upheld a decision by Hamilton County Judge Judith S. Proffitt ordering Hilbert to repay the money. The debt stems from company-backed loans Hilbert received in the late-1990s to buy Conseco stock, which became worthless during its bankruptcy reorganization in 2003.

Posted by Marcia Oddi on Monday, October 02, 2006
Posted to Ind. Sup.Ct. Decisions

Ind. Courts - Goshen City Court is losing money, and its future is in jeopardy

"Goshen City Court is losing money, and its future is in jeopardy" writes Tara Layne today in the Goshen News. More from the story:

In 2005, the court had an operational deficit of approximately $65,000. In previous years, the deficit was even greater.

Despite the deficit, Goshen Mayor Allan Kauffman said he feels city court provides an important service to residents, and he would like to see it continue.

The mayor wants Elkhart County officials to work with the city to come up with an agreement that will allow the court to continue in a way that will not be a huge property tax subsidy.

“From the aspect of services to residents and convenience to the police department, I would like to see it remain open,” Kauffman said.

He said Elkhart County Administrator Tom Byers has been in discussion with various elected county officials, but so far no agreement has been reached. Kauffman said that at a recent intergovernmental meeting with county officials, “it was clear they did not want to subsidize city court.”

Kauffman said he’d heard some judges have indicated they would like to see city court continued. If it’s not, the county will have to absorb the caseload and potentially hire more employees and find more space, he said.

Currently, the city is paying the salary of Judge Cecelia McGregor, who has not been working for several months because of medical reasons, and is also paying for referees — temporary judges — to do her duties.

However, Kauffman said he is not willing to make that an issue.

“I am a Democrat and she (McGregor) is a Republican. If I make it an issue, it is going to look political. I am not going to do that.”

Indiana State statute does not require cities to operate a city court and many cities no longer do so. Members of the Goshen City Council can vote to abolish the court and will consider that possibility at their Tuesday meeting. The decision must be made prior to an election year, so the council must take action on the matter by Dec. 31.

Posted by Marcia Oddi on Monday, October 02, 2006
Posted to Indiana Courts

Ind. Decisions - Court of Appeals issues 0 today (and 8 NFP)

For publication opinions today (0):

NFP civil opinions today (1):

The Methodist Hospitals, Inc. v. Nikita L. Johnson and Deshay White, Infant (NFP)

NFP criminal opinions today (7) (link to cases):

Archie Jackson v. State of Indiana (NFP)

Isaias Cadena v. State of Indiana (NFP)

Lester D. French v. State of Indiana (NFP)

Eddie Vaughans v. State of Indiana (NFP)

Nicholas D. Thomas v. State of Indiana
(NFP) - see ILB entry here.

William A. McFarland v. State of Indiana (NFP)

Thomas E. Glover v. State of Indiana (NFP)

Posted by Marcia Oddi on Monday, October 02, 2006
Posted to Ind. App.Ct. Decisions

Courts - First Monday in October is today

The U.S. Supreme Court will begin hearing cases tomorrow. (Photo of Court. and story from AP.)

This morning Nina Totenburg of NPR had a long piece on the upcoming term.

And right now WAMU's (Washigton DC) Diane Rehm Show has an hour Supreme Court preview, with David Savage, reporter, "Los Angeles Times"; Joan Biskupic, reporter, "USA Today;" author, "Sandra Day O'Connor: How the First Woman on the Supreme Court Became Its Most Influential Justice"; and Bruce Fein, former associate deputy attorney general, Republican counsel during the Iran-contra hearings, and founding partner with the Lichfield Group.

Linda Greenhouse of the NY Times has a preivew piece, as does David G. Savage of the LA Times, and Charles Lane of the Washington Post (whose story ran yesterday).

Posted by Marcia Oddi on Monday, October 02, 2006
Posted to Courts in general

Ind. Decisions - Summaries completed

The 5 Court of Appeals opinions from Friday have now been summaried.

Posted by Marcia Oddi on Monday, October 02, 2006
Posted to Ind. App.Ct. Decisions

Courts - Teach opinion writing in law school; more

That is the proposal made by career federal law clerk and law professor John Greabe in this article from The National Law Journal.

Also in the NLJ, an article by Mark I. Levy on the seven pillars of effective appellate advocacy.

And Howard Bashman has a new article out today, titled "How Many Issues Should You Raise on Appeal?"

Posted by Marcia Oddi on Monday, October 02, 2006
Posted to Courts in general

Ind. Gov't. - More on: "DNR should stop its practice of manufacturing controversies"

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

For background, see this ILB entry from 9/26/06.

Posted by Marcia Oddi on Monday, October 02, 2006
Posted to Environment | Indiana Government

Law - Night law classes may end at the University of Louisville

Mark Pitsch of the Louisville Courier Journal reports today, in a story that begins:

Night law classes may end at the University of Louisville under a recommendation by the law school's faculty.

Since U of L began offering night classes in 1950, the program has graduated some of the area's leading lawyers and judges, including Jefferson County Attorney Irv Maze and Jefferson Circuit Judge Steve Mershon.

If it were to end, fewer working and older students would get law degrees, contrary to U of L's mission as an urban university, according to some students and alumni.

"That's coming from the faculty? What a shame," said James Dearing, 39, of Louisville, who is in his third year of the night law program. "That saddens me, and I'm shocked they're even talking about it."

Provost Shirley Willihnganz said meetings would be held with students and alumni before a decision is made. But she said last week nothing had been scheduled.

The proposal from faculty came in a vote last month to phase out the program, citing declining interest and saying the day program would benefit from the additional resources.

David Ensign, acting dean of the university's Brandeis School of Law, said ending the night program would allow faculty more time for research and improve the school's chances of joining the Order of the Coif, a prestigious honor society that includes the University of Kentucky and about 80 other schools.

Posted by Marcia Oddi on Monday, October 02, 2006
Posted to General Law Related

Sunday, October 01, 2006

Courts - "When the PUNISHMENT doesn't fit the CRIME"

"When the PUNISHMENT doesn't fit the CRIME: Murder deals, dismissals anger victims' families - Jefferson County prosecutors cite difficulties with witnesses and evidence in cases." Those are the headlines to a lengthy report this morning in the Louisville Courier Journal by Jason Riley. The thesis:

A Courier-Journal analysis of 71 completed murder cases between 2003 and 2005 shows that Jefferson County's record for prosecuting accused murderers lags far behind the national average by multiple measures.
Here is the home page for Special Report, including more stories, videos, graphics (such as this chart which vividly illustrates its point), and an "online database and map of every Jefferson County homicide since 2003."

Posted by Marcia Oddi on Sunday, October 01, 2006
Posted to Courts in general