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Thursday, November 30, 2006

Ind. Decisions - More on: 7th Circuit practitioners, beware!

A reader writes about yesterday's ILB entry re what awaits 7th Circuit lawyers who fail to submit a correct jurisdictional statement:

Marcia, thanks for the link to the Mazda/Smoot decision which is a scary warning to all federal appellate practitioners. Also scary is the 20 minute audio of the oral argument, in which Judges Posner and Easterbrook flay both counsel like they were pulling the wings off of a fly. Anyone who has been in the Seventh Circuit at any frequency has witnessed this process. And I have a case which will be set for argument shortly. I used to enjoy those trips to Chicago......

Posted by Marcia Oddi on Thursday, November 30, 2006
Posted to Ind. (7th Cir.) Decisions

Law - Stanford Law School announces “a new model for legal education”

I really like this just-posted WSJ Blog entry on proposed changes in Stanford Law's curriculum and the provisions it quotes from Dean Kramer's statement (the full statement is here).

Posted by Marcia Oddi on Thursday, November 30, 2006
Posted to General Law Related

Law - More on global warming, federal preemption issues

Following up on this entry from last weekend ("Another important oral argument before the Supreme Court next week") on global warming, and this one ("Supreme Court to Hear Arguments Next Week in States' Challenge to 'Preemption' of Regulation") on administrative law, are several reports on yesterday's oral arguments.

"Federal Oversight of Banks Risks Abuse, States Argue"
is the headline to a story by Tomoeh Murakami Tse in the Washington Post. A quote:

In oral arguments, E. John Blanchard, who represented Michigan and whose case is supported by the 49 other states, argued that "preemption" of local authority by the OCC would prevent states from protecting their residents. "Michigan and the states want to be able to help their citizens with abusive and predatory lending complaints," he said.

A lawyer for the banking industry countered that courts have long acknowledged the primacy of federal regulators over local authorities when evaluating large banks and that this instance was no different. Bankers have also complained of the burden of excessive regulation on the local and federal levels.

"The court has recognized for a century that in that area, when national banks have powers, including incidental powers recognized by the comptroller, they generally preempt any state law," said Robert A. Long Jr., who represents Wachovia, but whose case is supported by the entire banking industry.

Roberts said it seemed that banks wanted to be viewed as federally governed on regulation issues but state-based to shelter themselves from liability issues. "You are really trying to have your cake and eat it too," he said.

Also in the Post, Robert Barnes writes in a story headlined "Court Hears Global Warming Case: Justices to Decide Challenge on Greenhouse Gas Emissions"

The NY Times' Linda Greenhouse writes on the global warming issue, including this:

By the end of the argument there appeared a strong likelihood that the court would divide 5 to 4 on the standing question, with Justice Anthony M. Kennedy holding the deciding vote. His relatively few comments were ambiguous. Early in the argument he challenged the assertion by Mr. Milkey, the states’ lawyer, that the case “turns on ordinary principles of statutory interpretation and administrative law” and that there was no need for the court “to pass judgment on the science of climate change.”

Posted by Marcia Oddi on Thursday, November 30, 2006
Posted to Administrative Law | Environment | General Law Related

Ind. Decisions - "Appeals judges say it was not enough to get sidewalks approved after the fact"

"Appeals judges say it was not enough to get sidewalks approved after the fact" is the leadline to this story in today's NWI Times by Joe Carlson, about yesterday's 7th Circuit ruling in U.S. v. De La Cruz (ILB entry here). Any Grimmof the Gary Post Tribune has a story here.

Posted by Marcia Oddi on Thursday, November 30, 2006
Posted to Ind. (7th Cir.) Decisions

Ind. Decisions - Court of Appeals issues 2 today (and 22 NFP)

For publication opinions today (2):

In The Cadle Company II, Inc. v. Robert Overton, a 9-page opinion, Judge May writes

:The Cadle Company II (“Cadle”) appeals summary judgment in favor of Robert Overton. Cadle argues the statute of limitation was tolled by Overton’s absence from Indiana. The statute of limitation is tolled by a party’s absence from Indiana unless that party has an agent for service of process in Indiana. The Indiana Trial Rules deem the Secretary of State the agent for service of process and detail how service may be made on the Secretary of State. Cadle has not demonstrated Trial Rule 4.10 provides constitutionally deficient notice so as to toll the statute of limitation. Because Cadle did not serve Overton until after the statute of limitation had run, the trial court did not err in dismissing Cadle’s suit with prejudice. We affirm.
NFP civil opinions today (7):Carol Nash v. New Energy Corporation (NFP)

Marsha Blaugh, Kenneth and Sharon Myers v. Ward W. Miller, Estate of John Joseph Powner (NFP)

John H. Meyer, M.D. v. Carol Cupp (NFP)

In the Matter of D.J. v. State of Indiana (NFP)

Brian Dunn v. Michiana Campgrounds, LLC (NFP)

In the Matter of F.M. (NFP)

In re the Marriage of Donald K. Azzarito and Amy S. Azzarito (NFP)

Cesare, LLC and Kevin Mensendiek v. City of Bedford, et al. (NFP)

NFP criminal opinions today (15) (link to cases):

Christopher R. Salyers v. State of Indiana (NFP)

Charles Allen v. State of Indiana (NFP)

Jerome Poole v. State of Indiana (NFP)

Samuel B. Martin v. State of Indiana (NFP)

Tremayne Chapman v. State of Indiana (NFP)

Jamie Sides v. State of Indiana (NFP)

Jeremy Kierstead v. State of Indiana (NFP)

Michael E. Cook v. State of Indiana (NFP)

William O. Herman v. State of Indiana (NFP)

Brent Alec Parrish v. State of Indiana (NFP)

William M. Zollinger v. State of Indiana (NFP)

Maurice Jones v. State of Indiana (NFP)

Tywann Davis v. State of Indiana (NFP)

Justin M. Addler v. State of Indiana (NFP)

Marvin Willis v. State of Indiana (NFP)

Posted by Marcia Oddi on Thursday, November 30, 2006
Posted to Ind. App.Ct. Decisions

Wednesday, November 29, 2006

Ind. Law - More on: "Wineries ‘live with’ new shipping rules"

Following up on this entry from Nov. 25th, the Bedford Times-Mail reports today, in a story by Mike Ricketts:

BEDFORD — An award-winning Lawrence County winery is generating more business than the owners anticipated it would three years into the venture.

That, however, could have gone the other direction had legislators such as Eric Koch, R-Bedford, and Brent Steele, R-Bedford, not gone to bat for the wineries of Indiana, reaching a compromise allowing the shipment of wine within the state and to other states that have a reciprocal agreement with the Hoosier state, said Carousel Winery owner Sue Wilson.

“We’re just thrilled that there were some agreements made,” said Wilson whose winery is on Ind. 37 near Applacres. * * *

That’s not to say, however, the shipping rules are easy or overly favorable to the growing wine business in Indiana.

Of Indiana’s more than 30 wineries, Carousel and 15 others have paid $100 for a permit allowing them to ship wines within the state borders. The permit required quite a bit of paperwork, though.

“You have to apply for a new permit, so it’s just like applying for a winery permit,” Wilson said. “So, you have to have all your ducks in a row.”

And Carousel’s hands are still bound when it comes to shipping to other states that don’t have a reciprocal agreement with Indiana, such as Illinois.

“We lost an eight-case sale out of Chicago of one of our more expensive wines,” Wilson said.

“The customer is handicapped and can’t make it down to us, but we couldn’t ship the wine. So that really hurts.”

The rules include an agreement that the winery won’t ship more than 3,500 cases in one year, a rule which doesn’t affect Carousel.

“We’re OK with it, because that’s a lot of cases for us to ship,” Wilson said.

“But some of the wineries such as Oliver, Huber, Chateau Thomas I would imagine make shipments nearing that 3,500 case limit.”

Another limitation on the permit will begin in April when the wineries are required to have had face-to-face contact with the buyer to ensure she is 21 before shipping the wine.

Wilson said she can live with the permit system and that’s what she anticipates unless wineries or the Legislature decide to reexamine the issue.

Posted by Marcia Oddi on Wednesday, November 29, 2006
Posted to Indiana Law

Ind. Courts - Still more on: Judicial mandate issues in Carroll County

In this Nov 16th entry, the ILB posted Carroll Superior Court Judge Jeffrey Smith's 5-page Order for Mandate of Funds.

Today the Carroll County Comet reports, in a story by Debbie Lowe:

Carroll County Council decided in a split vote to strike a compromise with Superior Court Judge Jeffrey Smith to settle a personnel issue without going through costly litigation. However, council members expressed their unhappiness with the situation.

Smith had previously requested that the county pay his substitute court bailiff, hired to do the work of the full-time bailiff, who is on unpaid medical leave, full salary and benefits, including medical coverage. The Council denied that request citing the substitute court bailiff was a temporary employee and was not entitled to that pay and benefits.

On Nov. 9, Smith issued a mandate (allowed by state statute), ordering that the substitute court bailiff be paid fulltime wages, plus benefits, including medical insurance.

Council members objected to the mandate and met in executive session with county attorney Barry Emerson Nov. 17 to discuss the matter. The following is the result of that meeting.

Resolution 2006-5, presented by Emerson, reads in part: "Be it resolved by the Carroll County Council as follows: That Dee Dellenbach shall be recognized as an employee mandated by the Court pursuant to the Carroll County Personnel Policy, and she shall receive all the benefits of a full time employee, excluding health insurance coverage, so long as the bailiff on medical leave is receiving medical insurance coverage. Dee Dellenbach shall receive an employment wage of $11.55 per hour, beginning from her date of hire of Sept. 28, 2006. The Carroll County Council waives trial on the merits of the Order For Mandate of Funds and agree to enter into an agreed order with the Judge of the Carroll Superior Court that incorporates the terms and conditions of this resolution."

"I am disappointed we had to come to this point," council president Rob Baker said after the three-to-two vote to adopt the resolution.

Council member Carl Abbott said the compromise was necessary "to save the taxpayers of Carroll County the cost of litigation."

Outgoing council member John Blackburn agreed with Abbott. The third council member to vote in favor of the compromise was Nancy Cripe.

"I feel it's in the best interest of the county to not spend thousands of dollars," explained Cripe.

Council members Ann Brown and Steve Ashby, who said he voted his conscience, voted against the resolution. Council member Jerry Hendress abstained due to a potential job conflict. Baker did not vote.

Brown said she called several county residents to ask for opinions about how to vote in the matter.

"No one was in favor of settling," she said. "They did not feel it was a financial or a legal issue, but a matter of what is right and wrong."

In a statement after the meeting adjourned, Baker said the cost of litigation could have exceeded $100,000.

Smith said that when he filed the mandate he, "did not anticipate being in the position that we both put ourselves in."

Baker questioned Smith about how the position would be filled when or if the absent employee resigned. Smith said after six months from the beginning of the unpaid medical leave, the fill-in employee would become the permanent employee. He said she would have had six months of training by that time and he would bring her onboard without following county hiring protocol.

"She's proven to be an excellent employee," he said. "She will just become a regular employee."

When questioned by Brown about extending the medical leave (of the permanent, fulltime court bailiff), a situation provided for in the county personnel policy, Smith declined to state definitely he would not grant the extension.

Posted by Marcia Oddi on Wednesday, November 29, 2006
Posted to Indiana Courts

Ind. Courts - Greene County clerk says she'll be in office ‘once in a while'

"Fowler says she'll be in office ‘once in a while'" is the headline to a story by Nick Schneider of the Greene County Daily World. Some quotes:

It appears Interim Greene County Clerk Susan Fowler intends to take advantage of a provision in state law that allows salaried elected county officials to show up to work only one day a year and still draw a full paycheck.

Fowler, a Republican who was defeated in the general election Nov. 7 by Democrat Jackie Winstead, turned in her office keys a couple days after the election and said she would only be in periodically between then and the official end of her term Dec. 31. * * *

Fowler was selected as interim clerk by a caucus of Republican precinct committeemen in May - filling the unexpired term of former GOP clerk Tom Franklin, who resigned to accept the job of Police Commissioner for the town of Bloomfield.

Winstead, who's worked in the clerk's office for 15 years, defeated Fowler, who's been the interim clerk since June. Winstead received 57 percent of the votes - 5,441 - while Fowler received 47 percent - 4,830 votes. * * *

Greene County Commissioner's Attorney Marilyn Hartman said Fowler is operating within the law by her actions.

Hartman said, “Because she is an elected official, if she never shows up at her office there is nothing that can be done unless she does something that is impeachable. Legally, all elected officials have definitions of responsibilities and she is salaried ... and there is nothing legally we (the county) can do.”

Posted by Marcia Oddi on Wednesday, November 29, 2006
Posted to Indiana Courts

Ind. Courts - "Questions of Jury Behavior in Myers Murder Trial"

"Questions of Jury Behavior in Myers Murder Trial" is the headline to this story by Karen Hensel of WISH-TV that begins:

There are startling revelations about one of the state's most high profile murder trials. I-Team 8 has learned about allegations concerning after hours conduct of sequestered jurors and court employees actually stopped the recent John Myers murder trial.

I-Team 8 learned the judge conducted an investigation into allegations of excessive drinking, food fights and partying that one juror likens to a "fraternity party." One source describes the drinking and partying as "inappropriate." They visited places in Morgan County like JP's, Squealers, El Camino and the hotel, The Lost Inn.

The judge, Christopher Burnham, learned details as he questioned jurors one at a time. The questions about excessive drinking, improper telephone calls, watching the news, surfing the internet and seeing what might be called inappropriate behavior by bailiffs caused a four hour delay in the trial.

Posted by Marcia Oddi on Wednesday, November 29, 2006
Posted to Ind. Trial Ct. Decisions

Ind. Decisions - 7th Circuit practitioners, beware!

"Another Seventh Circuit Crackdown on Sloppy Lawyering" is the headline to this entry today in the blog, Decision of the Day, about an opinion from Judge Poser in a case out of Wisconisn, Smoot v. Mazda Motors. A sample:

After ordering the attorneys to show cause why they should not be sanctioned, Judge Posner asks rhetorically, "Are we being fusspots and nitpickers in trying (so far with limited success) to enforce rules designed to ensure that federal courts do not exceed the limits that the Constitution and federal statutes impose on their jurisdiction?"

Posted by Marcia Oddi on Wednesday, November 29, 2006
Posted to Ind. (7th Cir.) Decisions

Ind. Decisons - 7th Circuit issues one Indiana case today, re East Chicago sidewalks

In U.S. v. De La Cruz , a 12-page opinion, Judge Kanne writes:

Defendants Joe De La Cruz and Edwardo Maldonado were each convicted on a single count of misapplying public funds in violation of 18 U.S.C. § 666(a)(1)(A). On appeal, the defendants argue that they could not have misapplied funds in violation of § 666(a)(1)(A) because the expenditures in question were properly approved by the city government. Defendants also argue that an evidentiary ruling constitutes reversible error and that their sentences are the result of clear error. We disagree and affirm the convictions and sentences.

Posted by Marcia Oddi on Wednesday, November 29, 2006
Posted to Ind. (7th Cir.) Decisions

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

For publication opinions today (1):

In In the Matter of J.H. v. State of Indiana, a 7-page opinion, Judge Vaidik writes:

J.H. appeals the revocation of his probation/suspended commitment. Because J.H. did not receive written notice of the claimed violation of his probation that was sufficiently detailed to allow him to prepare an adequate defense, his due process rights were violated. We therefore reverse the revocation of J.H.’s probation/suspended commitment.
NFP civil opinions today (1):

Barbara Bushman Wood v. Randall Bushman (NFP) - child support, affirmed.

NFP criminal opinions today (5) (link to cases):

Curtis Medina v. State of Indiana (NFP)

Dennis Reeder v. State of Indiana (NFP)

Carl Beckner v. State of Indiana (NFP)

Armando J. Velasquez v. State of Indiana (NFP)

Timothy J. Frankosky v. State of Indiana (NFP)

Posted by Marcia Oddi on Wednesday, November 29, 2006
Posted to Ind. App.Ct. Decisions

Ind. Decisions - "You can't have your cake and eat it too" - perhaps

Patrick Guinane of the NWI Tmes writes today on yesterday's 3-2 ruling by the Indiana Supreme Court in the case of Porter County Sheriff Department v. Rita J. and Douglas Guzorek (ILB entry here). Some quotes:

INDIANAPOLIS | A woman injured in a 2000 car accident involving a Porter County sheriff's deputy can continue her lawsuit against the department, a divided Indiana Supreme Court ruled Tuesday.

Officer Joseph Falatic was returning from a residential alarm call on Aug. 11, 2000, when his squad car rear-ended a vehicle driven by Rita Guzorek, of San Pierre in Starke County.

Guzorek sued Falatic. But a Porter County judge ruled the officer couldn't be held personally responsible for an accident that occurred during the course of duty.

Guzorek tried to expand the suit to the Porter County Sheriff's Department. But a LaPorte County judge and the Indiana Court of Appeals ruled she failed to act within the two year statute of limitations.

The Supreme Court reversed that ruling Tuesday in a 3-2 decision that sends the case back to LaPorte County and puts the Sheriff's Department on the hook for up to $300,000 in damages. The two sides are negotiating an out-of-court settlement, said Sharon Stanzione, the Merrillville attorney representing the department.

Stanzione said Guzorek's original suit against Falatic was an attempted end-run around a $300,000 state cap on damage awards against government agencies and employees. If Guzorek wanted to sue the Sheriff's Department, Stanzione said, she should have done so within the two-year time limit.

"You can't have your cake and eat it too," Stanzione said.

Indiana Chief Justice Randall Shepard made a similar argument in a four-page dissent that argues the majority Supreme Court opinion "swims upstream" by presuming Guzorek made a "mistake of identity" by initially suing only Falatic.

"Under such reasoning, virtually everyone who chooses to name a given defendant and later finds the choice an unhappy one could lay legitimate claim to 'mistake of identity,'" Shepard wrote.

Posted by Marcia Oddi on Wednesday, November 29, 2006
Posted to Ind. Sup.Ct. Decisions

Tuesday, November 28, 2006

Ind. Gov't. - More on: Could this be a coincidence?

Sunday morning the ILB posted an entry commenting that three different papers had items that day introducing the topic of raising the salaries of members of the Indiana General Assembly. That seemed odd, following directly on the heels of numerous stories about the members' pension plan, for which the legislators receive four taxpayer dollars for every dollar they themselves contribute, and the healthcare for life plan, for which members of the Indiana Senate, at least this year, continue to be eligible, and which is being utilized by an unidentified number (at least in the many dozens) of "retired" former legislators from both houses, their spouses, former spouses, children, and staff.

Now today the Indianapolis Star has an editorial headlined "They deserve raise if perks are pared." Some quotes:

Overall compensation also isn't nearly as bad as the base pay indicates. Leadership stipends and compensation for expenses -- $137 a day during sessions and $54.80 each day that legislators aren't in session -- boosted average pay to just under $45,000 last year.

And until recently, the perks, including lifetime health insurance and extraordinary pension benefits, were well beyond what most private sector employees could expect. The House has dropped the heavily subsidized health-care perk, and the Senate is in the process of eliminating it. The generous retirement benefit remains.

Then the Star's justification for raises:
The low salary has prompted legislators over the years to reward themselves with extraordinary perks. That's not, in the end, a bargain for taxpayers.
A different Star editorial from 2004 is no longer freely accessible but is quoted in this ILB entry - some of which I will now repeat:
The Indianapolis Star has an informative editorial today about legislative compensation, explaining that things are not precisely as they appear. The title is "Behind the curtain: legislators' compenation." It begins:
John Bartlett * * *, chairman of the Public Officers Compensation Advisory Commission, notes that legislators haven't received a pay raise in 21 years.

Yet Bartlett admits he didn't check out legislators' perks. Like the $134 per day each one receives during sessions for food and lodging expenses. It adds up to an additional $8,174 a year. Then there's the state's match of $4 for every buck a legislator contributes to his pension. Legislators, by the way, inexcusably voted this year to keep the size of those pensions secret.

Why didn't the commission take those extras and others into account? Because, Bartlett says, the statute creating the panel charged it with considering "wages and wages only."

The Star piece continues:
The Star Editorial Board decided to pull back the curtain and do its own examination of the rewards lawmakers receive. The perks include a generous pension, dinners and gifts from lobbyists, the ability to go to work as a lobbyist immediately after leaving office and lawmakers hired as deans at state universities. With all this, and the state's mounting fiscal problems, it's no wonder Hoosiers reacted with suspicion at the commission's recommendation.
The Star goes on to detail the perks, in five sections with headings such as "Pension secrets." That section explains:
The General Assembly this year passed a bill making details of individual legislators' pensions secret. Only four lawmakers voted against the measure. State Rep. Tom Saunders, R-Lewisville, was one of them. He says: "If I'm generating revenue from the taxpayers, they need to know how much."

Most of his colleagues, however, don't agree. Perhaps it's arrogance. Or frustration with the flak they receive for proposing pay raises. But the legislature has taken the tack that the best way to deal with compensation is by granting themselves sweet deals without public consultation.

Take for instance then-Gov. Frank O'Bannon's veto of legislation that would have given health benefits to former legislators who served a mere six years in office.

In response, Senate President Pro Tempore Robert Garton and then-Speaker John Gregg invoked a 2001 law and signed off on funding the perk from the general fund. Forget the budget deficit. And forget the fact that ordinary state employees' salaries haven't kept up with inflation. Lawmakers took care of their own desires.

Regular readers will recall that the ILB posted a number of entries on "PERF privacy" earlier this year, including this one, which begins:
Last evening Governor Kernan announced that he had signed into law HEA 1285. As a result, the law is now in effect, retroactive to September 1, 2003. This new law will prevent anyone from accessing PERF information, other than member names and years of service, through a FOIA request.
In my Sunday entry I cited the information provided by the National Conference of State Legislatures (NCSL), which shows that professional legislatures such as Michigan and Illinois are among the most highly paid. Here is a reproduction of Table 2 from the NCSL "full vs. part-time legislatures" page - I've inserted the states of Illinois, Michigan, Indiana and Iowa, which were mentioned in the Sunday articles, according to their NCSL rank:

Table 2. Average Job Time, Compensation and Staff Size by Category of Legislature

Category of LegislatureTime on the Job (1)Compensation (2)Staff per Member (3)
Red [ILLINOIS, MICHIGAN]80% $68,5998.9
White [IOWA] 70%$35,3263.1
Blue [INDIANA]54%$15,9841.2
1. Estimated proportion of a full-time job spent on legislative work including time in session, constituent service, interim committee work, and election campaigns.
2. Estimated annual compensation of an average legislator including salary, per diem, and any other unvouchered expense payments.
3. Ratio of total legislative staff to number of legislators.
Source: NCSL, 2004

One might look at this table and conclude that, as part-time legislators, Indiana members at $45,000 a year including expenses, already are paid a good deal more than part-time legislators in other states (where the average, including expenses, is $15,984). So perhaps the question should be: Do we want to go to a professional legislature, one where members are paid perhaps $66,000 a year, as is our Secretary of State (who presumably, although I can't say for sure, receives the same health benefits and retirement as other state employees) - enough that their legislative service is not a second job? A related question - if we have a professional legislature, do we also want it to be a full-time legislature?

[More] Gary Welsh at Advance Indiana also has a post on this topic. He points to the Illinois legislators voting themselves another pay raise; which reminds me that the Pennsylvania voters are still reacting to the "middle-of-the-night" pay raises voted in by their legislature last year. This year, amidst continuing voter outrage, the pay raises were repealed, but not soon enough to save the jobs of one Supreme Court justice and, as I recall, both their House and Senate leaders. (See e.g. these ILB entries from 11/9/05 and from 5/17/06 ("Voter backlash continues in Pennsylvania").

Posted by Marcia Oddi on Tuesday, November 28, 2006
Posted to Indiana Government | Legislative Benefits

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

For publication opinions today (1):

In Keith J. Lipscomb v. State of Indiana, an 8-page opinion, Judge Friedlander writes:

Keith J. Lipscomb appeals the trial court’s judgment forfeiting his $1952 in U.S. currency, which was seized upon his arrest for dealing in cocaine. Lipscomb presents the following restated issue for review: Did the State present sufficient evidence to support the trial court’s forfeiture order? We reverse and remand.
NFP civil opinions today (0):

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

Guy Hueston v. State of Indiana (NFP)

Donald G. Kistler v. State of Indiana (NFP)

Timothy J. Craft v. State of Indiana (NFP)

Adam Thomas v. State of Indiana (NFP)

Dennis Silvers v. State of Indiana (NFP)

Kevin Basler v. State of Indiana (NFP)

Posted by Marcia Oddi on Tuesday, November 28, 2006
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Supreme Court decides one today

Today's decision, Porter County Sheriff Department v. Rita J. and Douglas Guzorek, 15-page in total, with a 3-2 vote, Justice Boehm writing the 11-page majority opinion and Chief Justice Shepard writing the 4-page dissent, presents very strong views on boths sides. For instance, from the dissent:

Justice Boehm has properly rejected Porter County Sheriff’s Department’s various claims about timing and failure of notice under Rule 15(c). His assessment of what constitutes a “mistake of identity,” however, is against the weight of federal and Indiana authority. I see no reason why Indiana should be an outlier on this question, and the majority opinion does not undertake to provide a reason for placing us against the mainstream. * * *

Justice Boehm’s opinion thus swims upstream against both federal and Indiana authority about the meaning of “mistake of identity” by sweeping within Rule 15(c) any mistake, including legal bad calls about who among multiple possible defendants might be liable. * * *

Rule 15(c) was amended to allow relation back where a plaintiff’s honest error results in a mistake of identity. Rule 15(c) was not intended to save parties from the legal or tactical choices made by their lawyers.

From the majority opinion:
The dissent characterizes the Guzoreks’ decision to sue the individual officer rather than the sheriff’s department as a legal or tactical choice. The Chief Justice cites several cases supporting the well-founded proposition that when a party makes a conscious choice of whom to sue, that party cannot seek to add another party under 15(C) after the statute of limitations period had run. We agree that such a choice cannot be considered a mistake under Rule 15(C). * * *

The cases the dissent cites are markedly different from the present one. None involves a suit against a clearly immune party and all involve a rational decision to sue one party and not another. The dissent points out that in some circumstances a claimant may choose to sue an individual employee rather than the government to avoid contending with the contributory negligence rule that governs Tort Claims Act suits against government units. Avoiding contributory negligence by suing the individual may be a sensible decision if there is a genuine issue as to a public employee’s scope of employment. But in this case there is no plausible basis to conclude that Officer Falatic was outside the scope of his employment when he collided with the plaintiff. He was, as noted, returning to his post from a run responding to an alarm. On these facts a suit against the officer was dead on arrival, and the government unit that defended the officer obviously knew that or should have known it. Such a mistake of applicable law—suing the agency that is immune instead of the secretary who is not—is precisely the situation that gave rise to Rule 15(c) in 1966.

Posted by Marcia Oddi on Tuesday, November 28, 2006
Posted to Ind. Sup.Ct. Decisions

Law - Illinois fails to pay $510,260 in legal fees it was ordered to pay after losing a lawsuit on video-game restrictions

The AP reports today, in a story by John O'Connor:

SPRINGFIELD, Ill. -- Gov. Rod Blagojevich's administration has not handed over $510,260 in legal fees it was ordered to pay after losing a lawsuit on video-game restrictions, leading the game industry to ask a federal judge for help.

The judge ruled in August that the state must pay the legal costs of the video-game industry, which successfully blocked the Democratic governor's plan to prohibit the sale of violent and sexually explicit video games to minors.

But lawyers from Jenner & Block in Washington, D.C. say they haven't received the money or an explanation for the delay, according to court documents. So they went back to the courtroom earlier this month to ask the judge to force the administration to comply.

U.S. District Judge Matthew Kennelly, who struck down the video game restrictions in December as unconstitutional, is scheduled to rule next month on whether to intervene. He could set a deadline for the state to pay.

Blagojevich appealed the portion of Kennelly's ruling that dealt with games with sexual content, but a federal appeals court upheld Kennelly's decree on Monday.

Yesterday's 7th Circuit ruling is Entertainment Software Ass'n. v. Blagojevich, a 21-page opinion which begins:
WILLIAMS, Circuit Judge. In this appeal, we must determine whether the State of Illinois has gone too far in its attempt to protect minors from the allegedly dangerous impact of certain video games. The plaintiffs, associations representing video game manufacturers and retailers, successfully challenged the constitutionality of the Illinois Sexually Explicit Video Game Law in the district court. The State now appeals the district court’s imposition of a permanent injunction against enforcement of the law. Primarily because we conclude that the Sexually Explicit Video Game Law is not sufficiently narrowly tailored, we affirm the judgment of the district court.

Posted by Marcia Oddi on Tuesday, November 28, 2006
Posted to General Law Related

Law - LCJ article didn't influence jury, judge rules

James Bruggers of the Louisville Courier Journal reports today:

Courier-Journal coverage did not influence a Jefferson Circuit Court jury that awarded a railroad worker $1.8 million in September after he claimed he suffered brain damage from solvent exposure, a judge has ruled.

Franklin Circuit Judge Roger Crittenden, who handled the challenge by CSX Transportation Inc., also concluded that the worker's attorney, Joseph Satterley, "did not play an unethical role in the publications."

At issue were an article and editorial published in the newspaper during the trial.

Both were about research from West Virginia that showed cleaning solvents used by railroad workers in the past had shrunk the bridge of the brain that helps one side communicate with the other.

The article and editorial did not mention the trial involving former CSX employee Terry L. Williams of Corbin, Ky.

Satterley said yesterday he was pleased with the ruling. CSX spokesman Gary Sease said the company would pursue an appeal of the verdict.

After losing the verdict, CSX in post-trial complaints in part blamed the newspaper and also accused Satterley of improperly talking to a reporter.

In his ruling earlier this month, Crittenden concluded the story and editorial were not published with the intent of influencing the verdict, as CSX had claimed.

Crittenden also wrote that the content of the article "is not as sensational as (CSX) claims," and that there was no proof that jurors read or relied on the newspaper to reach their verdict.

Jill Grubbs, the jury's foreman, said yesterday the jury reached its verdict based only on evidence from the trial, and "there was too much … indicating the railroad was in the wrong."

Posted by Marcia Oddi on Tuesday, November 28, 2006
Posted to General Law Related

Monday, November 27, 2006

Ind. Courts - Adams Judge Heimann honored for drug fighting

The Decatur Daily Democrat reports, in a story by Eric Mann that begins:

In 16 years on the bench as judge of Adams Superior Court, James A. Heimann of Decatur has become involved in many activities, but probably none lasting longer than his association with local, regional, and state efforts to eliminate the use of alcohol, tobacco, and other drugs, especially by youth.

For his work since 1991, the year he ascended to the superior court position, Judge Heimann was recently named Volunteer of the Year for 2006 by the northeastern Indiana regional advisory board of the Governor's Commission for a Drug-Free Indiana.

Heimann was nominated for the award by Barry Humble, executive director of Adams County's Substance Abuse Awareness Council (SAAC), who wrote on the nomination form,

"One would expect a judge to have some firm, straight-forward beliefs about substance abuse.

"What Judge Heimann has done is to share his passion concerning the negative impact of substance abuse beyond the walls of his courtroom and into the homes and meeting rooms of the Adams County community. His preference is to share with the community from the wealth of his experiences to prevent tribulation rather than pronounce judgment after a community member makes a poor decision."

Heimann, who is in his early 60s, has experience not just as a defense lawyer and a jurist, but also as a military prosecutor in Vietnam during that war, when substance abuse violations were high among crimes that were handled by the military courts.

Posted by Marcia Oddi on Monday, November 27, 2006
Posted to Indiana Courts

Environment - Some stories today, on mercury, DNR and ballast water

"Federal mercury limits lax, some say" is a story by James Bruggers of the Louisville Courier-Journal. Some quotes:

Twenty-two states -- but not Kentucky -- have enacted more stringent measures to control mercury emissions from power plants or are considering doing so, a national survey shows.

The results suggest that many states are concerned that the Bush administration's mercury rules, which were adopted last year, do not go far enough to protect the public and the environment from a potent neurotoxin, said Bill Becker, executive director of the National Association of Clean Air Agencies, which conducted the survey.

Some are concluding that the federal rules give coal-fired plants too many years to comply with mercury limits, that the limits themselves are too lenient or that they will perpetuate polluted "hot spots" by letting some plants comply by paying others to cut back through a cap-and-trade program, Becker said.

Indiana is considering a proposal to stiffen its mercury rules, but Thomas W. Easterly, commissioner of the Indiana Department of Environmental Management, has recommended going along with the federal rules, said Rob Elstro, an IDEM spokesman.

An editorial today in the Fort Wayne Journal Gazette begins:
Hoosier conservationists aren’t likely to shed tears over Kyle Hupfer’s departure from the Indiana Department of Natural Resources. The DNR director too often focused on exploitation instead of preservation when it came to Indiana’s natural resources. Hupfer’s replacement needs to make good stewardship and protection of state resources his priority.

Hupfer, Gov. Mitch Daniel’s controversial appointment to lead the DNR, is resigning, effective Friday. Daniels has named Robert Carter Jr. as his replacement. Carter, who has served as the director of DNR law enforcement for the past 21 months, needs to make it clear to Hoosiers he understands his duty to protect the state’s natural assets. * * *

Carter should take action to correct some of Hupfer’s missteps. For example, he should put an end to coal mining in the Glendale State Fish and Wildlife Area. Carter’s experience leading the conservation officers should be beneficial, but overseeing the entire DNR will be challenging. He should not be shy about enlisting the assistance of the state’s many outspoken environmentalists, hunters and anglers when he has difficult decisions to make.

From the Milwaulkee Journal-Sentinel, a story headlined "Proposed ballast ban makes waves: Idea alarms Great Lakes shippers, thrills fisheries." Some quotes from the story by Dan Egan:
Now that the State of Michigan has floated what has previously been the unthinkable - a ban on Great Lakes freighters using ballast water on many of their traditional shipping routes to prevent the spread of dangerous invasive species - the debate is picking up steam across the region.

Conservation groups and state fishery bosses from New York to Minnesota are applauding the decision by the Michigan Natural Resources Commission to at least put the idea on the table.

But one shipping industry representative says the toll such a ban would take on the region's economy would be catastrophic.

The Michigan commission's request came in the form of a resolution to ban the uptake of ballast water in all Great Lakes waters infected by viral hemorrhagic septicemia, a disease that poses no danger to humans but causes fish to bleed to death.

The disease, first discovered in the Great Lakes in 2005, has been detected in Lakes Erie and Ontario, as well as Michigan's Lake St. Clair and the lower St. Lawrence River.

To halt its spread, the federal government's Animal and Plant Health Inspection Service has issued emergency restrictions on many live fish shipments from the eight Great Lakes states. APHIS officials say they are also considering the Michigan request to ban ballast uptakes, though they will not discuss how long it may take to reach a decision. * * *

"Anything we can do to further regulate or curtail or shut down ballast water movement and the potential impacts brought about by the transfer of that water would be a great thing to do," said Doug Stang, Bureau of Fisheries chief for the New York State Department of Environmental Conservation.

His counterpart in Minnesota agrees that the ballast water problem can no longer be ignored in the fight to slow the arrival and spread of invasive species.

"If we leave a major vector, a major pathway like ballast water open, the other efforts are doomed to failure," said Ron Payer, fisheries chief for the Minnesota Department of Natural Resources.

Caught somewhere in the middle is the Great Lakes Commission, a bi-national agency created by the Great Lakes states and provinces to promote both the economic development and conservation of Great Lakes resources.

"We have not sorted out what the commission's position is, but it's becoming more and more apparent we have to have a solution to the ballast water problem, and we have to have a solution that respects the importance of the Great Lakes as a freshwater resource - a resource that we rely on for drinking water," said Tim Eder, the commission's executive director. "Whether that (rule) is federal, bi-national, international or just regional, at this point I don't care, as long as it happens quickly."

Weakley said he'd like to see the federal government pass tougher ballast regulations for the oceangoing vessels. Legislation to accomplish just that has languished in Congress for several years.

"It's not our fault," Weakley said of the species that have been brought into the lakes by the salty fleet. "But it's certainly become our problem."

See this earlier ILB entry from Sept. 20th.

Posted by Marcia Oddi on Monday, November 27, 2006
Posted to Environment

Ind. Decisions - "Gun makers appeal Hoosier's ruling" - a link to the opinion

Finally, the ILB has located a source for Lake County Judge Robert A. Pete's opinion in the Gary gun case, City of Gary v. Smith & Wesson, last referenced this morning in this ILB posting.

I just received a note from Matthew Heller, editor of www.onpointnews.com, a legal news website. He has posted a link to the decision on his website (direct link here, via the Brady Center) and will also be posting a story on the ruling shortly.

I would provide some quotes from Judge Pete's 7-page opinion, but unfortunately, it is a scanned document.

Posted by Marcia Oddi on Monday, November 27, 2006
Posted to Ind. Trial Ct. Decisions

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

For publication opinions today (3):

Gregory Terry v. State of Indiana, a 23-page opinion, Judge Robb concludes:

We affirm Terry’s convictions. First, we hold that the post-conviction court did not err in denying Terry’s petition for post-conviction relief because Terry received effective assistance of counsel at his trial and his due process rights were not violated by the State’s destruction of evidence after Terry’s trial. Second, we hold that the trial court properly instructed the jury on the reasonable doubt standard of proof. Third, we hold that the trial court properly admitted the in-court identifications of Terry, and that therefore any error in the admission of testimony relating to the pre-trial identifications was harmless.
In Knowledge A-Z Inc. v. Sentry Insurance, a 21-page opinion affirming the lower court, Judge Shaprnack's footnote on p. 1 ends with "Moreover, the 'scandalous statements' described in Sentry’s motion pertain to Knowledge’s interpretation of these documents. We deny Sentry’s Motion to Strike Undesignated Evidence and Scandalous Matters and its Supplemental Motion to Strike Citation to Undesignated Evidence in Appellant’s Reply Brief."

in 7-Eleven Inc., MDK Corp., C & J Realty, LP, and ENSR Corp. v. Larry Bowers and Kathy Bowers, et al, a 22-page opinion, Judge Barnes writes:

7-Eleven, Inc., and ENSR Corporation and MDK Corporation and C&J Realty, L.P., (collectively “the Defendants”) appeal the trial court’s certification of a class as defined by Larry Bowens, et al., (“the Plaintiffs”). We affirm. * * *

We believe that the issues certified by the trial court balance the value of allowing individuals to protect their own interests and the economy achieved by allowing the common issues to be resolved on a class action basis. The Defendants have not established that the trial court abused its discretion in finding that Indiana Trial Rule 23(B)(3) is satisfied.

Conclusion. The trial court did not abuse its discretion by limiting the issues to be pursued by the class or by finding that the requirements of Indiana Trial Rule 23(A) and (B)(3) had been satisfied. We affirm.

NFP civil opinions today (0):

NFP criminal opinions today (4) (link to cases):

Huey R. Seale, Jr. v. State of Indiana (NFP)

Kristofferson H. Porter v. State of Indiana (NFP)

Lee A. Wells v. State of Indiana (NFP)

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

Posted by Marcia Oddi on Monday, November 27, 2006
Posted to Ind. App.Ct. Decisions

Ind. Decisions - 7th Circuit issues one Indiana decision today

In Schneider National Carriers v. Nat'l. Employee Care (SD Ind., Larry J. McKinney, Chief Judge), a 13-page opinion, Judge Stykes writes:

This case concerns the lien rights of a worker’s compensation carrier under Indiana law. An Indiana trucker was injured on the job in an accident with another trucker and received worker’s compensation benefits. He then sued the tortfeasor’s employer. The worker’s compensation carrier initially sought intervention but later withdrew the motion after receiving assurances that its lien or subrogation rights under Indiana law would be protected. The employee and the tortfeasor then entered into a settlement without notifying or obtaining the consent of the worker’s compensation carrier. This was a violation of IND. CODE § 22-3-2-13, which specifically requires the written consent of the worker’s compensation carrier in order for a settlement to be valid.

The settlement agreement provided that the tortfeasor’s employer would assume responsibility for negotiating with the worker’s compensation carrier over its lien rights and promised to defend and indemnify the injured trucker against any liability or judgment for the carrier’s lien. The present suit was filed when these negotiations failed. The district court ordered judgment in favor of the worker’s compensation carrier against the tortfeasor’s employer on the basis of IND. CODE § 22-3-2-13 and the language in the settlement agreement by which the tortfeasor’s employer assumed responsibility for any judgment regarding the carrier’s lien rights. We affirm.

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

Ind. Decisions - "Gun makers appeal Hoosier's ruling"

No surprise here. The Indianapolis Star reports today, in a story by Karen Eschbacher, that "Gun makers appeal Hoosier's ruling.", that:

Gun makers are appealing an Indiana judge's first-of-its-kind ruling that a federal law shielding gun manufacturers from lawsuits is unconstitutional.

The ruling by Lake Superior Court Judge Robert A. Pete allows a lawsuit filed by the city of Gary to continue against 16 gun manufacturers and six Northern Indiana gun dealers. The suit, filed in 1999, alleges the manufacturers and gun dealers sold handguns they knew would end up in the hands of criminals.

Gun manufacturers had sought to have the case dismissed under the Protection of Lawful Commerce in Arms Act. Passed by Congress in 2005, the law grants the industry broad protections from municipalities and victims seeking damages for gun-related violence.

Pete ruled that the law violates the due process and separation of powers clauses of the U.S. Constitution.

"(It) is clearly an act which was passed in response to pressure from the gun industry," he wrote in his decision last month.

A few cases filed elsewhere against the gun industry have been allowed to proceed under an exemption in the law, but Pete's ruling marked the first time the act was declared unconstitutional.

For background, start with this ILB from Nov. 15 and this one from Oct. 30th. As noted, the ILB has been unable to obtain a copy of the trial court opinion.

Posted by Marcia Oddi on Monday, November 27, 2006
Posted to Ind. Trial Ct. Decisions

Law - Yet another story on golf carts [Updated]

The ILB has had a number of entries on the use of golf carts on city streets and roads. Sunday the Washington Post had this story, headed "Carts Are in Demand, but Who Said Anything About Golfing?" A quote:

Golf carts generally travel up to 18 mph. Authorities frown on driving them on roads with fast traffic. On certain kinds of public roads, though, "probably several hundred townships, cities and local governments have adopted rules" or regulations addressing the use of golf carts or similar vehicles, a lawyer with the National Golf Car Manufacturers Association said. And at least one local town has embraced them wholeheartedly.

Colonial Beach, Va., sits about 70 miles south of Washington, along the Potomac River, and has become a popular draw for weekend living. Since July 1, 2002, golf carts have been street-legal.

Owners must get carts inspected at designated stations. Among the requirements: lap belts, good brakes, proof of insurance and speed regulators (if the cart is gas-powered). Owners then take their paperwork to Town Hall to get their permit stickers. Cart riders also must stay off state Route 205, which runs on the edge of town.

"The first year, I have to admit, I thought, 'Boy this is a bogus thing,' " said Colonial Beach Mayor G.W. "Pete" Bone Jr. Now he is one of more than 400 estimated golf cart owners in town.

In the winter, riders can enclose the sides of carts with thick curtains akin to soft convertible tops and warm the inside of carts with a propane heater that fits into the drink holder. On Saturday, up to 25 Colonial Beach residents are expected to climb into their carts for an annual holiday parade, following Santa in their carts. This follows a golf cart scavenger hunt earlier in the year.

[Updated] A reader has sent me this story from the Portland IIndiana Commercial Review. Written by Rachelle Haughn, it reports on the Nov. 21st meeting of the Portland City Council. Some quotes:
A proposed list of restrictions on the use of golf carts in the city drew no opposition from community members.

The Portland City Council announced a list of possible restrictions for the use of carts on city streets Monday night. A handful of local residents attended the meeting and said they agreed with the proposed list. The restrictions include requiring the vehicles to stay off state highways, to be insured and for the drivers to have valid driver's licenses.

The city's attorney plans to draft an ordinance with these restrictions for council members to vote on at a future meeting.

Council president Glen Bryant read the list of proposed restrictions, and audience members were given the chance to comment on the list. None of the audience members spoke against it.

One audience member, however, said that no matter what regulations the city sets up, state law says it is illegal to drive golf carts on city streets and highways.

Portland resident Mark Iliff said he recently spoke with an Indiana State Police trooper who told him that state law prohibits the use of golf carts on all streets and highways.

"I'll look into that," said city attorney Bill Hinkle. * * *

Iliff voiced his concerns about the golf carts at a recent council meeting, prompting Bryant and council members Judy Aker and Bill Gibson to form a committee to review golf cart ordinances of other cities and towns.

The committee recommended that a city ordinance be formed with the following restrictions on the use of golf carts:

•All drivers must have a valid driver's license.

•The carts may not be driven on sidewalks. Carts also cannot be driven on West Votaw Street, Meridian Street or East Water Street (all state highways), except when crossing an intersection.

•The carts may only be driven between 30 minutes before dawn and 30 minutes after dusk unless the carts have headlights and taillights.

•Cart drivers must obey the posted traffic signs and regulations.

•Carts shall have no more passengers than the vehicles are equipped to handle.

•Slow moving vehicle signs must be displayed on all carts.

•The carts must be insured.

Posted by Marcia Oddi on Monday, November 27, 2006
Posted to Indiana Law

Ind. Law - Still more on: Communities seek to regulate outdoor wood-fired boilers

Updating this ILB entry from Nov. 5 are two stories this weekend on wood-fired boilers/furnances.

Lauri Harvey Keagle of the NWI Times has a story headed "Owners weigh in on furnace debate: NIRPC group moving forward on draft ordinance."

Meanwhile, the Cincinnati Enquirer yesterday (Sunday) had the ultimate story on wood-fired boilers. The very long report by Barrett J. Brunsman includes photos and graphics. A quote:

Manufacturers claim they can reduce the cost of heating a home.

But smoke from them is creating tension among neighbors - in both suburbs and the city.

"It's saved me quite a bit of money," Greg Cook says. "I'm trying to figure out why people don't like them."

Storer says his family's health and quality of life are being compromised. He says the smoke makes his Muscovy Lane yard stink, and it seeps into his living room and bedroom - even when windows and doors are closed.

At the heart of such disputes are property rights.

Owners of wood boilers say they have a right to do what they want on their land.

Neighbors say they have a right to enjoy their own yards and homes - but smoke doesn't recognize property lines.

The matter is complicated because there are no federal or state regulations for wood boilers, and few localities have laws covering them.

Posted by Marcia Oddi on Monday, November 27, 2006
Posted to Indiana Law

Ind. Courts - Another update on: Montgomery County judges issue mandate for staff raises

Updating this ILB entry from Nov. 2, Melissa Franklin of the Crawfordsville Journal-Review reports on the status of the Montgomery County Council's appeal, which is now before the Indiana Supreme Court.

Posted by Marcia Oddi on Monday, November 27, 2006
Posted to Indiana Courts

Ind. Courts - Sex offender sues Plainfield for anonymity

Richard D. Walton of the Indianapolis Star reports:

His name and address are listed on a sex-offender registry, available to anyone with a computer. But in a legal challenge demanding that he be allowed to visit Plainfield recreational facilities, he goes by "John Doe."

On Wednesday, the Indiana Court of Appeals will consider whether the Marion County man, convicted of child exploitation and possession of child pornography, can remain anonymous in pursuing his suit or, as Plainfield maintains, must reveal his identity in making his allegations in court.

The plaintiff sued the Hendricks County town over a 2002 ordinance banning people on the registry from public parks and recreational areas. Saying the prohibition violates the U.S. Constitution, the offender claims disclosing his name would put him and his young son at risk of harm from vengeful citizens.
Plainfield contends the plaintiff has not adequately substantiated that a threat exists or overcome the widely held presumption that litigants should reveal their identities.

There is a long tradition in U.S. courts of openness and disclosure, says Town Attorney Melvin Daniel. "You need to step up and let people know who you are and what your reasons are."

The appeal -- the lawsuit is on hold pending a ruling -- represents one of the few times in Indiana in which a court has been asked to define the standard by which plaintiffs should be allowed to sue anonymously. * * *

However the Indiana appeals court rules, both sides agree the decision could bear significance far beyond Hendricks County.

"No court in Indiana, of which Plainfield is aware, has established a test or formula to be employed when determining whether to allow a litigant to proceed anonymously," the city said in its court documents.

Posted by Marcia Oddi on Monday, November 27, 2006
Posted to Ind. App.Ct. Decisions

Ind. Law - "Wineries ‘live with’ new shipping rules"

Niki Kelly of the Fort Wayne Journal Gazette reports on the status of wine shipping in Indiana, "eight months after lawmakers negotiated a sticky compromise." Some quotes:

At least 16 wineries have been issued a direct wine shipper’s permit, according to the state Alcohol and Tobacco Commission.

The permit was created by the 2006 General Assembly to help settle one of the more confusing and contentious issues of the year.

“I don’t anticipate anything that would alter the situation,” said Larry Satek, owner of Satek Winery in Fremont and president of the Indiana Winegrower’s Guild. “As I understand it the ATC is happy with the law. While certainly it doesn’t make life easy for us the wineries, it is something we can live with.”

So far, everyone seems content to monitor the new law, and no one expects changes this session.

“I think most of the legislators would rather not go through this again. And the wineries would rather not,” said Jim Butler, owner of the Butler Winery in Bloomington. “The consensus is to see how this works for a couple of years.” * * *

[T]he biggest restriction in the law is there must be a face-to-face transaction between the customer and the winery before they can ship. The purpose is to make sure the buyer is 21.

For current visitors to the winery, the process is simple. They just fill out a form when on-site verifying their age and Indiana address, which allows all future wine orders to be shipped.

It’s more complicated for previous customers. Customers who had a transaction at the winery before April 1, 2006, must provide the seller with a verified statement before Dec. 31 that the consumer is at least 21.

The winery then has to provide the name and address of the consumer to the ATC by Jan. 15.

Butler said he has sent notes to his mailing list asking previous customers to fill out such an affidavit so the customer retains the ability for future shipping. He said a large percentage of the people don’t return the card. “We’re losing a big chunk of our mailing list,” he said.

But [Alcohol and Tobacco Commission Chairman Dave Heath] said the process is necessary. “If we didn’t do that, it would be the only sale of alcoholic beverages without a face-to-face transaction,” he said. “It’s not asking any more or any less of anyone. The cards aren’t very complicated to fill out.”

So far, all but one of the permits have been issued to in-state wineries. The Pine Ridge Winery in Napa, Calif., applied, but when contacted said it withdrew its permit.

There is still one pending lawsuit that could threaten the new system. It was filed by an Indiana University professor in federal court against the Alcohol and Tobacco Commission in May 2005.

At first, the lawsuit challenged the previous state law that barred out-of-state wineries from shipping to Indiana customers. But Heath said the focus has shifted with the new law in place, and the suit now claims the face-to-face requirement is too burdensome on out-of-state wineries.

Posted by Marcia Oddi on Monday, November 27, 2006
Posted to Indiana Law

Sunday, November 26, 2006

Ind. Gov't. - Could this be a coincidence?

Could this be a coincidence? So far I've read three stories today, from different parts of the state, all making a point that Indiana legislators are poorly paid.

From the Lafayette Journal and Courier, a story comparing the salary of "Purdue President Martin Jischke [who] was the highest paid state employee in Indiana in fiscal year 2005-06 with a base annual salary of $387,550" and that of "State Rep. Brian Bosma, [who was] speaker of the Indiana House of Representatives the past two years, [who] was listed at $50,964."

From the Indianapolis Star's "Behind Closed Doors,' under the heading "The Statehouse: big on glory, low on pay: Base pay for lawmakers hasn't changed since 1985, and the House speaker says it's tough to recruit people for office," and featuring remarks by House Speaker B. Patrick Bauer:

The legislative base pay is $11,600, which hasn't been changed since 1985, when it was increased from $8,000 annually. In addition to the base pay, lawmakers receive daily expense pay of $137 when they are in session and $54.80 per day when they are out of session. Some lawmakers also receive additional pay for serving in leadership positions.

That brought the average pay in 2005 to $44,954 -- a figure lawmakers say is misleading because much of that is eaten by expenses. [Isn't everyone's?]

Lawmakers have promised to eliminate a controversial health-care plan and to reconsider a controversial pension plan that gives them $4 of taxpayer money for every $1 they contribute.
However, in eliminating those perks, legislative leaders in the House and Senate said they might re-examine the whole legislative pay package.

Bauer said the low pay has made it hard to recruit candidates. "We cannot continue to beat up this institution," he said.

Told that the Illinois Legislature recently boosted its pay from $57,000 annually to $63,000, Bauer said: "Repeat those high numbers. Say it out (loud). Shout it out. What do you want me to say about that? I should move to Illinois?"

The headline to this story by Patrick Guinane in the NWI Times is: "Legislative pay paltry in Indiana: Illinois lawmakers to make $63,143, compared to $11,600 in Indiana." Some quotes:
For more than two decades now, the 150 members of the Indiana General Assembly have earned a base salary of $11,600, a relative pittance compared to legislative pay in neighboring states. Comparison shoppers need look no further than Illinois, where lawmakers recently approved a 9-percent, post-election pay raise that would increase legislative salaries from $57,619 to $63,143.

"We could send them five senators for that," said Sen. Frank Mrvan, D-Hammond.

The comment underscores the general response of shock and awe that Indiana lawmakers conveyed when told what their Illinois counterparts are bringing home.

"I've been looking into a transfer to Michigan, where the base salary is ($79,650)," joked Rep. Duane Cheney, D-Portage. * * *

The late Gov. Frank O'Bannon, a Democrat, vetoed raises of $7,400 in 2001. An independent commission recommended a legislative pay hike to $30,000 in 2004, but the suggestion was ignored amid sagging state finances and a contested governor's race.

The $11,600 base salary also must be put into context. Like counterparts in other states, Indiana legislators receive mileage reimbursements, expense allowances -- $54.80 to $137 a day -- and a select few earn leadership bonuses of up to $6,500. All told, no Indiana legislator took home less than $37,000 last year, and the average compensation was $44,363.

But those reimbursements, legislators said, don't make up for their paltry starting pay.

Lawmakers hold the power to raise their own pay, but many fear repercussions at the polls.

Sen. Robert Garton, R-Columbus, provides a cautionary tale. He led the Senate for 26 years but was ousted in the May primary after refusing to follow then-House Speaker Brian Bosma's decision to cancel a controversial health care plan that offers deeply discounted insurance to retiring legislators and dependents.

"(Garton) lost on that issue alone, but because of his loyalty to his colleagues in the Senate, he bit that bullet," said Rep. Charlie Brown, D-Gary.

Long, who succeeded Garton as Senate leader, has decided to end the health care program. And legislators could face additional pressure next year to dismantle their pension plan.

A move to permanently eliminate those perks, which legislators say were created to balance their meager salaries, could spark a larger debate this year. Still, lawmakers aren't holding their collective breath.

"It's a difficult subject," Long admitted. "It's one that people run for cover on."

A sidebar to the Times story reports:
Illinois figures include 9.3 percent pay raises that have been approved but not yet budgeted. Indiana statewide office salaries include $12,000 housing bonuses.

Illinois legislators receive a $125 per diem on session days. Indiana legislators receive $137/day, seven days a week during session, and $54.80, seven days a week the rest of the year. Illinois legislators receive leadership bonuses of $9,612 to $25,576. Indiana has far fewer bonuses, which range from $1,000 to $6,500.

Both states also reimburse for trips to and from the Statehouse; the rate is 44.5-cents per mile in Indiana.

How does it compare with other states? Michigan pays legislators a base salary of $79,650 a year. It's $45,569 in Wisconsin and $21,380 in Iowa.

What is missing here? The figures quoted above by the Times are from the National Conference of State Legislatures (NCSL). But what is missing is looking at the various states' legislative salaries within the content of "Full- and Part-Time Legislatures." The NCSL has a valuable page doing just that. It categorizes legislatures by the percentage of a full time job their work consumes.

For instance: "Red legislatures require the most time of legislators, usually 80 percent or more of a full-time job. They have large staffs. In most Red states, legislators are paid enough to make a living without requiring outside income." Michigan falls into this category: Illinois and Wisconsin fall into a subdivision labeled "red-lite."

Iowa falls into a category identified as: "Legislatures in these states typically say that they spend more than two-thirds of a full time job being legislators. Although their income from legislative work is greater than that in the Blue states, it's usually not enough to allow them to make a living without having other sources of income."

Where is Indiana? Farther down the scale, with the other "citizen legislatures." According to the NCSL: "In the Blue states, average lawmakers spends the equivalent of half of a full-time job doing legislative work. The compensation they receive for this work is quite low and requires them to have other sources of income in order to make a living. The blue states have relatively small staffs. They are often called traditional or citizen legislatures and they are most often found in the smallest population, more rural states."

A second table on the NCSL page compares average job time, compensation, and staff size by caegory of legislature.

So the two factors - "compensation" on the one hand, and the issue of "full-time vs. citizen legislature" on the other - would seem to be inextricably tied. Like the chicken and the egg, the question is: which comes first.

[A final note for now: Some where I read an editorial or opinion piece within the past few years talking about how the General Assembly should set out its pay in a straight-forward manner, like that of other state employees -- when I locate it, I will post it.]

Posted by Marcia Oddi on Sunday, November 26, 2006
Posted to Indiana Government | Legislative Benefits

Saturday, November 25, 2006

Law - Another important oral argument before the Supreme Court next week

David G. Savage of the LA Times writes:

WASHINGTON — The polar icecaps are melting, summers growing hotter and hurricanes becoming more powerful, but the Bush administration has insisted it cannot regulate the gases that many believe are responsible.

On Wednesday, a coalition of 12 states, led by California and Massachusetts, will try to persuade the Supreme Court that the nation's environmental regulators have the legal authority and responsibility to control greenhouse gas emissions linked to global warming — which many scientists describe as the biggest environmental threat to the planet.

It is a rare day when state lawyers travel to Washington hoping to win new powers for the federal government. As David Bookbinder, a Sierra Club lawyer, noted, "How often do federal authorities insist they lack the authority to do something?"

The administration's approach to another global issue — terrorism — has been to assert broad powers to act at home and abroad. On the environmental front, the administration says, it is studying the problem and "seeking a cooperative international approach to addressing global climate change," Solicitor General Paul Clement wrote in his brief to the court.

Putting new limits on motor vehicles and power plants is out of the question, at least for now, he added, saying, "the Environmental Protection Agency lacks authority under the Clean Air Act … to regulate greenhouse gas emissions."

The case before the Supreme Court tests that conclusion. It begins with a simple question: Is carbon dioxide an "air pollutant" under the Clean Air Act? The answer may determine not only whether federal regulators must tackle global warming, but also whether California and other states may do so on their own.

Four years ago, California adopted stricter rules. The state Legislature declared its intent to "achieve the maximum feasible and cost-effective reduction of greenhouse gas emissions" from motor vehicles. These standards for new cars and trucks are to take effect in 2009. * * *

Besides Massachusetts and California, the states challenging the Bush administration's policy are Connecticut, Illinois, Maine, New Jersey, New Mexico, New York, Oregon, Rhode Island, Vermont and Washington.

They were joined by the cities of New York, Washington and Baltimore, and several environmental groups.

The case, Massachusetts, et al. v. Environmental Protection Agency, et al., will be argued on Wednesday, Nov. 29th.

Also on Wednesday, another administrative law case, Watters, Linda (Commissioner, Michigan Office of Insurance & Financial Services) v. Wachovia Bank, N.A., et al., mentioned in the ILB entry earlier today, will be argued.

Note: The case links provided here lead to the Medill School of Journalist site with its resources. The ABA provides the briefs in both of these cases here - scroll down to the end of the month.

[More] How Appealing points to this freely available WSJ story today, titled "Environment: An Inconvenient Case for Supreme Court."

Posted by Marcia Oddi on Saturday, November 25, 2006
Posted to Administrative Law | Environment | General Law Related

Law - "Supreme Court to Hear Arguments Next Week in States' Challenge to 'Preemption' of Regulation"

"Case Tests Federal Supremacy Over Banks: Supreme Court to Hear Arguments Next Week in States' Challenge to 'Preemption' of Regulation," is the headline to this story by Kirstin Downey today in the Washington Post. Some quotes:

The federal government and the banking industry will square off next week in the Supreme Court against all 50 states and the District of Columbia in a mortgage-lending case that could have broad implications for business regulation.

The case, Watters v. Wachovia Bank, focuses on the lending industry. But the broader question it addresses is whether federal regulators can essentially tell state regulators to go away. It's a debate over what is called "preemption." How the court resolves the dispute could affect many other industries. * * *

Other businesses say the issue affects them, too. "The power of Congress (either directly or through administrative agencies) to preempt state and local law is vitally important to business and to the national economy," the U.S. Chamber of Commerce wrote in its brief. "Accordingly, the Chamber and its members have a substantial interest in ensuring that this Court properly resolves the issues raised in this case." * * *

The preemption issue has attracted the attention of many prominent jurists and legal scholars. At an American Enterprise Institute conference in April attended by former special prosecutor Kenneth W. Starr and appellate court judges Douglas H. Ginsburg and Stephen F. Williams, Epstein and other scholars proposed that other industries could also eek federal preemption from state and local laws.

Many states set their own rules on such issues as auto emissions and safety, workplace standards and product safety.

Michigan's side also has many supporters. Michelle Aronowitz, deputy solicitor general in the office of New York State Attorney General Eliot L. Spitzer, wrote the brief that was co-sponsored by the 49 other states, the District and Puerto Rico. It is rare for so many states to support a particular legal position, but they were eager to do so, said Dan Schweitzer, Supreme Court counsel of the National Association of Attorneys General.

"One of the roles of state AGs is protecting their consumers, and what the OCC has been trying to do is prevent state AGs from doing that with respect to a very important [group] -- state-chartered mortgage lenders that happen to be owned by banks," Schweitzer said.

Posted by Marcia Oddi on Saturday, November 25, 2006
Posted to General Law Related

Ind. Decisions - East Chicago case could resolve dispute in the federal courts re definition of money laundering

Joe Carlson of the NWI Times reports:

Government lawyers are hoping to use the case against East Chicago's "Puerto Rican Frankie" to resolve a dispute in the federal courts regarding the precise definition of money laundering.

In Indiana, Chicago and the rest of the 7th U.S. Circuit, it is not considered money laundering to pay for the operation of a criminal enterprise with the profits from that illegal business.

But In New Jersey and the 3rd U.S. Circuit, that is considered money laundering by federal law.

Because of the discrepancy, lawyers from the U.S. Solicitor General's Office in Washington, D.C., have decided to attempt to take the case of East Chicago's old tavern lottery before the U.S. Supreme Court. * * *

In 1998, Efrain "Puerto Rican Frankie" Santos was sentenced to 17 years in prison for running the illegal lottery known as "bolita" in bars and restaurants in East Chicago and throughout the region since the 1970s.

But Santos, 69, was released from prison in 2004 after U.S. District Judge James Moody ruled that Santos' actions were no longer considered money laundering based on a 7th Circuit ruling in the case in 2002.

It is still illegal to run an unsanctioned lottery, and Santos served his five-year prison sentence for that.

But Moody found that the government's case on the much harsher charges of money laundering had evaporated because of how the 7th Circuit justices interpreted the definition of "net proceeds" and "gross proceeds" in federal laws.

Prosecutors objected to Moody's decision, saying the 7th Circuit was the only one in the land in which judges believed that investing the profits of a criminal enterprise back into the illicit business was not money laundering. In New Jersey, Massachusetts and Minnesota, that was still considered money laundering.

Earlier this year, appellate justices in Chicago declined to overturn Moody's decision, which turned on whether the word "proceeds" in Congress' money laundering definition meant net or gross profits.

"Rather than vacillate over Congress' intent, it is better for our circuit here, having already considered and duly decided the issue, to stay the course at this juncture, for only Congress or the Supreme Court can definitively resolve the debate over this ambiguous term," the 7th Circuit Court's decision in Santos' case said.

The ruling freed Santos from jail.

Santos has said he's confident that even if the Supreme Court overturns that ruling, he could make a compelling argument that his age and status in the community should keep him out of jail.

Here is the ILB entry on the Aug. 25th 7th Circuit opinion in Santos, Efrain v. USA.

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

Ind. Decisions - More on "Court decisions ignite plea appeals"

Following up on its editorial last Sunday, Nov. 19th, the Fort Wayne Journal Gazette has a second editorial today on capped plea agreements. This one is headed "Bargains in guilty plea":

Recent appeals court rulings on plea agreements tip the scales of justice away from the people of Indiana and toward criminal defendants, but solutions won’t be easy.

Some plea bargains call for a client to plead guilty and allow the judge to determine the sentence. Those are called “open” agreements. Most are “capped”: A defendant pleads guilty to a certain crime or crimes and receives a sentence that is either specific or within a limited range – with a cap on the number of years served in prison. A judge who believes the sentence is too lenient or harsh can reject it.

Although they are often decried, plea agreements have a role in the criminal justice system, and limiting the number of jury trials to lower expenses and unclog the courts is just one benefit. Prosecutors accept plea agreements for a variety of reasons, including reluctant witnesses, the quality of the evidence and the certainty of an agreed-upon sentence over the uncertainty of a jury’s verdict.

For their part, criminals usually enter into the plea agreements because the ultimate sentence is less than what they could have if convicted at trial. That’s the “bargain” part of a plea bargain.

But now, higher Indiana court rulings have made those sentences less certain, taking the “agreement” out of plea agreement. The Indiana Court of Appeals has ruled that convicted criminals may appeal sentences they agreed to serve. The rulings open the door to more appeals that cost taxpayers.

Defendants have a right to a fair process. When they believe the process has not been fair, they have a right to an appeal. But when they agree to a sentence to avoid something worse, appealing that sentence seems unfair. And it strikes at the heart of plea bargains, tilting the entire advantage to the defendant.

Still, there are no easy answers. There may be occasions when a defendant had a lousy attorney, one who did a poor job of explaining what the plea agreement truly meant, and a judge who did not make sure the defendant understood. Should those defendants be allowed to appeal?

The Huntington County prosecutor is now including a sentence in capped plea agreements stating that defendants are giving up their rights to an appeal, and the Allen County prosecutor’s office is moving in the same direction. But it is questionable whether that language would survive court tests, especially when appeals question whether the defendant really knew what the agreement meant.

Indiana lawmakers would serve Hoosiers well by examining the issue and adopting strict language that sets narrow circumstances for criminal defendants to appeal the sentences they had agreed to accept.

Posted by Marcia Oddi on Saturday, November 25, 2006
Posted to Ind. App.Ct. Decisions | Ind. Sup.Ct. Decisions | Indiana Decisions

Ind. Decisions - "Clark judge erred, appeals court says"

Harold J. Adams of the Louisville Courier Journal, reports today on a NFP opinion issued by the Court of Appeals on Oct. 26, 2006 (while the ILB was out-of-town). The decision is Raemond Ellis v. State. From the story, headed "Resentencing ordered for robber: Clark judge erred, appeals court says," here are some quotes:

A Clark County judge abused his discretion last year in sentencing a man to 50 years in prison on a robbery conviction, the Indiana Court of Appeals ruled.

The three-judge appeals panel unanimously agreed with the defense argument that Circuit Judge Daniel Donahue used factors that weren't allowed or supported when he sentenced Raemond Ellis. * * *

The 50-year term imposed on Ellis, then a 19-year-old Jeffersonville resident, is the maximum allowed for robbery in Indiana. Up to 20 years of that is added for aggravating circumstances.

Donahue cited two such factors that he said outweighed the lone mitigating factor, that Ellis had no criminal history.

The judge found that Ellis was likely to commit another crime and also cited "the nature and circumstances" of the crimes against Nash, including the fact that Ellis admitted taking a cell phone from the victim's body.

Defense lawyer Mitch Harlan argued in the appeal that Donahue failed to adequately specify the facts he used in determining that Ellis was likely to commit another crime.

The appeals court agreed.

"Ellis made no admission regarding his likelihood to commit a future crime, nor did the jury make any such finding," Judge Edward Najam Jr. wrote in the court's opinion.

An aggravating factor must be established through one of those means before it can be used to increase a sentence.

The appeals panel also agreed with Harlan that taking the cell phone was an element of the robbery, not a separate fact that can be used to increase the penalty for the crime.

"We cannot say with confidence that the trial court would have imposed the same sentence" if Donahue had not used those two aggravators, Najam wrote.

The Indiana attorney general's office has until next week to decide whether to ask for a rehearing of the appeal or to ask the Indiana Supreme Court to review the appeals court's ruling.

Posted by Marcia Oddi on Saturday, November 25, 2006
Posted to Ind. App.Ct. Decisions

Ind. Courts - "Stolen Dinner Costs Mother Thanksgiving Behind Bars"

Here is a story that, it turns out, has appeared (without the ILB spotting it) in various forms in a number of papers (see Google results) before becoming a feature, along with large photo, in the Nov. 24th issue of the NY Times. The Times, in a story written by Eric Ferkenhoff , who apparently flew out to Valpo to cover it, gives it the full treatment. Some quotes:

Wanting a quick meal, Ms. Shelby said, she and her 15-year-old cousin had stopped at the restaurant, the Round the Clock, a popular spot in this pocket of northwest Indiana, on Aug. 12. After cleaning their plates, the pair simply got up and left. They made it to the parking lot.

“Our waitress chased her down,” said the restaurant manager, Milan Radinovich. “We called the cops, and the prosecutors and judge took it from there.”

This month, rather than simply sentence Ms. Shelby to six months of probation, which is not unusual for a minor offense, Judge David Chidester of Porter County Court went a step further. Harking back to the old idea that if a customer cannot pay his tab, he can work it off washing dishes, Judge Chidester gave Ms. Shelby a choice: work in the restaurant’s kitchen until the debt was paid, or spend a day in the lockup.

“We said no,” Mr. Radinovich said. “We wanted nothing to do with her. Get out. Stay out.”

So off to the county jail it was for Ms. Shelby, who had to leave the baby at home for a full day of washing dishes for inmates spending Thanksgiving behind bars.

After being dropped off at the jail promptly at 9 a.m. by her mother, who “was not very happy,” Ms. Shelby said, she donned the dark red jail garb and headed to the kitchen, where the turkey was being prepared.

Bob Kasarda, of the NWI Times, had the first coverage, on Nov. 10th:
VALPARAISO | A woman who dined and dashed will indeed have to do the dishes, a Porter County judge decided.

But instead of doing the dishes at the restaurant, 19-year-old Donna Shelby will be doing them in the kitchen of the Porter County Jail on Thanksgiving day.

Shelby, convicted Monday in a bench trial, offered no defense for fleeing the Round the Clock restaurant without paying her bill the afternoon of Aug. 12, Porter Superior Judge David Chidester said.

Restitution wasn't being sought, and the other typical alternatives just did not seem to fit the crime, Chidester said. What came to him was the memory of an old television show where the characters had to wash dishes to cover their restaurant bill.

So, the judge decided Shelby shouldn't just sit -- she should do her time washing dishes and working in the jail's kitchen.

She originally was given the choice of washing dishes at either the jail or Round the Clock on Thanksgiving day, but the restaurant did not want her back on the site, Chidester said.

Posted by Marcia Oddi on Saturday, November 25, 2006
Posted to Ind. Trial Ct. Decisions | Indiana Courts

Friday, November 24, 2006

Ind. Courts - Howard County prosecutor to work full time

Dean Hockney of the Kokomo Perspective reports today:

Howard County has not had a full-time prosecuting attorney for years, until now. James Fleming has announced that he will notify state officials of his intention to become a full-time prosecutor for the citizens of Howard County.

"I have to notify the Circuit Court and the Supreme Court of my intent sometime before the first of the year, and that looks like what I am going to do now that the election is over," said Fleming from his office in the Howard County Courthouse. "I have been prosecutor for 12 years. It seems that over those 12 years my duties and responsibilities in both the prosecutor's office and my civil practice have escalated to where I cannot do both and give the kind of attention to the details to each side that is required. So, it is time that I just have to go with one and not the other."

He explained that as prosecutor, the caseload has increased while his staffing of deputy prosecutors has not.

"Every year we get new laws to enforce," he said. "For example, when I took office there were no such things as laws for sex offenders or child pornography on the Internet. At the a same time, few laws come off the books. Each year we also get more and more committees and meetings to attend, like the Child Protection Services Team, Jail Committee, Courthouse Security Committee, Child Abuse Committee -- all of those things seem like more than the past year and have come into existence in the last few years."

Fleming said his civil practice, including his office building, will close as he works full-time for the taxpayers.

"My partner, Tom Simmons, is retiring, so we are going to sell our building," said Fleming. "I have a for sale sign on the building, and we will see if anyone wants to buy it. If we can't sell it, we may rent it."

Posted by Marcia Oddi on Friday, November 24, 2006
Posted to Indiana Courts

Ind. Courts - "New courts lead to changes in duties at Marion Superior Court"

Jon Murray of the Indianapolis Star writes today:

Several Marion County judges will shift to new benches when three new criminal courts start up Jan. 1.

Criminal justice officials hope the expanded slate of 23 criminal courts will further curb crowding at the Marion County Jail. "It adds more judicial resources to our criminal courts, which we hope will keep cases moving along," said Ron Miller, the Marion Superior Court administrator.

Inmate levels threatened to violate a federal court-imposed cap in August, prompting several changes across agencies to move cases more quickly and avoid early releases.

Earlier this year, the Indiana General Assembly approved three new superior courts and judges, bringing the total number of criminal and civil courts to 35. Marion County will get one more criminal court in 2009.

Each new court will handle certain cases:

• Judge Carol Orbison will oversee the county's seventh major-felony court. Those handle the most serious cases.

• Judge Steve Eichholtz will run a new court handling drug and gun cases; it will work in tandem with the existing drug court run by Judge William Young. Eichholtz has overseen night court this year.

• Judge John Hammel will oversee a court handling Class D felony cases.

Other courts will get new judges:

Judge Mark Stoner will move to major-felony Court 6, replacing departing Judge Jane Magnus-Stinson. She is leaving soon to become a magistrate at the federal court in Indianapolis.

Judge-elect Heather Welch will replace Stoner in D-felony Court 9.

Judge-elect Lisa Borges will replace retiring Judge Evan Goodman in D-felony Court 15. That court will move to a new space, which is still to be determined.

Judge-elect Jose Salinas will replace Orbison in Court 17, which handles domestic violence cases.

Gov. Mitch Daniels, a Republican, has until Jan. 31 to appoint a replacement for Magnus-Stinson. That judge must be a Democrat to maintain party balance. The court's Executive Committee has decided the appointee will replace Hammel in Court 21, which handles protective orders. * * *

Still undecided is whether night court -- created in August -- will continue in the same form, since no judge is signed up to run it after the end of the year. Miller said one alternative is adding evening sessions to several courts.

Posted by Marcia Oddi on Friday, November 24, 2006
Posted to Indiana Courts

Thursday, November 23, 2006

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

Recall the three-part NY Times series this summer on New York State's local court system? Here is a NYT quote from this Sept. 27th ILB entry:

Although they are key institutions of justice in more than 1,000 small towns and suburbs across New York, trying misdemeanor cases and lawsuits, a vast majority of the justices who run them are not lawyers, and receive only a few days’ legal training. The justices are often elected in low-turnout races, keep few records and operate largely without supervision — leaving a long trail of injustices and mangled rulings.
Yesterday the NYT ran this story by William Glaberson headed "Plan to Revamp N.Y. Justice Courts Is Announced." It begins:
ALBANY, Nov. 21 —New York’s top judicial officials outlined a plan today to begin revamping the state’s 300-year old system of town and village courts, which have been criticized for decades as outmoded, unsupervised and unfair.

The plan, announced here by the state’s chief judge, Judith S. Kaye, included some measures that critics of the courts have been recommending for years. Among them is a plan to require that the local courts — known as justice courts — begin keeping a word-for-word record of their proceedings, as every other court in the state does.

The justice courts are a sprawling system of more than 1,200 courts that are often the first — and frequently the only — stop in the legal system for cases outside New York City. Dating from Colonial times, the courts occupy something of a time warp, with justices who are often poorly trained, who may hold hearings in firehouses, town highway garages or their own kitchens, and who dispense a form of justice unlike any other in the state.

The judiciary’s plan also outlined steps to increase training for the justices, to overhaul their testing, and to provide the courts with computers, which many now lack. The officials said they would begin a new program to monitor compliance with constitutional guarantees of the right to legal counsel, to require annual audits of each justice court’s books, and to increase the court system’s supervision of the courts.

“These courts must provide the same high standard of justice the public expects and deserves from any court in New York,” Judge Kaye said.

But the judiciary’s plan stopped short of dealing with many aspects of the justice court system that attracted complaints — those that critics say leave the state with two justice systems, a modern one for the state’s cities and a second, much less sophisticated one for suburban and rural areas. The State Assembly is to begin a broad examination of the justice court system in a hearing next month.

The judiciary plan would not, for example, require that justices in the town and village local courts be lawyers, as they must be in every other court in New York. Three-quarters of the town and village justices are not lawyers; some are sewer workers, plumbers or farmers. That, the officials said in a report accompanying today’s announcement, is “among the great challenges in New York governance.”

The court system’s plan also would not change the fact that the courts are part-time, often conduct business in small, out-of-the-way spaces, and, uniquely in the state court system, are financed by towns and villages instead of the state court budget.

Posted by Marcia Oddi on Thursday, November 23, 2006
Posted to Courts in general

Ind. Decisions - "Bungled support case back in court"

The Fort Wayne Journal Gazettee has an interesting story today that begins:

The state appeals court has ruled a previous administration of the Kosciusko County child support office mishandled a child support case from the early 1990s.

The appellate court decision overturned a March ruling by Kosciusko Superior Judge Duane Huffer in a support case involving Sheila A. Puckett and Daniel W. Jones.

However, the ILB cannot locate a recent Court of Appeals decision to go with the story. Perhaps more later.

Posted by Marcia Oddi on Thursday, November 23, 2006
Posted to Ind. App.Ct. Decisions

Ind. Gov't. - Governor rejects letting legislature review welfare privatization deal

Lesley Stedman Weidenbener of the Louisville Courier Journal reports today on the pending billion dollar FSSA contract. Earlier stories may be located by typing "FSSA" in the ILB search box, including this one from Aug. 20th and this one from June 17th. Some quotes from today's story:

Gov. Mitch Daniels said yesterday that he won't give lawmakers a chance to review or approve a proposed $1 billion contract to let a private company handle eligibility for the state's welfare system.

Democratic leaders in the House and Senate have called for such a review. * * *

But Daniels said yesterday "if we decide -- as we may -- that this is the best way forward, I'm going to move right away."

A review panel that Daniels appointed has negotiated a proposed 10-year contract with a private partnership of companies led by IBM to take over intake services for the state's Medicaid, food stamps and Temporary Assistance for Needy Families programs.

The U.S. Department of Agriculture, which oversees the federal food-stamp program, is evaluating the contract and the state review panel is expected to make a final recommendation to the governor about whether to move forward with it in the coming weeks.

"The current system is indefensible," Daniels said yesterday. "It is wasting millions of tax dollars. It's been riddled with fraud. It has the worst welfare-to-work record in America. It has high error rates." * * *

House Speaker Pat Bauer, D-South Bend, has said repeatedly the chamber intends to exercise whatever oversight it can over the eligibility contract and other attempts to privatize parts of state government.

"We'd like the sun to shine in on those proposals," Bauer said Tuesday, when lawmakers met to organize for their 2007 session. "We'd like to see what they are and what they do to the people affected."

Later, Bauer said that while the governor has the authority to sign contracts, such as the one for eligibility services, the legislature funds them. He said Democrats weren't necessarily shutting the door on such proposals but simply want to have hearings on them.

Lawmakers, though, won't reconvene until January, and Daniels seemed determined to move ahead. He said the executive branch -- not the legislative branch -- is charged with administering government.

Posted by Marcia Oddi on Thursday, November 23, 2006
Posted to Indiana Government

Ind. Decisions - "Case of slain girl sent back to judge"

Jon Murray of the Indianapolis Star reports today on yesterday's Supreme Court ruling in Jeffrey Voss v. State - see ILB summary here. Some quotes:

An Indiana Supreme Court ruling Wednesday could kick-start the death-penalty case against the man accused of killing 12-year-old Christina Tedder.

Jeffrey Voss' case had stalled for 20 months after Marion County Prosecutor Carl Brizzi accused the judge of having a bias against the death penalty. Defense attorneys argued that Brizzi was simply shopping for a more favorable judge to handle the case.

In its 5-0 ruling, the high court sent the case back to Marion Superior Court Judge Grant Hawkins so he could decide whether to recuse himself.

The court found prosecutors' motion for a new judge insufficient and said Hawkins was mistaken when he appointed a special judge to rule on the issue for him. * * *

In May 2005, Hendricks Circuit Judge Jeffrey Boles ordered the case reassigned randomly after Hawkins asked him to consider Brizzi's request. Voss' attorneys asked the higher court to review that decision.

Prosecutors cited rulings in which Hawkins found the death penalty unconstitutional, comments to the media and previous work as an attorney defending clients in death-penalty cases.

Hawkins said Wednesday that he likely will ask each side to present arguments before deciding whether to oversee the case.

Posted by Marcia Oddi on Thursday, November 23, 2006
Posted to Ind. Sup.Ct. Decisions

Wednesday, November 22, 2006

Ind. Courts - Judge Penrod: "we do not have a functioning courthouse"

Andrea Howe of the Princeton Daily Clarion reports:

PRINCETON-Judge Earl Penrod left a courtroom waiting to appeal to county commissioners for more space.

“It's a critical problem,” he told commissioners at the North Annex Tuesday morning.

Penrod said the Superior Court alcohol and drug deferral program is at risk of losing state certification if proper space isn't found.

“That program is our first step toward a drug court or DUI court,” he told the board.

The judge told commissioners it's the county's duty to provide space for programs, but that program has money to pay rent if necessary.

He said he's going to ask the county council to appropriate money for a salary and rent for office space somewhere on the square.

Penrod said he's managed to keep the program certified by providing state officials with copies of news stories and other documents regarding the county's ongoing discussion about solving space problems, but he can't justify a lack of action after several years.

Penrod said other court program space is also unsuitable for public use, noting one public office is on the “way station” to the third floor of the courthouse.

The iron railed steps are not ADA compliant.

“It's simply inappropriate,” he said.

The Superior Court probation office is located in the jury room, Penrod said. “She has a desk with wheels on it. When there's a jury trial, we have to move it out.”

Penrod said the courthouse also poses an “incredibly difficult security issue,” noting that prisoners sit on the front row of seats in the gallery. There is no holding area to separate them from the public.

“I'm worried about the staff and I'm worried about the public,” the judge told commissioners.

“I'm going to do what I have to do. We've made do for 20 years in space that was never designed for its current use.

“I implore you to put this on the front burner,” he told commissioners. “It is absolutely upsetting to know that the only thing that ever seems to get addressed is appearance issues.”

Penrod said he's sometimes imagined being able to use the courthouse's exterior ledges for workspace to let the public know just how cramped court quarters are.

“There are people in the public who have no idea that we do not have a functioning courthouse,” he said.

“I'm not advocating a new building. I'm just telling you the situation is inappropriate and dangerous. It's got to be addressed.”

“I agree with you 190 percent,” commissioner Don Whitehead told the judge. “It's not safe.”

Commissioner Bob Townsend asked for some ideas to solve immediate needs.

Penrod suggested using the law library room, which is seldom used by the public, for probation office space.

“The problem is very apparent, and we all know it,” acknowledged commissioner Sherrell Marginet.

Posted by Marcia Oddi on Wednesday, November 22, 2006
Posted to Indiana Courts

Courts - Linking to 7th Circuit opinions can be tricky

The ILB has been tricked up by this. You cannot just link to 7th Circuit opinions, like you can to those of any other court. If you do the link will expire in a few hours. You have to take care to create a "permanent" link. All this was explained by Howard Bashman in a How Appealing entry yesterday. A quote:

[J]ust as the U.S. Court of Appeals for the Seventh Circuit is fortunate to have on its court some of the best writers and best legal minds in the entire federal judiciary, the Seventh Circuit is also the only federal appellate court that makes it nearly impossible to link to its own rulings.
My opinion: The 7th Circuit needs a good technical person.

Posted by Marcia Oddi on Wednesday, November 22, 2006
Posted to Ind. (7th Cir.) Decisions

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

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

Nearly three 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 Wednesday, November 22, 2006
Posted to Indiana Transfer Lists

Ind. Decisions - List of Court of Appeals NFP opinions issued for the week ending November 22, 2006

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

Posted by Marcia Oddi on Wednesday, November 22, 2006
Posted to NFP Lists

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

For publication opinions today (2):

In Jesus Arrieta v. State of Indiana (interlocutory appeal from the Clark Superior Court, Judge Blau), an 11-page, 2-1 opinion (with dissent beginning on p. 7), Judge Baker writes:

Appellant-defendant Jesus Arrieta brings this interlocutory appeal from the trial court’s order refusing to appoint an interpreter at government expense. Arrieta argues that a non-English-speaking criminal defendant is entitled to the appointment of an interpreter at government expense whether or not the defendant has established indigency. Finding that this is a matter best left to the legislature and that nothing in statutory or constitutional law requires a trial court to pay for an interpreter for a defendant who has not established financial need, we affirm the judgment of the trial court. * * *

CRONE, J., concurs.
VAIDIK, J., dissents with opinion:

I must respectfully dissent. “The right to a fair trial is a fundamental liberty secured by the Fourteenth Amendment.” Estelle v. Williams, 425 U.S. 501, 503 (1976). While the majority recognizes that in some cases “[an] interpreter is necessary to implement fundamental notions of due process such as the right to be present at trial, the right to confront one’s accusers, and the right to counsel,” slip op. at 4 (quoting Martinez Chavez v. State, 534 N.E.2d 731, 736 (Ind. 1989)), it goes on to hold that a non-English speaking defendant is required to pay for this service unless he or she can make a showing of financial need. I disagree. * * *

I acknowledge the added financial strain that court-provided interpreters could put on Indiana’s cash-strapped counties. Nonetheless, some rights transcend fiscal considerations and are so important as to be considered fundamental. As the Indiana Supreme Court has recognized, “[an] interpreter is necessary to implement fundamental notions of due process.” Martinez Chavez, 534 N.E.2d at 736. I would reverse the decision of the trial court and order it to appoint an interpreter to serve Arrieta in all future court-related proceedings in this cause. I would also hold that if Arrieta is eventually convicted, the trial court may, in its discretion, order Arrieta to pay the costs of his prosecution, including the cost of the interpreter.

In State of Indiana v. Misty Jackson & Charles Jackson, II, a 7-page iopinion, Judge Crone writes:
On January 3, 2006, Misty and Charles filed motions for discharge and dismissal pursuant to Criminal Rule 4(C). They asserted that the State had failed to bring them to trial within the seventy-day time frame of Criminal Rule 4(B)(1), which according to them started October 20, 2005, when the trial court clerk issued a certification of venue, and expired December 29, 2005. On January 6, 2006, the State filed a motion to set trial date. Also on that date, the trial court held a hearing on Misty’s and Charles’s motions for discharge and dismissal. On January 9, 2006, the trial court granted those motions. The State now appeals. * * *

The trial court did not err in granting Misty’s and Charles’s motions for discharge and dismissal. We therefore affirm.

NFP civil opinions today (0):

NFP criminal opinions today (2) (link to cases):

Charles Moore v. State of Indiana (NFP)

Randall McKinney v. State of Indiana (NFP)

Posted by Marcia Oddi on Wednesday, November 22, 2006
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Supreme Court issues one today

In Jeffrey Voss v. State of Indiana (Interlocutory Appeal from the Marion Superior Court No. 49G02-0412-MR-232452 Hon. Judges Robert R. Altice, Jeffrey V. Boles, and Grant W. Hawkins), a 12-page, 5-0 opinion, Jusrtice Dickson writes:

Defendant Jeffrey Voss, charged with murder and facing the State's request for the death penalty, challenges proceedings culminating in a change from the judge originally assigned to this case. This interlocutory appeal is brought pursuant to the trial court's unrestricted grant of the defendant's request for certification of an interlocutory appeal on the following issues: "whether the State's submission was adequate as a matter of law to challenge the bias of the judge; whether a special judge may be appointed, over objection, to decide the recusal of a judge; and whether the finding of recusal by the special judge was sufficient as a matter of law." Appellant's App'x. at 224. We find both that the State's motion for change of judge was insufficient and that it was error to appoint a special judge to decide the motion. * * *

Conclusion. We vacate both the May 26, 2006, order of Judge Boles implicitly granting the State’s motion for change of judge and ordering reassignment of this case to a different judge, and the order of Judge Hawkins initially transferring the case to Judge Boles for ruling on the State’s recusal motion. We remand this case to Judge Hawkins so that he may personally consider whether to disqualify himself from the case if he deems it appropriate pursuant to Canon 3(E) of the Code of Judicial Conduct, and for any further proceedings consistent with this opinion.

Posted by Marcia Oddi on Wednesday, November 22, 2006
Posted to Ind. Sup.Ct. Decisions

Ind. Decisions - 7th Circuit issues one Indiana opinion today

In U.S. v. Daniel Groves Sr. (ND Ind., Allen Sharp, Judge), a 34-page opinion, Judge Rovner writes:

Daniel Groves was charged in a two-count indictment under the “felon in possession” statute with possessing a firearm and possessing ammunition. See 18 U.S.C. § 922(g)(1). A jury convicted him on both counts. He challenges his conviction on the firearm count on the ground that the evidence was insufficient to demonstrate that the firearm traveled in interstate commerce. On the ammunition count, he faults the district court for denying his motion to suppress evidence obtained in a warrantless search of his apartment. He also complains of evidentiary errors and mistakes in calculating his sentence. This is one of those rare cases in which a defendant succeeds in demonstrating that the evidence was insufficient to prove an element of the crime. We therefore reverse in part, affirm in part and remand to the district court for further proceedings consistent with our opinion. * * *

On remand, the district court should enter fact-findings in support of its ruling on the motion to suppress, and determining whether Foster’s consent was voluntarily given. If Foster’s consent was not voluntary, the suppression ruling cannot stand, and the conviction on the ammunition count would be in jeopardy. We do not mean to suggest a particular outcome for the motion to suppress; we note only that, as it stands, there is insufficient fact-finding and insufficient analysis for appellate review. It is possible that after the court makes the appropriate findings in support of its decision to deny that motion, defense counsel may withdraw its objection to the ruling; it is also possible there may still be some non-frivolous basis for further review. We reverse the conviction on Count I, the firearm possession charge, for the reasons stated above. In light of that reversal, the district court should resentence Groves. At any new sentencing hearing, the district court should allow an appropriate Rule 32 colloquy before imposing sentence. In all other respects, we affirm.

Posted by Marcia Oddi on Wednesday, November 22, 2006
Posted to Ind. (7th Cir.) Decisions

Courts - Yet more on: Illinois chief justice doesn't just get mad, he sues

Adding context to the story covered here and here by the ILB, the NY Times had an excellent report by Katharine Q. Seelyeon Monday headed "Clash of a Judge and a Small Paper Underlines the Tangled History of Defamation" in which she compares and contrasts a 1983 case, dismissed only this summer after years of litigation, with the Illinois case, which is now 3 years into litigation, but has a possibly equally lengthy road before it.

Posted by Marcia Oddi on Wednesday, November 22, 2006
Posted to Courts in general

Ind. Courts - "Allen courts to ban cell phones, all electronics"

Dionne Waugh of the Fort Wayne Journal Gazette reports today:

Allen County courthouses will ring in the new year in silence as officials implement a policy banning all cell phones, pagers and electronic devices.

The devices won’t be allowed inside the Allen County Courthouse; the Bud Meeks Justice Center where misdemeanor and traffic court is conducted; the Allen County Juvenile Center; and the Courthouse Annex, which is where the Small Claims Division is located.

The policy takes effect Jan. 2, though officials have already posted notices throughout the courthouses.

“We realize this is a significant step, and it will present an inconvenience to some individuals,” Allen Superior Chief Judge Fran Gull said. “However, the interests of safety and security outweigh such considerations.”

Only employees and attorneys with approved county-issued photo identifications will be exempt from the policy.

Allen Superior Magistrate Robert Schmoll said two problems have led to the change.

“First, there’s the disruptive aspect, which is much worse in (misdemeanor and traffic court),” he said. “We have to stop a couple of times a morning because someone can’t read a sign.”

Signs stationed outside each courtroom in every building instruct people that all electronic devices must be turned off. When the phones have rung, bailiffs have confiscated them. The phones are usually returned later that day or the next. However, there is an exception.

“Now, they’re able to take pictures (using cell phones). Based on that, we’ve had instances of people taking pictures of witnesses, prosecutors, police officers. That brought … more cause for concern,” he said.

People who’ve been caught taking pictures or video inside the courtrooms have had their phones destroyed on judges’ orders. Indiana law does not allow cameras inside state courtrooms.

Cell phones are already banned in most federal courthouses and more state courthouses are going this way as well, said Schmoll, who has noticed the problem in the past five years.

Posted by Marcia Oddi on Wednesday, November 22, 2006
Posted to Indiana Courts

Ind. Courts - Prominent Indy psychiatrist Larry Davis dies piloting flight from Illinois [Updated]

Vic Rychaert of the Indianapolis Star reports today:

Dr. Larry Davis, who served as an expert witness in hundreds of criminal cases, was the only person onboard the Piper Cherokee, authorities say. The plane went down about 5:30 p.m. Monday in a field south of Milford, a few miles west of the Indiana border. * * *

"This is horrible," said Bob Hammerle, an Indianapolis defense attorney. "Aside from the obvious personal tragedy, it's one of those losses that creates a professional void. There isn't anyone else that operates at his level."

Davis, 63, was thrown from the cockpit, Cheatum said. The Iroquois County Sheriff's Department and the National Transportation Safety Board were investigating Tuesday trying to piece together what went wrong.

Sharon Farmer, Davis' secretary for 25 years, described Davis as kind, loving and caring. He loved to bake cherry pies, make his own noodles, and even baked and decorated the cake for his daughter's wedding, Farmer said. "He loved his work; he loved his family," Farmer said.

Davis, married to wife Betty, has two grown children, Farmer said. He also was proud of his two granddaughters.

For decades, Davis testified on behalf of psychotic and sexually deviant criminals in numerous high-profile cases in Central Indiana. Davis was chief psychiatrist for the defense in the case of Tony Kiritsis, who made national headlines when he wired a sawed-off shotgun around the neck of an Indianapolis mortgage company executive in 1977 and paraded him through Downtown streets.

"He was not only the very best forensic psychiatrist in Indiana and one of the best in the entire country, he was an excellent psychiatrist who helped thousands of people suffering from every kind of psychiatric disorder imaginable," said J. Richard Kiefer, one of Kiritsis' attorneys.

When I moved into the downtown Indy neighborhood now known as the Old Northside in the late 1970s, Larry and his brother Jim and their families were already living here and had been, I believe, since their med school days. It was thanks to their early efforts at historic preservation, running against a nationalwide craze for "urban renewal" (by demolition), that a number of magnificent historic homes north of the swath cut by the building of I-70 were saved from arson or the wrecking ball. Larry Davis was my neighbor and friend. There will be no other like him. My condolences to his wife Betty and the Davis family.

[Updated 11/23/06] WISH TV's Leslie Olsen had this report Tuesday evening, including:

"It was very sad news," said attorney Jim Voyles.

Voyles, a local defense attorney, and Marion County criminal court Judge Patricia Gifford say his psychiatric expertise will be missed locally.

Davis' web site says he testified in at least 250 cases.

"Got it down to the level that we people could understand," Gifford said.

Voyles called him one of the most intriguing people he has ever known.

"He could make jewelry. He was a black diamond skier. He was an excellent bike rider. He was a musician. He was a great doctor. So he had many facets to his personality that were very positive," Voyles said.

Here is Larry M. Davis' obituary from the Nov. 24, 2006 Star.

Posted by Marcia Oddi on Wednesday, November 22, 2006
Posted to Indiana Courts

Tuesday, November 21, 2006

Ind. Decisions - Court of Appeals issues 2 today (and 12 NFP)

For publication opinions today (2):

Charles Beaty v. State of Indiana

Ronald Hines v. State of Indiana

NFP civil opinions today (2):

Kent Shafer v. Amber Shafer (NFP)

Melvin See v. Pamela Curtis and Fortis Insurance Benefits Company (NFP)

NFP criminal opinions today (10) (link to cases):

Tony L. Ross v. State of Indiana (NFP)

Anthony Jones v. State of Indiana (NFP)

Jeffrey Dowers v. State of Indiana (NFP)

Michael Lewis v. State of Indiana (NFP)

Jeremy Schulien v. State of Indiana (NFP)

Quincy Woodard v. State of Indiana (NFP)

Amanda Jarred v. State of Indiana (NFP)

Adrian Lotaki v.State of Indiana (NFP)

Raymond Howard-Lear v. State of Indiana (NFP)

Bruce Jones v. State of Indiana (NFP)

Posted by Marcia Oddi on Tuesday, November 21, 2006
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Supreme Court issues two today

In Shawn Prickett v. State of Indiana, a 12-page, 5-0 opinion, Justice Sullivan writes:

Defendant Shawn Prickett was convicted of child molesting for having sex with a 13-year-old girl. The presumptive sentence for this crime is 30 years. Prickett was sentenced to 40 years and ordered to pay restitution and register as a sex offender. He contends that the evidence at his trial was insufficient to support his conviction, but we find that there was ample evidence to support the jury’s verdict. He also argues that the restitution and registration orders were im-posed absent jury findings required by Blakely v. Washington, 542 U.S. 296 (2004), but we hold that Blakely imposes no such requirement. We do agree with Prickett that the factors relied on by the trial court did not justify increasing the sentence above 30 years. * * *

[Justice Boehm, concurring in the result, writes] But for Blakely, I would not agree that Prickett’s sentence must be reduced. However, after Blakely, I believe that Prickett’s enhanced sentence violates the Federal Constitution.

In Angela Duncan v. State of Indiana, a 9-page, 4-1 opinion (Justice Dickson dissents without opinion), Justice Boehm writes:
We hold that the Court of Appeals erred in finding a defendant’s Blakely claim to be waived when it was included in her initial brief, which was filed after this Court’s Smylie deci-sion. We also hold that the Defendant’s relatively minor prior convictions do not justify enhancing the sentence.

Posted by Marcia Oddi on Tuesday, November 21, 2006
Posted to Ind. Sup.Ct. Decisions

Environment - Astonishing report about U.S. EPA trashing its library collection

A news release from the Public Employees for Environmental Responsibility begins:

EPA IS HASTILY DISPOSING OF ITS LIBRARY COLLECTIONS — Orders to Trash Library Holdings Stirs Protests

Washington, DC — The U.S. Environmental Protection Agency is frantically dispersing its library collections to preempt Congressional intervention, according to internal emails released today by Public Employees for Environmental Responsibility (PEER). Contrary to promises by EPA Deputy Administrator Marcus Peacock that all of the former library materials will be made available electronically, vast troves of unique technical reports and analyses will remain indefinitely inaccessible.

Meanwhile, many materials formerly held by the Office of Prevention, Pollution and Toxic Substances (OPPTS) Library, in EPA’s Washington D.C. Headquarters, were directed to be thrown into trash bins, according to reports received by PEER. This month, EPA closed the OPPTS Library, its only specialized library for research on health effects and properties of toxic chemicals and pesticides, without notice to either the public or affected scientists.

“By its actions, it appears that the appointed management at EPA is determined to actually reduce the sum total of human knowledge,” stated PEER Executive Director Jeff Ruch. “EPA is not an agency renowned for its speed, so its undue haste in dumping library holdings suggests a political agenda rather than anything resembling a rational information management plan.”

See also this report in yesterday's Boston Globe, including the following:
FROM THE moment early in his first term when President Bush reneged on his campaign promise to regulate carbon dioxide emissions, the Bush years have not been good ones for the Environmental Protection Agency. The latest blow has been the shutdown of five of the agency's regional libraries and the limiting of hours at others, including the branch in Boston. * * *

Some of the most important users of the libraries are EPA employees themselves, as they prepare to prosecute cases against environmental scofflaws. The shutdown of the agency's main library in Washington, regional libraries in Chicago, Kansas City, and Dallas, and a library for evaluating new chemicals, is an act of unilateral disarmament in the lopsided contest between polluters and government regulators who lack the support of the White House. A 2004 report by the EPA itself found that the benefit-to-cost ratio for its library services ranged between 2 to 1 and 5.7 to 1. A memo this August from the EPA's own Office of Enforcement and Compliance Assurance expressed concern that the loss of librarians' institutional memory and expertise would hamper its work.

Posted by Marcia Oddi on Tuesday, November 21, 2006
Posted to Environment

Ind. Gov't. - Public meeting agendas may be intentionally vague

The Johnson County Daily Journal had an opinion piece yesterday by the editor, Scarlett Syse, that included the following:

Agendas put out by public boards in advance of meetings can be treasure troves of information for the public and reporters. They can also be frustratingly vague, maybe even intentionally nebulous.

Agendas note the time and place of meetings and list what will be debated, voted on and reported, usually in the order of the discussion. Good agendas allow for well-run and efficient meetings and give board members and the public at least a little time to prepare for issues slated to be debated.

Not-so-good agendas are filled with bureaucratic jargon, making it impossible for most people to figure out what will be discussed, proposed or voted on. Others are vague, maybe listing only "old business" or "new business." Some government boards don't put out agendas.

Still others are full of solid information for the public. They are detailed, enlightening and even newsworthy. Really, really good agendas are accompanied by the reports and documents so the public can better follow along at meetings and understand what is being discussed. How many times have you been to a government meeting and officials might as well be speaking in Greek? Or the discussion assumes that everyone has the background about an issue.

Each Saturday, we run a list of government meetings scheduled for the upcoming week. Until a few years ago, we listed only the time, date and place of a meeting. We have beefed that up and included a listing of agenda items when they are available. Readers need more information than just the meeting time. We also comb the agendas for story ideas.

Good public officials know there should be accountability and transparency in government. Good, clear agendas are a place to start.

Posted by Marcia Oddi on Tuesday, November 21, 2006
Posted to Indiana Government

Ind. Law - More on: "Jeff might ban sex offenders from parks"

Updating this ILB entry from Sunday is this Ben Zion Hershberg report today in the Louisville Courier Journal. Some quotes:

The Jeffersonville City Council voted unanimously last night, in the first of three required votes, to adopt an ordinance banning sex offenders from city parks.

Violators found in the parks could be fined $100 to $2,500 and charged with criminal trespass.

Keith Fetz, the council member who proposed the ordinance, said it could get its final reading Dec. 4 and be in effect in early January, after it is advertised for 30 days.

"We haven't had a problem" with sex offenders in Jeffersonville, Fetz said, adding that the ordinance is intended to prevent problems. * * *

Ken Falk, the legal director of the Indiana Chapter of the American Civil Liberties Union, said last week that he believes the proposed ordinance could be challenged under the Indiana Constitution.

"People have a right to use public parks," Falk said, adding that if Jeffersonville adopts the ordinance his organization would be willing to represent residents who challenge it.

Lawyer Larry Wilder, who wrote the proposed ordinance, told the council last night that Falk has lost several cases based on his view that there is a fundamental right to the use of public parks.

And in two cases, Wilder said, the 7th U.S. Circuit Court of Appeals ruled against Falk's argument.

"I can't guarantee you won't have litigation," Wilder told the council. "But if you do," he said, he believes the ordinance will be upheld because it is written carefully "to effect a public policy."

Posted by Marcia Oddi on Tuesday, November 21, 2006
Posted to Indiana Law

ind. Courts - "Gary attorney postpones sentencing again"

"Gary attorney postpones sentencing again" is the headline to this story by Joe Carlson in the NWI Times. It begins:

HAMMOND | Gary lawyer Jerry Jarrett has come one step closer to a federal jail cell, although the defense attorney says he still has high hopes of convincing a judge to toss his conviction for laundering clients' drug money.

The U.S. Supreme Court decided last week not to hear Jarrett's argument that he should be freed because he claimed he was the victim of vindictive prosecution in 2004.

One day after the Supreme Court denial, First Assistant U.S. Attorney David Capp recommended that a judge sentence Jarrett to serve more than five years in prison and pay at least $92,000 in restitution.

Posted by Marcia Oddi on Tuesday, November 21, 2006
Posted to Indiana Courts

Courts - Illinois attorney is charged with battery in court outburst

The Chicago Tribune reports today:

In perhaps the first outburst of its kind in a decade or more, an attorney has been accused of punching a courtroom deputy in Domestic Relations Court and breaking one of the officer's ribs, authorities said Monday.

Jonathan G. Anderson, 53, of the 400 block of Briar Place in Itasca, was representing a client in a divorce case Friday at the Daley Center when some rulings began to go against him, authorities said.

Anderson yelled at Domestic Relations Judge James Donegan, 78, who ordered the lawyer from his courtroom.

Authorities said Anderson then shouted profanities at the judge, knocked over a courtroom lectern and threw papers from a desk onto the floor.

Sheriff's Deputy Eric Gross, 42, tried to take Anderson outside, but the attorney "punched the deputy in the left rib cage using a closed right fist," said sheriff's spokesman Bill Cunningham.

Gross subdued Anderson and put him in handcuffs, Cunningham said.

Posted by Marcia Oddi on Tuesday, November 21, 2006
Posted to Courts in general

Monday, November 20, 2006

Ind. Decisions - Court of Appeals issues 8 today (and 13 NFP)

For publication opinions today (8):

Michael R. Daffron v. Deputy Richard Snyder, et al.

Trent Harris, Sr. v. Marion County Department of Child Services and Child Advocates, Inc.

Larry L. Thompson v. Deanna Stull

Sandra Brinkman and Mark Brinkman v. Anne Bueter, et al.

Anthony McCoy v. State of Indiana

Jack E. Primmer v. State of Indiana

Mary Richardson v. State of Indiana

Adrian Reed v. State of Indiana

NFP civil opinions today (5):

In the Matter of J.H. (NFP)

Center Peace Ministries, et al v. Assemblies of God Financial Services. (NFP)

J.R. Bozarth v. Todd & Langley Construction and Lifeway Baptist Church of Bloomington, Inc. (NFP)

Latia Campbell v. Marion County Department of Child Services and Child Advocates, Inc. (NFP)

Cris Renn v. Tammy L. Hughes (NFP)

NFP criminal opinions today (8) (link to cases):

Donald L. Adams v. State of Indiana (NFP)

Wendell A. Lake v. State of Indiana (NFP)

Giuseppe Presutto v. State of Indiana (NFP)

Douglas A. Holtke v. State of Indiana (NFP)

Frederick Johnson v. State of Indiana (NFP)

Nicole Paschall v. State of Indiana (NFP)

Charles Sanders v. State of Indiana (NFP)

Otis Chandler v. State of Indiana (NFP)

Posted by Marcia Oddi on Monday, November 20, 2006
Posted to Ind. App.Ct. Decisions

Courts - Electronic Filing on Federal Appeal: What Does the Future Hold?

Howard Bashman of How Appealing, who writes a weekly column published at Law.com, this week has an excellent article on issues involved in moving the federal appeals courts to electronic filing. His discussion of appendices and trial transcripts is particularly thorough, as well as his differentiation between scanned and "native" PDF documents, a distinction which often is not appreciated by non-end-users.

Posted by Marcia Oddi on Monday, November 20, 2006
Posted to Courts in general

Ind. Courts - More on: Centralize many of Lake County's 27 courts?

Following up on this ILB entry from Nov. 11th and this one from Nov. 13th, the NWI Times had an editorial yesterday titled "Lake County needs fewer courthouses, fewer courts." Some quotes:

A review of Lake County court operations has led to a politically sensitive suggestion: Consolidate the 27 courts and possibly move some to a central location, possibly Crown Point.

It's a solid idea.

The theory behind operating four courthouses -- in Crown Point, East Chicago, Gary and Hammond -- is to bring the government to the people, making essential services more accessible.

But there are drawbacks to that approach, too.

The National Center for State Courts, working on the privately funded Good Government Initiative study, told local judges consolidating the courts might increase their efficiency.

Gary, Hammond and East Chicago are not far apart. It makes little sense to maintain courthouses in all three cities. If a presence in northern Lake County must be maintained, pick one of the cities for a courthouse and jettison the other two courthouses.

"What I think the national center is looking to implement is more cohesiveness: centralized administration, centralized probation departments, centralized public defender staffs, centralized courts," said Chief Lake County Superior Court Judge John Pera.

The consultant's report hasn't been released, but the concept of consolidating courts is very promising.

For criminal courts, especially, it would be easier for logistics -- including court security and transporting prisoners -- to have fewer buildings to worry about.

Posted by Marcia Oddi on Monday, November 20, 2006
Posted to Indiana Courts

Ind. Courts - Court of Appeals to hold oral argument at DePauw University in high profile case

The DePauw University News reports:

November 18, 2006, Greencastle, Ind. - The Indiana Court of Appeals will come to campus on Tuesday, November 28 to consider an appeal by a man convicted of murder for fatally shooting a 15-year-old boy who threw eggs at him. Members of the DePauw University and Putnam County communities are invited to attend the oral arguments in the case of Donald E. Ware, which will begin at 10 a.m. in the Emerson Room (lower level) of Walden Inn. Normal courtroom rules of decorum will apply.

The department of political science at DePauw University is hosting the event, which represents the third time in as many years the Court of Appeals has heard oral arguments here.

Donald Ware, 37, was charged with murder, battery, two counts of criminal recklessness, and possession of marijuana in the July 24, 2005 killing of 15-year-old Brandon Dunson-Taylor and the wounding of a 17-year-old. They were among a group of young men who were throwing eggs at random vehicles on the west side of Indianapolis that night and hit Ware as he drove by in his truck. In December
2005, a Marion Superior Court jury found Ware guilty of all charges. He was sentenced to 70 years in prison in a case that received significant attention from the news media.

A summary of the case states, "[Ware] appeals, alleging that physical evidence obtained via a search warrant and evidence of statements he made after his warrantless arrest should be suppressed because the police lacked probable cause to support the search and arrest. Ware also alleges that there is insufficient evidence to support his convictions, that the trial court's admission of certain evidence not disclosed during discovery denied him a fair trial, and that his sentence of seventy years is inappropriate."

A three-judge panel of L. Mark Bailey, Margret G. Robb and Terry A. Crone will hear the case. * * * The Indiana Court of Appeals regularly holds oral arguments in communities across Indiana in an effort to bring the workings of the judicial system closer to the people it serves.

Posted by Marcia Oddi on Monday, November 20, 2006
Posted to Indiana Courts

Sunday, November 19, 2006

Ind. Decisions - Transfers Pending List updated

IThe "Transfers Pending List" (Cases Granted Transfer by the Supreme Court and Awaiting Decision) has been updated to reflect activities through the week ending November 17, 2006.

Posted by Marcia Oddi on Sunday, November 19, 2006
Posted to Indiana Transfer Lists

Ind. Courts - Saturday bond court alleviates overcrowding, warden says

"Saturday bond court alleviates overcrowding, warden says" is the headline to this story by Ruthann Robinson in the NWI Times. It begins:

CROWN POINT | On Saturday morning, 12 inmates sat in the clothes they were arrested in Friday night, waiting to see if they could catch a break on their bond.

In the past, the jail would add those 12 to its population and transport them to their respective city courts -- whatever day that court is held.

Since Labor Day, a different judge each Saturday holds a special bond-reduction hearing in the jail's courtroom in an effort to reduce jail overcrowding.

It's working, Warden Caren Jones said.

"It has kept the jail population from growing," Jones said. "In August, it was 1,140. Yesterday (Friday), it was 968. It's working tremendously."

Posted by Marcia Oddi on Sunday, November 19, 2006
Posted to Indiana Courts

Ind. Decisions - "Court decisions ignite plea appeals"

"Court decisions ignite plea appeals: Affirm right even in guilty-plea agreements" is the heading to an analysis piece today by Dionne Waugh in the Fort Wayne Journal Gazette, involving "a recent spate of decisions from the Indiana Court of Appeals." From the lengthy article:

Last spring, the court ruled judges must tell defendants who plead guilty in open or capped plea agreements that they have a right to appeal. An open plea * * * is when a defendant pleads guilty without an agreement regarding punishment. A capped plea agreement is when defendants plead guilty with an agreement that they will serve no more than a particular period of time in prison.

The result is that more defendants are appealing – at taxpayer expense because those who cannot afford an attorney are appointed one – and creating more work for an already clogged judicial system. The decision has also irked some judges who feel the ruling negates the point of plea agreements and second-guesses local judges’ decisions.

“It really has opened a floodgate,” said Charles Leonard, chief public defender in Allen County. “It seems to me there are so many appeals at county expense. Some are good and some are not.”

Although defendants have always had the right to appeal in such cases, most attorneys and judges assumed defendants were giving up that right when they pleaded guilty, Huntington Superior Court Judge Jeff Heffelfinger said.

“So when the appellate decision came down, it changed what everybody thought was the status quo,” he said. * * *

The Court of Appeals first ruled on the issue in 2003 when Daniel Boone Collins filed a petition for post-conviction relief in Marion County Superior Court.

Collins pleaded guilty as part of an open plea agreement to charges of child molesting and being a habitual offender, the latter of which allows a judge to enhance a person’s sentence threefold. He was sentenced to 50 years in prison.

In the petition, filed in 2002, Collins said he had been erroneously sentenced. The Marion County judge denied his petition. The appeals court affirmed that decision but rejected the prosecution’s argument that Collins had given up his right to challenge the sentence.

In its opinion, the appeals court ruled that the Marion County judge had erred by telling Collins he waived his right to appeal the sentence because he pleaded guilty.

This year, the court made the same ruling in several cases involving defendants with capped pleas. That’s when courtrooms across the state really began to feel the effects, Allen Superior Judge Fran Gull said.

Beyond that, she said, the ruling also applies to any plea agreement case in which judges have discretion, from the prison time to the particular jail where defendants will serve their sentence.

In Allen County, fees for transcripts of the court hearings doubled from $6,000 in the first quarter to $12,000 in the second quarter of this year, she said.

Most of the extra work falls on court reporters, who are required to transcribe and copy the court hearings in the case within the 30- to 60-day appeal period. This is on top of their regular daily duties.

Court reporter Marsha Ternet said she’s working many more weekends to keep up with the increased appeals. A court reporter is paid $3.75 a page, and an average guilty plea costs about $125, she said. It’s not as expensive as a daylong jury trial, which costs an average $1,000, but if nine out of 10 people appeal their sentences, it costs taxpayers a total of $1,125 for transcripts. * * *

Although more defendants may be appealing their sentences under the new ruling, Indiana prosecutors are working to curb that.

In Huntington County, prosecutors have recently put a phrase into all plea agreements stating that defendants are giving up their right to appeal the sentence, even if they don’t know exactly what their sentence will be.

Allen County prosecutors are moving in the same direction.

“We’re in the process of working on waiver language that’s going to be including in pleas, and if people are going to be interested in these pleas, they’re going to have to waive those rights,” Allen County Prosecutor Karen Richards said.

[Law professor Joel M. Schumm at the Indiana University School of Law in Indianapolis] said another way to reduce appeals is for prosecutors to offer agreements with set prison terms.

“Most of the time, the trial judge sentence is upheld. But if it’s far out of range, then the (appeals) court is going to reduce it,” Schumm said. “In some counties, judges impose really tough sentences. In others, judges do reasonable sentences. The Court of Appeals should have a say in equalizing that out so two people get roughly the same sentence. If it weren’t for the right to appeal, that wouldn’t happen a lot of times.”

He also said that even though more defendants may be appealing their sentences, those appealing with capped pleas have the least chance of succeeding because the judge has such a narrow sentencing range.

Despite the increased number of appeals, Schumm said the decision will not swamp the appeals court because the judges can resolve such cases more expeditiously than a two-day or two-week trial.

Unfortunately, no case names are given in the article.

Here is the Indiana Supreme Court's 2004 decision in Collins v. State, with Justice Sullivan writing:

In this case, we resolve a conflict in the Court of Appeals over whether an individual who pleads guilty to an offense in an “open plea” is entitled to challenge the sentence imposed by means of a petition of post-conviction relief. Following Taylor v. State, 780 N.E.2d 430 (Ind. Ct. App. 2003), trans. denied, 804 N.E.2d 760 (Ind. 2003), we hold that such claims must be raised on direct appeal if at all. We also point out that Ind. Post-Conviction Rule 2 may be available for this purpose.
Michael Ausbrook of INCourts blog has written at length about Collins and Gutermuth I and II.

[Gutermuth II (CA ruling here), by the way, was set for oral argument on11/8/06, later stayed by the Supreme Court: "The motion to stay further proceedings in this appeal is granted and the order scheduling oral arguments for Nov. 8, 2006 is vacated. The parties will notify the Court ... when the U.S. Supreme Court has issued a decision in Burton v. Waddington. "

Read more about the Burton appeal here in The National Appellate Journal, which writes that Burton asks:

the Supreme Court the following questions: (1) Is the holding in Blakely v. Washington a new rule or was it dictated by Apprendi v. New Jersey? (2) If Blakely is a new rule, does its requirement that facts resulting in an enhanced statutory maximum be proved beyond a reasonable doubt apply retroactively?]

Posted by Marcia Oddi on Sunday, November 19, 2006
Posted to Ind. App.Ct. Decisions

Ind. Gov't. - "Senators’ perk appropriately terminated"

From the Fort Wayne Journal Gazette editorial this Sunday:

One of David Long’s first acts as the new state Senate leader was to rightly undo a self-serving act of his predecessor: He ended the lifetime health-insurance perk for retired state senators. ***

[M]aking law in Indiana is still a part-time job for legislators, whose base salary is just $11,600 – less than Fort Wayne City Council members – though per diem reimbursements bring that closer to $45,000 a year.

Few part-time jobs offer the kind of benefit former Senate President Pro Tem Robert Garton granted to his colleagues on the taxpayers’ dime: Lifetime health insurance on the state’s plan, with individual senators paying the same percentage of the premium they pay now. Based on the plan, lawmakers pay up to 25 percent of the premium. And state senators needed only six years of service to qualify.

The perk represented a wide gulf not only between lawmakers and constituents but lawmakers and full-time, career state employees – they [state employees] can participate in the state insurance program after retirement, but they have to pay 100 percent of the premium. * * *

The policy began in 2002, so only about 10 senators took advantage of it – including, ironically, Garton. Long’s action ends the benefit for senators when they leave the chamber in the future, but will not retroactively cut off the benefits for Garton and the others already signed up.

It remains mind-boggling that a single person could enact a policy that affects taxpayers without forcing a legislative vote. And Hoosiers should question why even the current lawmakers should receive such a good health insurance plan for a part-time job when so many Hoosiers lack any health insurance.

Still, Long’s decision was a step in the right direction.

Re "Long’s action ends the benefit for senators when they leave the chamber in the future" -- not exactly. According to Niki Kelly's story last week:
Under Long’s order, the modified plan terminates July 31, 2007. This gives current senators and employees who might be eligible – depending on age and years of service – about eight months to decide whether to retire and keep the benefit.
See this earlier ILB entry.

Posted by Marcia Oddi on Sunday, November 19, 2006
Posted to Indiana Government | Indiana Law | Legislative Benefits

Ind. Law - Barnes & Thornburg ERISA lawyer featured

In a story today in the business section of the Indianapolis Star headed "My big break: Team-player attorney rode niche to managing role," Barnes & Thornburg managing partner Alan A. Levin relates how he got his start in ERISA law, and its beneifts. Some quotes:

It began with a phone call from one of the leaders of my future law firm employer. I was two months away from graduating law school and had already accepted an offer to join Barnes & Thornburg. I had served as a summer associate there and had pictured myself becoming a tax attorney.

Dan FitzGibbon, then chairman of Barnes & Thornburg's tax department, called to gauge my interest in a future assignment. I had become acquainted with Dan during my time at the firm. He was someone I respected, so I listened intently to what he had to say.

During that call he asked me if I was willing to do ERISA (Employee Retirement Income Security Act) law at the firm. This type of law was nothing I had ever experienced before. It never came up in any of my law school classes, and I never had an ERISA assignment during my internship at the firm. It was Dan's instincts, though, that my personality, or lack thereof, and interest in labor and tax issues would make this a successful practice area for me.

Posted by Marcia Oddi on Sunday, November 19, 2006
Posted to Indiana Law

Ind. Law - "Jeff might ban sex offenders from parks"

"Jeff might ban sex offenders from parks: Officials like idea, want to know about its constitutionality."

Well, yes. Just take a look at this long list of ILB entries with headings like "Federal Court Rules Sex Offender Ordinance Unconstitutional."

Here are some quotes from today's Louisville Courier Journal story by Ben Zion Hershberg:

A proposed ordinance banning sex offenders from Jeffersonville's parks could be approved by the end of the year — but might face a court challenge to its constitutionality. * * *

The ordinance would require that the estimated 60 Jeffersonville residents on the Indiana Sex Offender Registry be notified of its provisions. And signs would have to be posted at city parks saying that those on the registry are banned from entering.

Fetz said he has received letters of support from five members of the public since the proposal was described in published reports. He said he also got a letter from a registered sex offender supporting the concept but suggesting some modifications.

He said he feels confident the ordinance will get broad support. "We're addressing public safety," he said.

But Ken Falk, legal director of the American Civil Liberties Union of Indiana, said he believes it could be challenged as a violation of the Indiana constitution, much as his organization is challenging similar ordinances in Indianapolis and Plainfield.

"People have a right to use public parks," Falk said, adding that the ACLU would represent anyone who wanted to challenge the ordinance, if enacted. * * *

Larry Wilder, the lawyer who drafted the proposed ordinance for Fetz, said communities across the country have enacted such laws in recent years to better protect their children.

The wave of ordinances has prompted legal challenges, including the one in Indianapolis. In that case U.S. District Judge Richard Young issued a preliminary injunction last month preventing its enforcement.

The Indianapolis ordinance bans sex offenders from being within 1,000 feet of public playgrounds, pools and youth centers when children are using them.

In his opinion granting the injunction, Young said the ordinance is so broad that it could prevent sex offenders from even traveling through the city.

Wilder said the proposed Jeffersonville ordinance is written much more narrowly —applying only to the grounds of the listed sites and not to any territory around them — and, in his view, won't run afoul of either the U.S. or Indiana constitutions.

Posted by Marcia Oddi on Sunday, November 19, 2006
Posted to Indiana Law

Saturday, November 18, 2006

Courts - News of other states' Supreme and Appeals Court judges

These is a lot of news today about appellate judges in other states.

Pennsylvania. Pennsylvania Supreme Court Justice Sandra Schultz Newman, who ILB readers may recall was barely retained in 2005 and she and another justice were up for retention, attributed to voter backlash at a legislative pay raise, is resigning for, some might say, a better job, or at least a better paying job. Here are some quotes from the lengthy report via Law.com. Some quotes:

Ending months of speculation, Pennsylvania Supreme Court Justice Sandra Schultz Newman has confirmed to The Legal that she will leave the bench at the end of the year and return to private practice as an appellate attorney.

Beginning in January, the first woman elected to the state's top court will head the appellate practice group at Philadelphia-based Cozen O'Connor, where her brother is a partner.

"I love appellate work -- never knew I would, as a matrimonial lawyer," Newman said in an interview Friday.

Firm Chairman Stephen Cozen said he has "no doubt that [Newman] will be making rain for Cozen O'Connor." * * *

Newman -- who at 68 would have hit mandatory retirement age in about two years -- did acknowledge that the events surrounding her fall 2005 retention race did play a role in her decision.

Anger over that summer's pay-raise affair had only increased by November 2005, particularly among voters in the central part of the state, and Newman and Nigro -- who was also running for a second 10-year term -- wound up raising and spending hundreds of thousands of dollars in a category of state elections historically devoid of big money and high drama.

Ultimately, Nigro was defeated by 51 percent of the vote, the first time a sitting Pennsylvania justice has not been retained in an election. Newman was retained by a relatively slim majority of 54 percent.

About a month before the election, Newman's husband, Julius, a renowned cosmetic surgeon, died following a lengthy illness.

As late as two weeks before the election, Newman had done virtually no campaigning.

Then she got a visit from her politically savvy son Jonathan, who is of counsel at Obermayer Rebmann Maxwell & Hippel's Philadelphia office and also serves as chairman of the Pennsylvania Liquor Control Board.

"My son called me like 10 days before [the election], and he said, 'You've got to [start campaigning]; if Daddy were here, he would kick your ass and make you do it,'" Newman said.

Newman raised, then spent, roughly $320,000 in the week before the election, according to campaign finance and expense reports filed with the state.

Newman said she believes the backlash against the court in the wake of the pay raise -- including criticism of the court's handling of the ensuing litigation -- has affected the collective spirit of the court.

"Nobody talks about it, but I think it has," she said.

Newman said that when she joined the court some 11 years ago, the members of its bench were particularly wary of the media in the wake of the Rolf Larsen scandal.

A similar apprehension toward the media has returned to the court as a result of the pay raise affair, she said.

"There's nothing [a justice] can say [to the media] that's right anymore, as far as I'm concerned," Newman said, adding later, "No matter what we say, it gets twisted."

Florida. From the St. Petersburg Times, a story headlined "Chief appeals judge steps down," includes these quotes:
TALLAHASSEE - Florida's largest appellate court has quietly replaced its chief judge amid internal rancor and suggestions of political influence surrounding the bribery conviction and prison sentence of former Sen. W.D. Childers.

Charles J. Kahn Jr., elected in 2005 to head the 1st District Court of Appeal for two years, resigned the chief judge's job last month in the face of a revolt by fellow judges.

A formal complaint alleging misconduct has been lodged against Kahn, documents obtained Friday by the St. Petersburg Times indicate.

In a written opinion denying Childers' appeal of his bribery conviction, another judge suggested that the public might conclude that Kahn was trying to reverse Childers' conviction as a political favor.

Connecticut. "A Reputation Stained: Review Council Punishes Former Chief Justice For Delaying Opinion, A First In Judicial History" is the headline to this story today in the Hartford Courant. The lengthy story by Lynne Tuohy begins:
For former Chief Justice William J. Sullivan, the harshest sanction Friday wasn't a 15-day suspension for holding up the release of a controversial ruling to help a colleague succeed him as chief justice.

It was the notoriety of being the first judge in the nation ever to be disciplined for holding up release of an opinion.

It was the ugly blot on an otherwise unblemished judicial career of 28 years that threatens to overshadow many remarkable accomplishments.

As he faced the 12-member Judicial Review Council just after 6 p.m. Friday to learn his fate, Sullivan appeared deflated, in contrast to the normally robust former chief justice. There would be five verdicts - one for each of the charges the council lodged against him in July.

As this story from the Connecticut Post puts it:
It found him guilty of improperly delaying the release of a controversial court case in an attempt to assist the nomination of Associate Justice Peter T. Zarella, who was Gov. M. Jodi Rell's nominee to succeed Sullivan as chief justice.

The council also found "clear and convincing evidence" that Sullivan manipulated the system "without any legitimate purpose" other than to boost Zarella, because he had a "personal, or other relationship" with Zarella, who withdrew his nomination in April after the judiciary scandal became public.

[Thanks to How Appealing for some of these links.]

Posted by Marcia Oddi on Saturday, November 18, 2006
Posted to Courts in general

Ind. Gov't. - More on: Senate's health care perks to change somewhat; retaining the General Assembly's video archives

Following up on new Senate Pro Tem David Long's announcement this week (see ILB entry here) that the Senate's generous health care perk will be pared somewhat, the Indianapolis Star opines today on other "areas ripe for reform":

Long plans to sign an administrative order eliminating senators' heavily subsidized health-care perk. * * *

Eliminating the perk will be a sound start for the new leader, a Republican from Fort Wayne. But Long will have ample opportunity in coming months to go farther in transforming a legislative chamber that's often been impervious to change.

Long should, for example, press to reduce legislators' pension benefits. Taxpayers now put in $4 for every $1 contributed by lawmakers to their retirement plan. Like the health-care perk, it's compensation that greatly exceeds the benefits other state employees and most Hoosiers enjoy.
The public needs to be invited into the inner workings of the Senate. Long should ensure that Hoosiers have access to important public information by ordering transcripts to be kept from Senate floor action and key committee hearings. Senators also need to join their House colleagues in providing Internet video casting of sessions.

An ILB correction to the Star's editorial: The Senate already does provide simultaneous internet videocasting of its daily sessions. But it does not archive these videocasts (as the House currently does) so that they may be viewed later in the day or later in the session. And neither House retains these videocasts beyond the term of the session, as the ILB pointed out on Nov. 8th in this lengthy entry titled "Suggestions for the new legislative leadership - Part I: The Video Archives," which concluded with these "Recommendations to the Indiana General Assembly" concerning the video archives:
First, both Houses should stream their session days live, plus archive the videos, permanently. Currently the House archives during the session, but does not retain the videos once the next session starts. The Senate doesn't even go that far -- you can only watch the Senate session online as it happens; nothing is preserved.

Second, all committee meetings should be streamed live, plus archived. Right now, the public cannot even get a seat in a committtee hearing that allows them to see and hear what is going on.

Third, "archived" means make permanently available online. Look again at Ohio - you can watch Ohio proceedings online live or archived, going back through 1997, plus order DVD or VHS videos. Their plan is soon to make video-podcasts downloadable also.

Fourth, the videocasts of the House and Senate daily sessions should be indexed (eg SB #238 - Third Reading), as in Ohio, allowing the viewer to go immediately to the desired position. (It might be possible to do this in conjunction with the Journals.) In fact, the entire Ohio setup should be studied, as they seem to be light years ahread of Indiana, tech-wise!

Fifth, the process - archiving the videos, access, prohibitions against editing out portions - should be detailed in statute or in the joint rules.

The ILB suggestions concluded:
In 1851 the debates and journals of the Indiana Constitutional Convention were carefully and laboriously preserved for the ages. We continue to use and reference them today. Recording and preserving today's sessions of the General Assembly is a very simple thing. But we are not doing it very well.
The ILB communicated with the Public Access Counselor and the Indiana Commission on Public Records about whether the House video archives are "public records" that cannot be summarily destroyed at the end of each session. It turns out that the applicable law is IC 5-15-5.1. the law creating the Indiana Commission on Public Records.

I learned that if the videos are the types of records that fall within a "record" under IC 5-15-5.1-1 (and the law does explicitly cover both "photographic or chemically based media" and "magnetic or machine readable media"), then they must be maintained for the prescribed period of time and may only be destroyed in accordance with the records retention schedule.

Or at least, that would be the case if the public records law applied to the General Assembly. However, as section 3 provides:

There is created the commission on public records to administer this chapter for the administrative and executive branches of state government. The commission shall adopt a seal which shall be the seal of the state of Indiana. The commission shall offer its services to the legislative and judicial branches of state government.

Posted by Marcia Oddi on Saturday, November 18, 2006
Posted to Indiana Government | Indiana Law | Legislative Benefits

Ind. Courts - More on "Former miners suing Alcoa"

Mark Wilson of the Evansville Courier & Press reports today that:

An Indianapolis law firm has signed on as co-counsel for a lawsuit on behalf of 41 former Squaw Creek miners and their families alleging that more than a decade of toxic-waste dumping there by Alcoa Warrick Operations caused various cancers and illnesses.

The law firm of Plews, Shadley, Racher & Braun filed the lawsuit in Warrick Circuit Court on Oct. 23, along with local attorneys Terry White and Kathryn Kornblum, who also represent former mine employee Bil Musgrave in a separate lawsuit in federal court, filed in February. Musgrave, who helped work to cover up the waste, was diagnosed with a rare form of bile-duct cancer six years ago.

A similar report appeared in the Princeton Daily Clarion on November 13th - see ILB entry here.

Posted by Marcia Oddi on Saturday, November 18, 2006
Posted to Indiana Courts

Friday, November 17, 2006

Environment - "Factory farms are harmful to the public and the environment, researchers report"

A story today by Marla Cone of the LA Times reports:

Growing so large that they are now called factory farms, livestock feedlots are poorly regulated, pose health and ecological dangers and are responsible for deteriorating quality of life in America's and Europe's farm regions, according to a series of scientific studies published this week.

Feedlots are contaminating water supplies with pathogens and chemicals, and polluting the air with foul-smelling compounds that can cause respiratory problems, but the health of their neighbors goes largely unmonitored, the reports concluded.

The international teams of environmental scientists also warned that the livestock operations were contributing to the rise of antibiotic-resistant germs, and that the proximity of poultry to hogs could hasten the spread of avian flu to humans.

Feedlots are operations in which hundreds — often thousands — of cattle, hogs or poultry are confined, often in very close quarters. About 15,500 medium to large livestock feedlots operate in the United States in what is an approximately $80-billion-a-year industry.

Although the reports focused largely on Iowa and North Carolina hog and poultry operations, California has more than 2,000 facilities with at least 300 livestock animals each, half of them with more than 1,000, according to a 2002 estimate by the U.S. Environmental Protection Agency. Dairies, most of them in the San Joaquin Valley, dominate the industry in California.

Led by Peter Thorne, director of the University of Iowa's Environmental Health Sciences Research Center, the researchers outlined the need for more stringent regulations and surveillance of water and air near feedlots.

"There was general agreement among all [the scientists] that the industrialization of livestock production over the past three decades has not been accompanied by commensurate modernization of regulations to protect the health of the public or natural, public-trust resources, particularly in the U.S.," wrote Thorne, a professor of toxicology and environmental engineering.

That caught my eye. There is more to the article. Here is another striking quote:
"More than an unpleasant odor, the smell can have dramatic consequences for rural communities whose lives are rooted in enjoying the outdoors," says the report, compiled by researchers in Iowa, Illinois and North Carolina. "The highly cherished values of freedom and independence associated with life oriented toward the outdoors gives way to feelings of violation and infringement…. Homes become a barrier against the outdoors that must be escaped."
The LA Times article references six reports:
The findings were from a consensus of experts from the United States, Canada and northern Europe who convened in Iowa two years ago for a workshop funded by the federal government to address environmental and health issues related to large livestock operations. Six reports, written by three dozen scientists mostly from the American Midwest and Scandinavia, were published this week in the online version of the scientific journal Environmental Health Perspectives.
They are available here, at the Environmental Health Perspectives website, currently linked via the lefthand column, labeled "Recent In-Press".

Posted by Marcia Oddi on Friday, November 17, 2006
Posted to Environment | Indiana economic development

Ind. Decisions - List of Court of Appeals NFP opinions issued for the week ending November 17, 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 November 17, 2006.

Posted by Marcia Oddi on Friday, November 17, 2006
Posted to NFP Lists

Ind. Decisions - Transfer list for week ending November 17, 2006

Here is the Indiana Supreme Court's transfer list for the week ending November 17, 2006.

Nearly three 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, November 17, 2006
Posted to Indiana Transfer Lists

Ind. Decisions - Court of Appeals issues 3 today (and 14 NFP)

For publication opinions today (3):

In In the Paternity of J.A.P., a 17-page opinion, Judge Riley writes:

Appellant-Petitioner, J.A.P., by next friend, Sheila Puckett (Puckett), appeals the trial court’s Order Determining Paternity and directing Appellee-Respondent, Daniel Jones (Jones), to pay child support to J.A.P. We reverse and remand with instructions. * * *

Based on the foregoing, we conclude: (1) the trial court’s finding that Puckett intentionally withheld information from the IV-D office is clearly erroneous; (2) the trial court’s entry of a Nunc Pro Tunc Order dismissing the Petition is improper; and (3) the trial court erred in its conclusion that the Petition was reinstated in 2004, and consequently erred in failing to order retroactive child support for J.A.P. to August 16, 1993, the date the Petition was filed. Reversed and remanded, with instructions to recalculate the amount of retroactive child support owed to J.A.P.

State Farm Mutual Automobile Insurance Co. v. Patricia Jakupko, et al - See this 12/20/06 ILB entry.

In James Johnson and Berma Johnson v. James L. Dawson, Earl E. Nelson, Jane Graham, and Brenda Kauffman, an 18-page opinion dealing with restrictive covenants (with a dissent beginning on p. 13], Judge Najam writes:

James and Berma Johnson (“the Johnsons” or “Defendants”) appeal from the trial court’s issuance of an injunction following a bench trial. The injunction prohibited the Johnsons from building a detached two-car garage on their property in the Meadowbrook Subdivision No. 1 (“Meadowbrook”). The trial court also awarded attorney’s fees to James L. Dawson, Earl E. Nelson, Jane Graham, and Brenda Kauffman (collectively, “Dawson” or “Plaintiffs”). T

he Johnsons raise three issues for our review: 1. Whether the trial court erred in its interpretation of a restrictive covenant. 2. Whether Dawson’s acquiescence in prior restrictive covenant violations by other Meadowbrook landowners bars an action against the Johnsons. 3. Whether the trial court properly awarded attorney’s fees. We affirm. * * *

Based on the foregoing, we hold that: (1) the Restrictive Covenant limits the cumulative total garage space to three cars; (2) the nonwaiver clause is valid and enforceable; (3) the Johnsons are barred by the nonwaiver clause from asserting the defense of acquiescence; and (4) the award of attorney’s fees to Dawson was not improper. Affirmed.

SHARPNACK, J., concurs.
ROBB, J., dissents with separate opinion. [which begins]

I respectfully dissent from the majority opinion with regard to the restrictive covenant because a less restrictive interpretation should be applied in light of ambiguity within the covenant. Indiana law disfavors restrictive covenants, and any doubt must be resolved in favor of the free use of property and against restrictions. Grandview Lot Owners Ass’n, Inc. v. Harmon, 754 N.E.2d 554, 557 (Ind. Ct. App. 2001), trans. denied. The intent of the parties to a restrictive covenant, which is a form of express contract, must be derived from the specific language used, as well as the circumstances of the parties, at the time the covenant was created. Mayer v. BMR Properties, LLC, 830 N.E.2d 971, 979 (Ind. Ct. App. 2005). The restrictive covenant must be considered in its entirety, rather than reading specific words and phrases to the exclusion of other provisions. * * *

The end result is that the ambiguity in the restrictive covenant requires an interpretation against the drafters, and favoring the Johnsons’s free use of their property. A narrow construction of the restriction applied to the present circumstances permits the Johnsons to build a separate garage structure limited to space for three cars or less. Although the trial court was correct that the covenant restricts the number of cars for which a garage structure may be built, it incorrectly applied that limitation to the entirety of the residential lot, including the landowner’s dwelling, rather than only to the proposed garage structure. This wrongly imposes the greater restriction where ambiguity in the restrictive covenant dictates lesser restriction. Given the presumption against the drafters, as well as the fact that prior conduct seemingly permitted the Johnsons’s actions, the less restrictive interpretation should govern the present outcome.

NFP civil opinions today (6):

Termination of Parent-Child Rel. of D.D.B., B.T.C., D.M.T., and S.T., and Melissa Sue Turpin v. Tippecanoe Co. Dept. of Child Services (NFP)

Victoria Barnes v. Madison County Department of Child Services (NFP)

Louis Polus, et al. v. Mary Scheurich, et al. (NFP)

Larry D. Cook and Bachly Cook v. Joyce B. Collins (NFP)

Richard Lindsey v. City of Clinton, Indiana (NFP) - From a report 11/21/06 in the Terre Haute Trib-Star:

Clinton — The Indiana Court of Appeals has reversed a ruling from Vermillion Circuit Court and ordered the reinstatement of Richard A. Lindsey back to his position as a corporal on the Clinton City Police Department.

The court ordered that Lindsey be reimbursed for back pay and benefits. The total could amount to about $40,000, based on Lindsey’s approximate pay.

Lindsey was fired shortly after an April 21, 2005, hearing by the Clinton Board of Public Works & Safety. The board found that he violated the department’s operating procedures by leaving the city limits while on patrol.

In the incident, Lindsey responded to a dispatch about a reckless driver on Indiana 63, who turned out to be drunk, and arrested him. The board also included Lindsey’s past disciplinary record with the department as reason for the termination. The county’s Circuit Court affirmed the board’s ruling.

In overturning, the appellate court ruled Friday that Lindsey did not violate the operating procedures, concluding that he “used common sense … in responding to the dispatch.”

Van's TV & Appliance Inc., Van S. Dick and Douglas A. Dick v. Wiggs Realty Co. of Indiana, Inc. (NFP)

NFP criminal opinions today (8) (link to cases):

State of Indiana v. Lee Ann Ortiz a.k.a. Savannah Ortiz (NFP)

Domonico Hogue v. State of Indiana (NFP)

David L. Stickel v. State of Indiana (NFP)

Victor Brewer v. State of Indiana (NFP)

Duane A. Pollard v. State of Indiana (NFP)

Tony V. Lott v. State of Indiana (NFP)

Alonzo C. Kirkwood v. State of Indiana (NFP)

Alonzo C. Kirkwood v. State of Indiana (NFP)

Posted by Marcia Oddi on Friday, November 17, 2006
Posted to Ind. App.Ct. Decisions

Thursday, November 16, 2006

Ind. Courts - More on: Judicial mandate issues in Carroll County

Yesterday the ILB quoted from an article in the Carroll County Comet that was headlined "Judicial mandates are a state-wide controversy brought home: Now a Carroll County problem."

Today the ILB is pleased to be able to post Carroll Superior Court Judge Jeffrey Smith's 5-page Order for Mandate of Funds, dated 11/9/06.

In addition, the current issue of the Comet includes a letter to the editor from Judge Smith, reproduced in full below:

As Paul Harvey would say, "Now for the rest of the story." As a judge, I have learned that one must listen to both sides of a story. My side of the story is found in the Order for Mandate of Funds filed on Nov. 9. [ILB - link to Order is above]

"The efficient administration of justice, which is the duty of the courts, cannot be made to depend upon the discretion or whim of the county council or any other officer of county government" - Indiana Supreme Court. According to the Supreme Court, "The court may make such rules and regulations as are necessary to secure its own freedom of action, and to carry on its business with dignity, decorum, order, due dispatch, and convenience and has constitutional authority to employ necessary personnel to perform its inherent and constitutional functions and to fix the salary of such personnel. It then becomes the duty of the County Council to make the proper appropriation to meet such expense."

It is my duty to assure the efficient administration of justice for the citizens of Carroll County, a duty I take seriously. The bailiff, required by statute, represents one-third of the court's full-time staff. With a full staff it is sometimes difficult to get all of the work done in a timely manner. Without a bailiff it is impossible. Immediately after my former bailiff began her six month sick leave without pay, I acted promptly to appoint a bailiff from a pool of recent applicants for a position requiring similar qualifications.

I appointed a highly qualified person with many years of work experience and a degree from Purdue. She is working fulltime performing the duties of bailiff. The council has fixed the salary of the bailiff in its salary ordinance and appropriated funds to pay the salary. She should be paid the fixed salary from the appropriated funds. Instead, the council has determined that the bailiff should receive no benefits and be paid at an hourly rate set by the council for the court to employ a high school student to do filing after school. The court cannot employ or retain a qualified employee for compensation currently allowed. To assure the continued operation of the court without disruption, I have filed a mandate action.

In the polling question on the Comet web page the following question and answers were presented: What would you want the county council to do if Judge Smith mandates his temporary staff person receive health benefits and a higher wage than allowed by the county personnel policy? Pay the mandated higher wage package or File grievance, go to court, let impartial judge rule.

This question is not unlike "When did you stop beating your wife?" There is no pretense of neutrality. The question assumes the very issues in dispute as true.

What if the new bailiff is not a temporary employee? (I have never referred to her as a temporary employee.) What if the "higher wage package" is not a higher salary but the salary already approved by the council for the court's bailiff? What if Judge Smith as part of the judicial branch is not required to comply with the county personnel policy?

I would like to suggest some other possible questions:

1. Should the Superior Court bailiff, an experienced employee with a college degree who is working 36 hours per week and performing all of her duties as bailiff,

A. Be paid the higher salary approved by the county council as a fair salary for court's bailiff in the county salary ordinance; or

B. Be paid the wages originally intended to be paid to a high school student working a few hours each week after school and no benefits? If B, should the bailiff quit?

2. Should the County Council
A. Acknowledge that, based upon holdings of the Indiana Supreme Court, Judge Smith has the authority to employ necessary personnel, to fix their salary, and to require appropriations and payment and pay the previously approved and budgeted salary; or

B. Resist the mandate at considerable cost to the county?

Jeffrey R. Smith, Judge of Carroll Superior Court

Posted by Marcia Oddi on Thursday, November 16, 2006
Posted to Indiana Courts

Environment - U.S. EPA Enforcement Highlights

From a U.S. EPA press release:

CHICAGO, Nov. 16 /PRNewswire/ -- U.S. Environmental Protection Agency Region 5 today announced that its enforcement actions in Indiana in 2006 have caused regulated entities to pay more than $27.1 million to correct past environmental violations and help prevent future ones.

In the past fiscal year, EPA resolved 56 actions against regulated entities and assessed a total of more than $1.6 million in civil penalties for various air, water, hazardous waste, community right-to-know and pesticide violations. As part of settlement agreements, Indiana regulated entities also agreed to do supplemental environmental projects worth about $310,000. In addition, EPA initiated another 33 new cases in the state.

"Complying with the law is key to protecting public health and the environment," said Regional Administrator Mary A. Gade. "We and our partners at the Indiana Department of Environmental Management are committed to cleaner air, water and land for the people of Indiana."

Three of the most noteworthy cases in Indiana involved Cargill Inc.'s plants in Hammond and Lafayette, the town of Newburgh (Warrick County) and Franklin Power in Franklin.

-- Cargill, a multi-state agribusiness that owns and operates grain, bean
and seed oil processing plants, agreed to install air pollution
control equipment at 27 facilities including those in Hammond and
Lafayette. The company will pay a $1.6 million civil penalty and
spend $3.5 million on environmental projects to resolve this national
case. Cargill's plants were significant sources of volatile organic
compounds and carbon monoxide.

-- The town of Newburgh (population 3,088) paid a $56,000 civil penalty
for wastewater permit violations and has already completed several
construction projects to upgrade its sewage treatment plant and
collection systems at a cost of about $6.4 million. The town's
ambitious plan emphasizes preventive measures and should reduce an
estimated 4.6 million gallons a year of sewage overflow into the Ohio
River. Newburgh is also dramatically reducing the levels of total
suspended solids, phosphorus, nitrogen and oxygen-depleting pollutants
in its discharge.

-- Franklin Power Products/Remy International Inc., a diesel engine
re-builder, must pay over $850,000 in penalties for failing to comply
with a previous federal administrative order requiring it to pretreat
its wastewater for oil, grease, copper, lead, chromium and zinc.

Posted by Marcia Oddi on Thursday, November 16, 2006
Posted to Environment

Ind. Decisions - "New Haven has its own zoning battle"

"New Haven has its own zoning battle: The city has spent $7,471 – so far – to fight a Flying J travel plaza" is the headline to a story today by Ryan Lengerich in the Fort Wayne News-Sentinel.

The decision is the Court of Appeals 10/31/06 ruling in Flying J., Inc. v. City of New Haven, Board of Zoning Appeals (see ILB entry here, about 2/3 down the page). An earlier news story is referenced here.

From today's story:

When more than 70 New Haven residents attended a zoning meeting in April 2005, many asked the city to oppose a Utah company’s proposal to build a travel plaza at Minnich Road and Indiana 930.

They got what they wanted, but the ensuing legal battle has cost New Haven taxpayers $7,471 in fees to the law firm of Van Gilder & Trzynka, 202 W. Berry St. in Fort Wayne, according to documents on file at the city Clerk Treasurer’s office.

“Our position is firm,” said Brian Yoh, New Haven planning director.

The dispute could reach the Indiana Supreme Court, becoming the first New Haven zoning case to do so in Yoh’s 14 years on the job.

In March 2005, Flying J Inc. proposed building a 17-acre travel plaza on land it owns at Minnich and Indiana 930, just west of Interstate 469. The plaza would include a convenience store, country market, 24-hour restaurant, fast-food court, service station with gasoline and diesel fuel, rest facility with showers and a laundry, and recreational vehicle services including waste-tank disposal and parking for 11 RVs and 187 semitrailers.

But the land is zoned for general commercial use, and Yoh ruled the truck fueling stations, waste tank disposal and 24-hour parking for that many vehicles did not fit the zoning. New Haven’s Board of Zoning Appeals agreed, and Flying J moved the dispute into the courts.

An Allen Circuit Court judge upheld the zoning board’s decision, but the Indiana Court of Appeals reversed the decision, siding with Flying J.

“We feel these courts have upheld what we felt all along, that we have a property right there,” said Flying J spokesman Mike Miller. “We wish the city would get on with it and stop wasting time and taxpayer money.”

New Haven has until month’s end to take the case to the Indiana Supreme Court. Yoh said the city has not yet confirmed it will do so, but zoning board officials have told him they want to exercise all possible means to block Flying J’s plans.

Throughout the process, Yoh urged Flying J to consider instead buying land east of I-469, away from the city, where zoning fits the company’s plans. Miller said that location does not work for the company.

If New Haven officials decide to test the matter in the state’s top court, the legal fees will continue to pile up.

The city’s lawyer, David Van Gilder, who charges $125 per hour for his legal counsel, billed 56 hours on the Flying J case from April 2005 through October.

The money comes from the city’s general fund. City Clerk Treasurer Brenda Adams said the city budgets $20,000 yearly for planning department attorney fees.

Yoh said allowing the plaza to be built would undermine New Haven’s master plan specifying a less intensive business for that property. He believes he has the backing of citizens who have said publicly the business could potentially endanger children at nearby schools by increasing traffic and noise in the area.

Miller, of course, disagrees. “They are taking away property rights, and we feel any citizen should be worried about that.”

Yoh insists the city is cost-conscious and frustrated by the ordeal.

“When you have an issue this significant, with hazards this possible,” Yoh said, “we have to defend the city.”

Posted by Marcia Oddi on Thursday, November 16, 2006
Posted to Ind. App.Ct. Decisions

Ind. Decisions - "County racks up legal fees for garage"

The case of Jeff Rice, et al. v. Allen County Plan Commission (see Aug. 15th ILB entry here) is the subject of a story by Ryan Lengerich today in the Fort Wayne News Sentinel, headed "County racks up legal fees for garage." Some quotes:

Allen County taxpayers have a big stake in the Plan Commission’s fight to bring down a detached garage north of the city.

It’s become an expensive “pole barn” for the county, which has paid the law firm Haller & Colvin P.C., 444 E Main St., $23,320 during a nearly three-year period to litigate the issue of whether a 3,600-square-foot detached garage at 11915 Auburn Road can remain where it is.

That money is in addition to the more than $19,000 the county guarantees the law firm annually for basic services, according to documents on file with the Allen County Auditor’s Office.

Robert W. Eherenman, the Haller & Colvin attorney on retainer for the Allen County Plan Commission and Board of Zoning Appeals, has billed the county for 170 hours of work related to the case since July 2004.

Eherenman handled most of the workload for $150 per hour. The rest of the work, assigned to legal assistants, was billed at about half that rate. * * *

[what follows next is a good discussion of the facts of the case]

Haller & Colvin’s bills break down in great detail Eherenman’s charges – time spent on conference calls, sending e-mails, doing research, composing court briefs, etc.

In April, Haller & Colvin billed the county $5,000 for 36 hours of work, mostly filing and revising briefs for the Court of Appeals. On March 25, 2005, it cost the county $30 for Bowman to talk 12 minutes with Eherenman.

So where does the money come from? Allen County Auditor Lisbeth A. Blosser said attorney fees draw from the county’s general fund. This year’s budget sets aside about $207,000 for all litigation.

Whether the case was worth pursuing to the state’s highest court is debatable. But Rice’s attorney, Jim Federoff of Federoff Law Firm LLP, 10445 Illinois Road, who specializes in land use and zoning law, said it is rare for a zoning case to reach that level. He is, however, handling another case against the City of New Haven that is on the verge of ascending to the state Supreme Court. [ILB - see next entry]

“It is unfortunate. Litigation and appellate work is expensive,” Federoff said.

Rice agrees, and said his attorney fees are more than double the county’s. But the legal fight, and the expenses, may not be over, regardless of what the Supreme Court decides. If the result falls in his favor, he intends to file suit to recover legal fees from the county and seek “other things” he would not discuss.

“Let’s just hope we win the Supreme Court things,” Rice said. “This has been a weird case from the beginning, so who knows what will happen.”

For more, see this ILB entry from Aug. 16th and this one from Sept. 18th.

Posted by Marcia Oddi on Thursday, November 16, 2006
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Court of Appeals issues 0 FP today (and 10 NFP)

For publication opinions today (0):

NFP civil opinions today (3):

Teresa Echemendia v. Gene B. Glick (NFP)

Jon C. Spurr v. Karen Perry, et al. (NFP)

Cathy L. Reimann v. James C. Reimann (NFP)

NFP criminal opinions today (7) (link to cases):

Katrisha Ingram v. State of Indiana (NFP)

Juan J. Guzman v. State of Indiana (NFP)

Michael T. Knight v. State of Indiana (NFP)

J.A.I., Jr. v. State of Indiana (NFP)

Steven Brewer v. State of Indiana (NFP)

Leslie McGuire v. State of Indiana (NFP)

Damien Sanders v. State of Indiana (NFP)

Posted by Marcia Oddi on Thursday, November 16, 2006
Posted to Ind. App.Ct. Decisions

Courts - Interesting stories on Kentucky Supreme Court and NY trial courts

Kentucky. "State's high court postpones week's cases due to pending turnover" is the headline to this story today in the Louisville Courier Journal. Some quotes:

FRANKFORT, Ky. — Faced with a turnover of members, the state Supreme Court has postponed all oral arguments scheduled for this week -- including one involving a former priest appealing a Bullitt County sexual-abuse conviction.

Because of last week's elections, three new members of the seven-member court will be seated on or before Jan. 1.

Chief Justice Joseph Lambert's chief of staff, Jason Nemes, said if arguments had been held this week it would have meant the current court would have heard the arguments while the new court would have issued the rulings. He said it would have been likely the new court would want to rehear arguments in many of the nine cases. "It wouldn't have been fair to the new justices, lawyers or the parties," Nemes said.

New York. "Lawmakers Examine Flaws in System of Picking Judges " is the headline to this story about NY's "Supreme Courts," which are that state's trial courts. Some quotes:
One of the first tasks the New York State Legislature faces next year is coming up with a new way to pick Supreme Court judges, replacing a method that the federal courts have found unconstitutional. * * *

Under the convention system, which was created by the Legislature in 1921, voters elect delegates to a judicial convention, who then pick party candidates for the Supreme Court, the state’s highest trial court. But in practice, party leaders dominate the process, controlling the delegates and essentially handpicking the candidates.

And in judicial districts dominated by one party — which is most of them — party leaders end up choosing the judges. “The general election is little more than ceremony,” the United States Court of Appeals for the Second Circuit ruled in August, upholding an earlier ruling by a federal judge in Brooklyn, John Gleeson.

Judge Gleeson found that the convention system violated the First Amendment rights of voters and potential candidates, and he barred the state from using it after the 2006 election. “Until the New York Legislature enacts another electoral scheme,” he wrote in his decision, “such nominations shall be made by primary elections.”

That prospect appeared to horrify many of those who testified yesterday at the hearing (though open primaries had been endorsed by the State Senate). In the absence of public financing, those speakers said, primaries would require judicial candidates to raise large sums and to make unseemly campaign promises.

“Unless we act now, we will have open primaries and, in my view, with it judgeships for sale to the highest bidder,” said Michael A. Cardozo, the city’s corporation counsel, who said he was also speaking for Mayor Michael R. Bloomberg.

Mr. Cardozo and other speakers, including the presidents of the state and city bar associations, recommended changing the convention system to make it more open and democratic. Proposals included making judicial districts smaller, reducing the number of delegates and making sure potential candidates have the opportunity to lobby delegates for their support.

Many speakers also discussed improving the panels that screen would-be judges, a step that the state court system is planning to take next year. But while screening panels might weed out judges like those who have been indicted on corruption charges in Brooklyn in recent years, they would not deal with the constitutional issues of voter participation and candidate access, Mr. Schwarz said.

In the long run, several speakers said, the state should move to a system of appointing judges based on their merits, a plan that has been endorsed by Eliot Spitzer, the governor-elect. But such a plan would require an amendment to the State Constitution, which would take several years and require voter approval.

Posted by Marcia Oddi on Thursday, November 16, 2006
Posted to Courts in general

Law - Craigslist not liable for housing ads, rules federal judge

The Chicago Tribune has a story today that reports:

The popular Craigslist Web site is not legally liable for allegedly discriminatory housing ads posted by its users, a federal judge in Chicago ruled in a case pitting landmark internet and fair housing laws against each other.

The decision was a victory for online civil liberties supporters. It was a setback for housing civil rights advocates, though they still found some hope in the judge's ruling.

The Chicago Lawyers' Committee for Civil Rights Under Law sued San Francisco-based Craigslist in February, claiming that during a six-month period, the site published more than 100 housing ads in Chicago that violated the federal Fair Housing Act.

Those ads included such declarations as "Non-women of Color NEED NOT APPLY" and "African Americans and Arabians tend to clash with me so that won't work out."

The 1968 Fair Housing Act bars housing discrimination, and newspapers and other publishers of ads deemed discriminatory can be held liable for violating the law.

But the 1996 Communications Decency Act (CDA), in an attempt to promote unfettered free expression online, shields web forums from liability for ads and opinions posted by their users.

That's what Craiglist argued in its defense in the Chicago case, and it was joined in friend-of-the-court filings by such Internet giants as Amazon.com, eBay, Google, Yahoo! and AOL.

Posted by Marcia Oddi on Thursday, November 16, 2006
Posted to General Law Related

Ind. Gov't. - Senate's health care perks to change somewhat

There are a number of stories today on new Senate Pro Tem David Long's announcement re the Senate's life time health care plan.

Niki Kelly of the Fort Wayne Journal Gazette writes:

INDIANAPOLIS – The first policy shift under the leadership of Senate President Pro Tem-elect David Long, R-Fort Wayne, came Wednesday with the end of state-subsidized health care for retired senators and employees of that chamber.

Long announced he will sign an order terminating the generous perk on Tuesday – Organization Day – after he is officially voted in by the chamber as its new president.

“The fact of the matter is we feel right now it’s important to send a message that we don’t feel a plan like that should be different from what any other state employee receives, and so from that standpoint, we’re sending a message that we’re going to change,” he said.

The move came after a lengthy caucus of the Senate Republican members Wednesday and provides a quick end to a lingering controversy.

The lifetime health care benefit began in 2002 when then-Democrat House Speaker John Gregg and then-Republican Senate President Pro Tem Robert Garton used administrative means to create the program.

Initially, it allowed lawmakers who retire with six years and one day of service to lock in for life the current employee percentage of contribution for monthly health insurance premiums. Depending on what plan lawmakers elect, their premiums can range from very little to up to 25 percent of the cost.

It also was available to lawmakers’ families and legislative employees.

Other state employees must pay 100 percent of all health care costs after they leave state government to stay in the insurance pool.

Then-House Speaker Brian Bosma last year administratively revoked the perk for House members not re-elected Nov. 7. But Garton and Long defended the program in a testy Statehouse news conference. Instead of ending it, the caucus modified the plan to reduce – but not eliminate – the level of lifetime state support.

Just a few months later, Garton was defeated in a shocking May primary in which his opponent used the issue against him. * * *

Under Long’s order, the modified plan terminates July 31, 2007. This gives current senators and employees who might be eligible – depending on age and years of service – about eight months to decide whether to retire and keep the benefit.

Long’s action is not retroactive and does not affect the estimated 10 retirees who are currently enrolled in the program – including Garton, who signed up for the modified plan after his defeat.

“Whatever the original intent of the plan was, we don’t think it ended up as we intended,” Long said. “Certainly the original plan was in my opinion too generous. We didn’t really formulate as a group what that was. We created the ability of the leadership to create a plan. I don’t think anybody really knew how generous the original plan was.”

Kelly ends her report by pointing out that neither Long nor House Speaker-elect Pat Bauer have "promised to enact legislation that would eliminate the administrative ability of the leadership to put the perk back in place in the future." In other words, neither has promised to repeal the existing authorizing legislation. And neither has provided figures showing how much the House and Senate are currently, and will continue to, pay out for the life-time health benefits of now retired (voluntarily or not) legislators, their families and staff, and how much this amount could/will rise under the promised "modified" plans.

The AP's Deanna Martin writes:

"We don't feel like a plan such as this should be different than that any other state employee receives or has access to," Long said after Senate Republicans met in caucus yesterday to discuss the issue. Republicans control the chamber, 33-17.

Long said members would not be able to sign up for the benefits after July 31, 2007, a date he said gives retirement-age senators and Senate employees about eight months to decide whether they want to become part of the plan.

"We felt it was only fair to give people some time," said Long, R-Fort Wayne.

Sen. Luke Kenley, a Republican from Noblesville, estimated less than 10 people are on the plan now and would be allowed to keep the benefits.

One person already on the plan, Long said, is outgoing Senate President Pro Tem Robert Garton.

Garton had led the Senate a state record 26 consecutive years until being ousted from office in a primary upset. Some criticized Garton for not ending the health benefits earlier.

Indiana House Minority Leader Patrick Bauer, D-South Bend, said that he stands behind his statement in May that he would end the benefits package for retired House members if he regained the speaker's gavel.

Martin adds: "Besides special health insurance packages, lawmakers have for several years been entitled to the more generous public pension package." Indeed, legislators receive a 4 to 1 match from the taxpayers for every dollar they contribute. And legislation has been passed prohibiting public access to any part of the retirement benefits records of legislators.

Mary Beth Schneider of the Indianapolis Star reports:

A controversial legislative health-care plan that outraged the public and led to the defeat of the state Senate leader is being canceled.

Incoming Senate President Pro Tempore David C. Long, R-Fort Wayne, said he will sign an administrative order Tuesday, after he is officially elected Senate leader, ending the program for senators effective July 31. He said that will let legislators and staff decide whether they want to retire before then, in order to be eligible for the plan.

One who will receive the benefit is former Senate President Pro Tempore Robert D. Garton, R-Columbus. Public indignation over the plan led to Garton's defeat in May's primary.

The House, under then-Speaker Brian C. Bosma, R-Indianapolis, canceled the plan in January. Democrat B. Patrick Bauer of South Bend, the next speaker, said it won't be revived.

But the Senate, under Garton's leadership, had so far only tweaked the plan, created in 2001 and 2002.

The plan covers 75 percent to 100 percent of health-care costs for legislators, some staff, their spouses -- even ex-spouses -- and dependent children. * * *

Legislators, Long said, will now be able to get coverage under a plan that treats them the same as other state employees. Retired state employees can continue to receive insurance coverage only if they pay the full cost of the premiums.

Eighteen former House members have signed up for medical, dental or vision coverage on the plan for themselves and family members. Sen. Luke Kenley, R-Noblesville, said fewer than 10 retired senators and staff have done so.

Senate Democrats announced earlier this year that they would not accept the coverage.

For comprehensive ILB coverage of this issue, click "legislative benefits" below, or in the right column.

Posted by Marcia Oddi on Thursday, November 16, 2006
Posted to Indiana Government | Indiana Law | Legislative Benefits

Environment - "Mittal eyes sludge disposal"

"Mittal eyes sludge disposal: 1.1 million tons of sludge dumped on ground during past 20-plus years" is the headline to this story by Lauri Harvey Keagle in the NW Indiana Times. Some quotes:

BURNS HARBOR | While neither the state nor the U.S. Environmental Protection Agency are requiring the plant to stop placing sludge contaminated with iron, oil and grease in wet piles on the ground, officials there say finding a better disposal option is simply the right thing to do.

"This is not the appropriate way to handle these materials," said Rob Maciel, environmental manager at Mittal. "It needs to be handled by today's standards."

For more than 20 years, the material from the secondary waste water treatment facility has been dumped directly on the ground at the plant, beginning when the facility was owned by Bethlehem Steel.

The material has accumulated to the 1.1 million tons sitting there today.

The plant is currently generating about 50,000 tons of sludge annually, taken from the waste water treatment plant to the piles on the ground in tanker trucks seven to eight times a day.

One option the company is exploring for handling the sludge is building a disposal facility on 170 undeveloped acres on the Burns Harbor property that could be as high as 85 feet tall, Maciel said. That property is wooded in some areas, with prairie grass and remnants of a dune as part of its features.

The steel mill itself is adjacent to the Indiana Dunes National Lakeshore, with the property under consideration for the disposal facility sitting near the environmentally sensitive Cowles Bog.

During a tour of the plant for the company's Citizens Advisory Committee Wednesday, Maciel said if the site were to be used for a disposal facility, "the dunes that are there will essentially remain as a buffer."

"I'd rather see those things remain in place," he said. "That's the heritage of Burns Harbor."

Maciel said the sludge could be recycled in the company's sinter plant if not for the oil and grease content, which enter the material through the lubrication needed to operate large machinery throughout the steel plant's processes.

Some members of the Citizens Advisory Committee suggested the company work on ways to keep the oil and grease from entering the sludge in the first place, serving as a global model for other Mittal properties.

Removing those materials from the waste stream could be accomplished within a year's time, Maciel said, but would not be cost-effective for the company.

"You've got 1.1 million tons laying there now," said Tom Anderson, executive director of the Save the Dunes Council. "Even if you can find a way to alleviate the problem, you've got a waste management issue there that needs to be resolved right now even if you didn't produce another pound from this day forward."

The company's research and development group is currently taking samples of the sludge, the ground on which it sits and the property that could potentially hold the disposal facility.

Once those samples have been analyzed, the results and suggestions for handling the material will be presented to the Citizens Advisory Committee, likely sometime in late January or early February, Maciel said.

Posted by Marcia Oddi on Thursday, November 16, 2006
Posted to Environment

Wednesday, November 15, 2006

Ind. Courts - "Commission on courts agrees Floyd County needs second magistrate"

Chris Morris of the New Albany Tribune reports:

Floyd County Circuit Court Judge Terry Cody says he has received a favorable approval from the state Commissions on Courts for a new magistrate for Floyd County beginning in July.

He was hoping to get the same Tuesday night from the Floyd County Council. However, he did not.
Floyd County has three courts — county, circuit and superior — and one magistrate, Dan Burke, who was appointed in 1999. However, due to an increase in crime and arrests, Cody said Floyd County is in desperate need of help. He said he is scheduling trials a year in advance.

“We are at a point where we are not getting people through the court process in the time they deserve,” Cody said.

The favorable recommendation will now be sent to the state legislature. If it gets through committee, and receives a favorable vote on the floor, Floyd County could have a second magistrate July 1.

The state pays the salary of the magistrate. The county would be responsible for the magistrate’s staff and equipment. That is where the problem lies.

“The only problem with this is we don’t have any money,” County Council President Ted Heavrin said. “Our budget hasn’t been approved, and if the state cuts our budget like they did last year, someone will have to be laid off. That is the bottom line.”

However, Cody said Floyd County is to the point where something has to be done. He said it’s too early to say the county won’t have the necessary funds. He said the county would only have to come up with money for six months, and that the expenses would be minimal.

“The Floyd County Council and Floyd County Commissioners have always looked out for the court system,” Cody said. “Once we know if the legislature approves it, we can plan for it. It won’t happen until July.”

Posted by Marcia Oddi on Wednesday, November 15, 2006
Posted to Indiana Courts

Courts - Yet more on: Illinois chief justice doesn't just get mad, he sues

Tona Kunz and Kara Spak of suburban Chicago's Daily Herald write today on the Illinois Chief Justice's court victory in a story headlined "Libel verdict could quiet criticism of judges, lawyers say.": The story begins:

The loss of a libel lawsuit by a small-town columnist who took on a state Supreme Court justice could change the landscape for journalists and other critics of judges.

“I think this does have a chilling effect on the press’s ability to cover government,” said Stephen Rosenfeld, a Chicago attorney who represented former Kane County Chronicle columnist Bill Page and Shaw Suburban Media Group in the lawsuit filed by Justice Robert Thomas of Wheaton.

While Illinois appellate Judge Gordon Maag recently sued the Illinois State Chamber of Commerce over critical fliers in his campaign for the state Supreme Court, this is the first time a sitting Illinois Supreme Court justice has sued for libel. It also is one of the few times across the country a libel lawsuit has centered on the private deliberations that occur on the judge’s bench.

A Kane County jury awarded Thomas $7 million Tuesday.

“It’s a large judgment and it should be of significant concern to the resident of Illinois that a judge who has been criticized brings a libel suit,” said Sandra Baron, an attorney and the executive director of the Media Law Resource Center in New York. “When members of the judiciary go into court, it never looks like a fair fight. It’s also important for newspapers and columnists to express critical judgments about a judge.” * * *

Page said his defense in court was hampered by the fact Thomas’ fellow justices used what is called “judicial privilege,” akin to a legal version of doctor-patient confidentiality, to refrain from talking about their deliberations on the bench. That meant that instead of Thomas having the burden of proof to prove the columns were false, Page had to prove they were true.

That was hampered by the fact Page refused to give up the names of his sources.

“I think it’s a complicated case, particularly when you deal with confidential sources and a high-profile plaintiff,” Page said. “It is hard to be as credible as you want to be when you have to parse your words.”

Page’s loss could make journalists more wary of relying on confidential sources.

The jurors said while they realized the verdict could send a message to the media, they were not trying to stop criticism of government. Jurors said they simply wanted comments by confidential sources backed up by other information and more efforts made to check out stories before they are printed.

Yet, legal experts say the win by Thomas could stop criticism of judges altogether at smaller newspapers. The hefty price tag of potential lawsuits could make editors think twice on analytical or critical stories.

The possibility also exists that the verdict could embolden judges to file lawsuits.

Posted by Marcia Oddi on Wednesday, November 15, 2006
Posted to Courts in general

Ind. Courts - Supreme Court issues another opinion today

In Michael Green v. State of Indiana, a 3-page, 5-0 ruling, Chief Justice Shepard begins:

Trial courts sometimes receive a plea of guilty or a finding of guilt on multiple counts, one of which represents a lesser-included offense of some other count. Where the court merges the lesser-included offense without imposing judgment, there is no need to remand on appeal to “vacate.”

Posted by Marcia Oddi on Wednesday, November 15, 2006
Posted to Ind. Sup.Ct. Decisions

Ind. Courts - Judicial mandate issues in Carroll County

The ILB has posted a number of entries involving judicial mandates in Indiana (here is a list of all entries with the phrase "judicial mandate"), and has written an article on the same ("Separation of Powers in the County Courthouse," available here).

Today the Carroll County Comet has a front-page article by Debbie Lowe headlined "Judicial mandates are a state-wide controversy brought home: Now a Carroll County problem."

Here is a quote from the story that caught my eye:

"A judge's mandate is a form of judicial tyranny," Dossett said. "I would love to see the issue go to the federal level (for resolution)."

But to start at the beginning of the Comet report:

Tension has grown in the last two council meetings between Carroll Superior Court Judge Jeffrey Smith and the body of the county council over the county hiring policy. The issue also includes county auditor Beth Myers, who is bound by state board of accounts guidelines to follow county ordinances and resolutions.

The issue seemed at first to be whether Dee Dellenbach, hired by Smith as court bailiff, should be considered a part-time employee, a temporary employee, or a full-time employee. Smith did not advertise the position prior to interviewing and subsequently hiring Dellenbach.

However, the real issue seems to be about the council's authority, or lack thereof, to impose one of those conditions on court personnel the same as apply to all other county employees. Each category dictates a rate of pay and benefit level explained in the county personnel policy manual, contained in the budget and included in the county salary ordinance.

At the last council meeting, held Nov. 6, council members denied Smith's request to pay Dellenbach the same salary as Vick Lesh, the absent bailiff granted unpaid medical leave. Smith's additional request to pay medical benefits to Dellenbach was also denied.

According to Myers, Lesh's leave is unpaid because her vacation days, sick time and personal days have all been exhausted. Lesh continues to receive disability benefits from county-provided life and disability insurance, Myers added.

In response on Thursday, Nov. 9, [Judge] Smith issued a mandate, or a court order, filed in Carroll Superior Court, which ordered the council to abide by his request for the funds.

Council members exercised their perceived authority and the judge exercised his perceived authority. And thus set the stage for a drama that is being played out across the state in at least three counties.

The story then quotes Judge Smith's order in full. The story continues:
According to President of the Association of Indiana Counties and Montgomery County Auditor Jeff Dossett, council has the option to accept the order or not. If it is not accepted, the matter will go to litigation before a special judge for a ruling. And if the council does not agree with that ruling, the matter will go to the Indiana Supreme Court, which is where Montgomery County Council members find themselves at present.

Dossett said in a Nov. 9 Comet interview, AIC would like for the matter to receive national attention for a permanent resolution. He said for a judge to order unplanned spending is a dangerous situation.

"A judge's mandate is a form of judicial tyranny," Dossett said. "I would love to see the issue go to the federal level (for resolution)."

AIC is working to support legislation that would remove the ability of a judge to demand the county pay for what the court believes to be necessary, not what council members determine to be necessary. * * *

According to an article in the September/October issue of Indiana News 92, published by AIC titled, "Judicial mandates become financial burden for counties," Deputy Legislative Director Dax Denton said, "Judicial mandates are an often frustrating and undesirable occurrence when presented to the County Commissioners and County Council. It is something that can deplete county resources, cause reductions in employees, and place additional fiscal limits on county services. It is happening all across Indiana from Clark County, to Montgomery County and even in St. Joseph County. Worst of all, the county has very little recourse of action when mandated by a judge. These judicial mandates have become a growing concern for counties across Indiana, costing them thousands of dollars in legal fees and compliance measures."

According to the article, AIC supports "appropriate and adequate funding of county courts." However, counties must have the ability to fund all other county services "at appropriate levels without having to increase taxes to continue paying for judicial functions."

Carroll County Council member Nancy Cripe, while being interviewed for a Comet story about the county's money woes, said, "I've been on the county council for four years and I've gotten more calls and contacts about the mandate than any other issue. When we denied Smith's request, I expected the mandate. The people I've talked to are very upset."

"I expected this," council president Rob Baker said in a Nov. 10 Comet interview. "I don't understand it, but I expected it."

Baker said the council will meet in executive session Nov. 17 to develop a plan of action.

"This is so new-as long as I've been on the council, we've never had a mandate," Baker said. "We may be forced to spend money now to avoid uncontrolled spending in the future," he concluded.

Posted by Marcia Oddi on Wednesday, November 15, 2006
Posted to Indiana Courts

Ind. Decisions - Court of Appeals issues 2 today (and 10 NFP) [Updated]

For publication opinions today (2):

Carls Jones v. State of Indiana

Estate of Mary L. Daniels v. Sharyi Bryan, et al

NFP civil opinions today (4):

Linda K. Boone v. Daniel R. Boone, Sr. (NFP)

Michael C. Bridges v. Cecil Davis, et al. (NFP)

In the Matter of the Adoption of T.W. and D.W. v. Gary and Rachel Silbernagel (NFP)

ICON Transportation, et al. v. Thomas J. Lee, et al. (NFP)

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

Ronnie Batts v. State of Indiana (NFP)

Chad Skinner v. State of Indiana (NFP)

Chad M. Modesitt v. State of Indiana (NFP)

William Leon Lile, Jr. v. State of Indiana (NFP)

Vinaya Choppala v. State of Indiana (NFP)

Cy Owen Sherrill v. State of Indiana (NFP)

Posted by Marcia Oddi on Wednesday, November 15, 2006
Posted to Ind. App.Ct. Decisions

Ind. Courts - Harrison County Courthouse lacks overall security, some say

The Corydon Democrat reports today, in a story by Tonya Windell:

An unauthorized after-hours visit recently by a county employee may be the least of security concerns when it comes to the Harrison County Court House.

Some believe the current security systems in place are so inadequate more serious incidents could occur.

Harrison County Circuit Court Judge H. Lloyd (Tad) Whitis said he is concerned with people entering the courthouse after hours who possibly shouldn't be there.

"We have a lot of court records and court documents that we don't want tampered with," Whitis said last week.

The incident involving an unauthorized entry into the courthouse happened Nov. 1. Indiana State Police declined to comment on whether it was being investigated.

However, Whitis is concerned with a great deal more than someone's unauthorized entry, and that is the overall security of the courthouse.

Whitis said the circuit court, which is housed in the courthouse, deals with a large number of juvenile and divorce cases.

"We have people who get emotional, that get pretty violent," he said.

Whitis said research shows more violence occurs in domestic court than in other courts, and there have been incidences here in the past. Whitis recalled an incident when a 12-year-old boy wrestled two police officers to the floor when he became angry and violent. "If you saw the volatility in people — to me this is a no-brainer — you would take care of the security in this courthouse," Whitis said.

Liz Day, chief probation officer, agreed with Whitis.

"We're on guard all the time," she said.

Whitis said he does not feel the existing security system is adequate and said he has asked the Harrison County Board of Commissioners at least three times to look into security issues.

Whitis said he gave the commissioners the results and recommendations of an independent courthouse security survey and assessment conducted by the Indiana Judicial Center.

The Circuit Court has a metal detector that can be placed at the entry to the third-floor courtroom but there's no corrections officer to staff it. Also, there is a protective paneling behind the judge's bench.

Whitis said the metal detector blocked his view of the hallway so he had it removed from in front of the door.

"It was actually more of a hindrance," he said. Whitis said also his office has never received training on any of the security items that are in place.

Harrison County Auditor Pat Wolfe said she feels safe within the building but believes the courthouse could use more security.

That's because, she said, "We do not know what people carry into this building."

Wolfe said she was concerned with people getting upset and possibly violent in the courthouse on the third floor, just a floor above where the public goes to pay their property taxes and to visit the auditor's or clerk's office.

The courthouse currently has two security systems in place. The first was installed during the recent renovation and uses a phone line to call for help.

J.R. Eckart, commissioner chair, said it was his understanding the system is fully installed and working, but it still needs to be programmed.

"They just have not assigned who would be called," he said.

A second system, installed by the Indiana Justice Center, transmits over the Harrison County Sheriff's Dept. radio frequency.

Whitis said the Harrison County Sheriff's Dept. and the Corydon Police Dept. have been quick to respond when they have used the system.

But Sheriff Mike Deatrick said there are flaws with both systems.

"I didn't like the system when it was put in," he said. "It's very weak."

Deatrick said the courthouse needs a system that rings directly into 911.

Deatrick said a major problem with the security system which uses a radio frequency is that officers who are already using the radio sometimes do not hear the call come in. He said the call could even be missed by the dispatcher if he or she at the time was taking another call or using the radio.

"Unless they are familiar with it and know what it is, no one has a clue," he said.

A test of the system on Monday showed that not all officers heard the call over the radio even though the call was heard by Deatrick and the dispatcher.

Deatrick said he expressed his concerns about the courthouse two years ago.

"I have more concerns about the downtown courthouse than I do here," he said, speaking at the justice center.

Deatrick said incidents at the Harrison County Justice Center are more predictable than those at the courthouse.

"You never know what will happen when there is children involved," he said. "I know we have a lot of people that come through here, but they've got more problems."

Deatrick said the courthouse could be totally secured by closing all doors except one and putting a metal detector at that door along with a guard.

"It's not really that big of an expense," he said. Records show a corrections officer would cost less than $27,000 a year including pay and benefits.

The justice center has a metal detector and guard at the front door as well as Harrison County police officers who are entering and leaving the building 24 hours a day. Plans to purchase and install security planter boxes or blockades in front of the judical center to prevent people from driving into it are also under consideration.

The commissioners said Monday they do not see the need to "harden" the courthouse to the degree of stationing a corrections officer.

"I don't want to turn it into an armed camp," Eckart said. "There's always a risk."

Eckart said the commissioners have reviewed security in the building many times.

The last time security was reviewed was during the courthouse renovations by Performance Services, a group subcontracted by RQAW, the Indianapolis engineering firm that oversaw the planning of the justice center and courthouse renovations.

"Right now we're still following their advice," Eckart said.

Posted by Marcia Oddi on Wednesday, November 15, 2006
Posted to Indiana Courts

Ind. Courts - Steuben County public defenders made full-time

Northeast Indiana's WLKI is reporting:

(ANGOLA) - After being told the county's public defender program was not in state compliance, the Steuben County Council yesterday morning approved a request to change the status of two public defenders from part time to full time. The Council trimmed the number of public defenders during belt tightening on the 2006 budget from seven to five much to the chagrin of the local legal community. Program Coordinator Linda Wagoner from the Public Defenders Board pointed out figures which indicated an increase in the number of criminal cases that have been filed in the last couple of years. Wagoner said turning the two part timers into full time public defenders is one option the county could pursue to keep the program in compliance and thus be reimbursed by the state. The appropriation for the change in status of the two public defenders would have to be approved at the January County Council meeting.

Posted by Marcia Oddi on Wednesday, November 15, 2006
Posted to Indiana Courts

Ind. Decisions - Supreme Court decides one today

In Gerald Reed v. State of Indiana, a 14-page, 5-0 opinion, Justice Rucker writes:

The question we address is whether the failure to raise on appeal the aggregate length of a defendant’s consecutive sentences for two counts of attempted murder amounts to ineffective assistance of appellate counsel. On the facts of this case, we conclude it does. * * *

We conclude that appellate counsel rendered ineffective assistance and therefore reverse the judgment of the post-conviction court declaring otherwise. This cause is remanded to the post-conviction court with instructions to enter a new sentencing order imposing a sentence not inconsistent with this opinion.

Posted by Marcia Oddi on Wednesday, November 15, 2006
Posted to Ind. Sup.Ct. Decisions

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

The ILB had a lengthy entry on Oct. 30th on Lake Superior Court Judge Robert A. Pete's Oct. 24th ruling denying, according to the Gary Post Tribune, "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."

Today Dan Carpenter, Indianapolis Star columnist, has a column giving context to last month's decision.

[The ILB has been unable to obtain a copy of Judge Pete's ruling.]

Posted by Marcia Oddi on Wednesday, November 15, 2006
Posted to Ind. Trial Ct. Decisions

Ind. Gov't. - "Guns in state parks rule gets first public hearing"

In September the Indiana DNR chief adopted an "emergency" rule lifting the ban on handguns in state parks. For background see this ILB entry from Sept. 23rd, and this ILB opinion piece from Sept. 29th questioning "why it was felt necessary in the case of the new rule allowing handguns in state parks to treat this rule change as an 'emergency', thus circumventing the entire public rulemaking process."

Today, Patrick Guinane of the Northwest Indiana Times reports that "Guns in state parks rule gets first public hearing: Panel to review temporary rules signed in September." Keep in mind when reading his story that the "emergency" rule is already in effect simply by virtue of DNR Commissioner Kyle Hupfer's signature and can remain in effect for up to year with no further action:

INDIANAPOLIS | The right to pack heat in state parks gets its first public review this morning.

Indiana Natural Resources Commissioner Kyle Hupfer signed temporary rules in September that lifted a long-standing ban on concealed weapons at state parks and wildlife areas. Today, Hupfer will ask and administrative panel to uphold the rule change, a first step toward making the policy permanent.

"We did get quite a bit of e-mail, but it's pretty much 50-50 (for and against)," said state Department of Natural Resources spokeswoman Kim Brant.

If the Indiana Natural Resources Commission grants preliminary approval today, a public hearing on the handgun rules would be scheduled sometime in the coming months. * * *

The Natural Resources Commission meets at 10 a.m. Eastern Time at Fort Benjamin Harrison -- The Garrison -- 6002 N. Post Road, in Indianapolis.

Posted by Marcia Oddi on Wednesday, November 15, 2006
Posted to Environment | Indiana Government | Indiana Law

Courts - Even more on: Illinois chief justice doesn't just get mad, he sues

Updating yesterday's ILB entry, today the NY Times has this report by Katharine Q. Seelye headlined "Jury Finds That Columnist Acted With Malice and Awards Judge $7 Million ." Some quotes:

GENEVA, Ill., Nov. 14 — In a case that media lawyers say has broad implications for press freedoms, a jury here found Tuesday that a newspaper columnist falsely wrote in 2003 that the chief justice of the Illinois State Supreme Court had traded his vote for a political favor, and had acted with malice.

The chief justice, Robert R. Thomas, brought the case against Bill Page, a former columnist for The Kane County Chronicle, a 14,000-circulation daily here, about 40 miles west of Chicago.

The jury awarded Justice Thomas $7 million, with $5 million for damaging his reputation, $1 million for future economic losses and $1 million for humiliation. It is the second-largest award in the county’s history, after a $21 million medical malpractice award this year, said F. Keith Brown, a circuit judge here. * * *
Steve Rosenfeld, part of the defense team, said the verdict would most likely be appealed. But he said it would be tricky because Mr. Thomas, 54, a former place-kicker for the Chicago Bears, oversaw all judges, including the trial judge, Donald J. O’Brien Jr., who was brought in from Cook County, and the State Supreme Court justices, most of whom took the stand on his behalf.

The case was also significant because it prompted an appellate court to establish a judicial privilege in Illinois, allowing deliberations to be kept private, much like doctor-patient discussions.

Newspapers are sued frequently, but it is unusual for a judge to sue a newspaper. Of 397 complaints filed against the news media last year, judges and magistrates brought 25 of them, or 6 percent, according to the Media Law Resource Center. * * *

Jurors said they were not bothered that Mr. Page used unidentified sources, but wished there had been some confirmation of what they said. Without that, and without seeking a response from the justice before publication, the jurors said, the newspaper appeared to act recklessly.

Rick Shaw, 50, a juror and an engineering manager, said of the charges of vote-trading, “We were O.K. with confidential sources, but if it was so widespread, someone should have confirmed the facts.

Posted by Marcia Oddi on Wednesday, November 15, 2006
Posted to Courts in general

Tuesday, November 14, 2006

Ind. Courts - Indiana Supreme Court loses case on allowing judicial candidates to express views

This is a biggie. Here are some quotes from a press release just issued by James Bopp, who was the lead counsel in a suit against the Indiana Chief Justice in the case of Indiana Right to Life v. Shepard.

Indiana Judicial Conduct Rules Enjoined

Federal District Court Judge Allen Sharp has granted a permanent injunction against provisions of the Indiana Code of Judicial Conduct that prohibited state court judicial candidates from responding to a questionnaire asking their views on legal and political issues. The Court held that provisions of Indiana’s Code that forbid judicial candidates from making “pledges or promises” of conduct in office or statements that “commit or appear to commit” candidates on issues likely to come before them violated the First Amendment to the U.S. Constitution because these provisions prohibited candidates from simply announcing their views on issues.

Indiana Right to Life had sent a questionnaire to candidates for judicial office in the November 2004 election requesting that they state their views on policies and court decisions related to such matters as assisted-suicide and abortion. Several of the judicial candidates refused to do so, stating that advice from the Indiana Judicial Commission on Qualifications suggested that judicial candidates could be disciplined for expressing their views by responding the questions posed in such questionnaires. In 2002, the U.S. Supreme Court held unconstitutional a Minnesota rule that prohibited judicial candidates from “announcing their views on disputed legal or political issues.” The District Court found the Indiana “pledge or promise” and “commit” provisions unconstitutional because they were used to forbid the same speech that the Minnesota “announce” clause had prohibited.

According to James Bopp, Jr., lead counsel for the plaintiffs, the Indiana rules “contradict the U.S. Supreme Court’s decision, which clearly stated that judicial candidates have a right to respond to questionnaires like this and that voters have a right to hear what they have to say.” Bopp, who argued the case challenging the Minnesota judicial rule struck down by the U.S. Supreme Court in Republican Party of Minnesota v. White, 536 U.S. 765 (2002), stated that Indiana’s rules and policy were being interpreted to “cover the same unconstitutional ground” as Minnesota’s rule that prohibited judicial candidates from announcing their views had done.

The case is Indiana Right to Life v. Shepard, No. 4:04-cv-0071 (N.D. Ind. Nov. 14, 2006).
For background start with this ILB entry from July 12th, 2006.

The decision ends with this:

Finally, it is worth restating that nothing in this Court’s order should be read to compel, or even encourage, judges or judicial candidates to answer questions put to them by these plaintiffs or any other group. This Court comes to its decision without regard to the political or social agendas of the Plaintiffs in this matter. While this Court appreciates both the difficulty and the importance of the task charged to the Defendants in this case, it also appreciates a very basic reality – that judges come to the bench with a diverse range of well-formed opinions and predispositions on a host of social and political issues. And yet the overwhelming majority of them fairly and competently discharge their judicial duties. In the rare event that they do not, the democratic process – not ad hoc analysis by a state commission – provides the proper remedy.
Here is the 21-page opinion of the federal district court in Right to Life v. Shepard.

Posted by Marcia Oddi on Tuesday, November 14, 2006
Posted to Ind Fed D.Ct. Decisions | Indiana Courts

Courts - Still more on: Illinois chief justice doesn't just get mad, he sues

And wins.

"Jury awards $7 million to justice in libel suit" is the headline to a story by Jim Kimberly posted at 3:44 PM CST. The story begins:

A jury today awarded a sitting Illinois Supreme Court justice $7 million in his defamation case against a small Kane County newspaper that had published columns accusing him of injecting politics into a case pending before the high court.

After listening to two weeks of testimony, the jury took just a few hours to return a verdict in the libel trial involving Chief Justice Robert Thomas and the Kane County Chronicle.

They found in favor of Thomas on each of four counts, deciding that two columns written by former columnist Bill Page in 2003 were false and published with actual malice.

Jurors, who got the case around 4 p.m. Monday, said today they had decided in favor of Thomas by the end of Monday evening. When they reconvened at 9 a.m. this morning, they spent the bulk of their time deciding how much to award Thomas for economic damages.

They returned a verdict at 1:20 p.m. today, awarding Thomas $1 million for economic loss reasonably certain to be experienced in the future; $1 million for personal embarrassment, mental suffering and humiliation; and $5 million for impairment of personal and professional reputation and standing in the community.

Thomas cried after the verdict was read and hugged his attorneys. He waited in the hallway outside the courtroom to thank jurors, hug them and shake their hands.

Posted by Marcia Oddi on Tuesday, November 14, 2006
Posted to Indiana Courts

Ind. Decisions - Court of Appeals issues 1 today (and 4 NFP)

For publication opinions today (1):

In James Shafer v. State of Indiana, a 10-page opinion, Judge Valdik writes:

In this consolidated appeal, James Shafer appeals his enhanced and consecutive sentences for robbery resulting in serious bodily injury in one cause number and burglary in another cause number. Because a trial court may order terms of imprisonment to be served consecutively even if the sentences are not imposed at the same time, the Fulton Circuit Court did not abuse its discretion in ordering Shafer’s robbery sentence to be served consecutive to Shafer’s burglary sentence in Fulton Superior Court, which was imposed later that same day. In addition, the courts did not abuse their discretion in finding Shafer’s commission of another crime against the same establishment and his lack of remorse as aggravators. We therefore affirm Shafer’s sentences.
NFP civil opinions today (2):

In Bruce Burkett v. Gus Pulos, DDS and Amy Strati (NFP), a 20-page opinion, Judge Barnes concludes:

The classifications of plaintiffs created by the Medical Malpractice Act’s statute of limitations advance a legitimate legislative goal. Burkett had a reasonable amount of time in which to file his complaint before the expiration of the two-year occurrence statute of limitations. Indiana Code Section 34-18-7-1(b) is not unconstitutional as applied to Burkett.

Burkett has not shown that there is an issue of material fact related to whether Dr. Pulos fraudulently concealed his alleged malpractice. Dr. Pulos was not precluded from raising a statute of limitations defense, and because he successfully did so, is entitled to judgment as a matter of law. The trial court properly granted summary judgment in favor of Dr. Pulos. We affirm. Affirmed. SULLIVAN, J., and ROBB, J., concur.

Donnie Culpepper v. Zettie Cotton, et al. (NFP) - "The issue is whether the trial court erred in dismissing with prejudice Culpepper’s complaint against the Indiana Attorney General and employees of the Indiana Department of Correction."

NFP criminal opinions today (2) (link to cases):

Larry Best, Jr. v. State of Indiana (NFP)

Zane Padgett v. Ed Buss, Superintendent of Indiana State Prison (NFP)

Posted by Marcia Oddi on Tuesday, November 14, 2006
Posted to Ind. App.Ct. Decisions

Ind. Law - Warning to those who rely on the online Indiana Administrative Code

On June 4th the ILB published a warning, titled "Warning to those who rely on the online Indiana Administrative Code." I'm posting that warning again today.

As of this writing, the online Indiana Administrative Code has not been updated since Oct. 18th. The online IAC now includes this warning:

The versions of Indiana Administrative Code sections appearing in this archive are NOT necessarily the most recent versions of these sections. Please go to the "Latest Update" link to the IAC to see the most recently posted version.
However, when you use the "Latest Update" link, you go are led right back to the Oct. 18th version!

A number of major changes affecting a large body of Indiana law and those impacted by it have been made by the General Assembly's Legislative Services Agency (LSA) since the end of the 2006 session. Little, if any, word of these changes has been communicated to the world outside the Statehouse.

So if you are an alert reader, you will recognize when you look for the latest rules on a topic that the online Indiana Administrative Code (IAC) is not up-to-date. So what do you do then? There is no printed version, the LSA abolished that several years ago.

What about the Indiana Register, the printed monthly periodical that kept the IAC up-to-date? Gone. The LSA abolished it several years ago.

But wasn't it still online? Yes it was, but the LSA eliminated the online Indiana Rules Tracker the end of June.

Where is all this explained? What is your regular person, or even your non-rules specialist lawyer, to do?

Beats me.

Posted by Marcia Oddi on Tuesday, November 14, 2006
Posted to Administrative Law | Indiana Government | Indiana Law

Monday, November 13, 2006

Ind. Courts "Former miners suing Alcoa"

The Princeton Daily Clarion is reporting, in a story by Nathan Blackford:

BOONVILLE-Former miners and their families have alleged for nearly three years that waste dumped at the Squaw Creek Mine north of Boonville was the cause of a multitude of physical ailments. Now, 41 people - mostly miners and their spouses - have filed suit asking for damages from the mine's owner, Alcoa.

Starting in 1965, Alcoa disposed of various waste materials into open pits at Squaw Creek, including hexavalent chromium sludge and coal tar pitch. There are at least 12 identified waste disposal sites in the north field of the Squaw Creek Mine.

The former miners contend that the waste was toxic and that Alcoa knew or should have known the danger the material posed to those who worked near it. The suit asks for unspecified monetary damages from Alcoa for negligence, infliction of emotional distress and loss of consortium.

The suit was filed Oct. 23 in Warrick County Circuit Court. Attorney Peter Racher of the Indianapolis law firm Plews, Shadley, Racher and Braun is representing the plaintiffs.

“We feel very, very strongly that a responsible company would have exposed wastes of these types to a vulnerable population,” said Racher. “No one informed (the plaintiffs) that working with hexavalent chromium was harmful to human skin or human organs. No one told them that coal tar pitch contains many substances known or suspected of being human carcinogens.” * * *

But Alcoa says - as it has contended from the beginning - that the materials are not toxic and did not cause the health problems the miners have had.

“We've believed all along, and according to the information we've had, that those materials would not result in health impacts,” said Alcoa spokesperson Sally Rideout-Lambert. “These are not the type of materials that would cause these health problems.”

Racher disagrees.

“That is a very controversial position that Alcoa takes,” said Racher. “We think that the science had been in place for decades about the adverse human health impacts associated with the substances that were disposed of at the mine. And Alcoa knew that the people who would come in contact with these substances were untrained and unprotected.”

Racher said the Material Safety Data sheets concerning coal tar pitch and hexavalent chromium sludge predict that chronic exposure to the materials will produce exactly the kinds of health effects suffered by the former miners. * * *

In May 2005, Alcoa set up a health screening program for the miners through the University of Cincinnati Center for Occupational Health. The final results of that study are not complete.

Mining ended in the north field at Squaw Creek in 1987, and the mine stopped all production in 1998. A 2004 report from the Indiana Dept. of Environmental Management indicates that the waste material has not moved or become a health hazard.

Another former miner, Bil Musgrave, filed a similar lawsuit against Alcoa in February, but that case has been delayed in federal court.

Racher said that the most recent suit, which is not a class-action, would be able to remain in Warrick County courts.

This ILB entry from Feb. 20, 2006 concerns the Musgrave suit; this one from Oct. 16, 2005, concerns the health screenings.

Posted by Marcia Oddi on Monday, November 13, 2006
Posted to Indiana Courts

Environment - IDEM Enforcement head resigns

Matt Klein, appointed IDEM's head of enforcement and compliance in the Daniels administration, has resigned effective December 1st.

Posted by Marcia Oddi on Monday, November 13, 2006
Posted to Environment

Ind. Courts - More on: Columnist writes Lake County has too many courts

On Saturday the ILB posted this entry headed "Centralize many of Lake County's 27 courts?" quoting from a Munster (NW Indiana) Times report by Bill Dolan that:

The National Center for State Courts told local judges this week they might increase their efficiency by consolidating the county's 27 courts and possibly moving some to a central location, possibly this city [Crown Point] where a dozen courtrooms already exist.
Today I ran across this ILB entry from nearly a year ago:
Mark Kiesling, Munster (NW Indiana) Times columnist, writes today that Lake County has too many courts. [He wrote]:
The reason you have all the courts is because of the infamous 1994 Indiana Supreme Court report known as the "weighted case load study," which looked at all the courts statewide to see if the judges were being overworked.

The conclusion was that Lake County judges in the civil division were laboring in virtual sweatshops. You'd think they were making shoes for Michael Jordan the way the study portrayed the conditions.

By comparison, the judges in the county's criminal division were barely breathing. If you read the study, you'd conclude they came in for a few minutes each morning, had some coffee and then spent the rest of the day on the links.

The problem is that the weighted case load study was a load of horse manure, at least as far as Lake County was concerned.

Posted by Marcia Oddi on Monday, November 13, 2006
Posted to Indiana Courts

Ind. Decisions - Court of Appeals issues 2 today

For publication opinions today (2):

In Richard Brown v. State of Indiana, a 7-page opinion on rehearing, Judge Crone writes:

Brown petitions for rehearing solely on our decision not to address his constitutional proportionality claim, arguing that it has been fully raised before the trial court as well as this Court and that addressing it would serve the interests of judicial economy. We agree and now grant rehearing in this case for the limited purpose of responding to Brown’s argument that the penalty for identity deception is unconstitutionally disproportionate as compared with the penalty for impersonation of a public servant. We affirm our previous opinion in all other respects. * * *

We conclude that the penalty for identity deception is not so severe or entirely out of proportion so as to shock public sentiment and violate the judgment of a reasonable people. See Pritscher, 675 N.E.2d at 731. Thus, the penalty for identity deception is not unconstitutionally disproportionate as compared with the penalty for impersonation of a public servant.

In John A. McMahon v. State of Indiana , a 15-page opinion, Judge Vaidik writes:
John McMahon appeals his seven-and-one-half-year sentence for intimidation, criminal recklessness, and resisting law enforcement. He contends that his sentence is inappropriate in light of the nature of his offenses and his character. Because McMahon committed his offenses on July 21, 2005, he was sentenced under Indiana’s new advisory sentencing scheme, which went into effect on April 25, 2005. Under this new scheme, trial courts are free to impose any sentence authorized by statute regardless of the presence or absence of aggravating or mitigating circumstances. Our task is to determine the role of Indiana’s appellate courts under a system that gives unlimited discretion to trial court judges. We conclude that reviewing aggravating and mitigating circumstances along with other relevant factors is consistent with our constitutional review under Indiana Appellate Rule 7(B). Applying this review to the facts of this case, we cannot say that McMahon’s sentence is inappropriate. Therefore, we affirm the judgment of the trial court. * * *

Conclusion In light of the changes our General Assembly made to Indiana’s sentencing statutes in 2005, we review sentences under a single standard, established by Appellate Rule 7(B): whether the sentence is inappropriate in light of the nature of the offense and the character of the offender, taking into consideration, among other factors, the relevant circumstances found in Indiana Code § 35-38-1-7.1. Applying this standard to McMahon’s case, we cannot say that his sentence is inappropriate.

Posted by Marcia Oddi on Monday, November 13, 2006
Posted to Ind. App.Ct. Decisions

Ind. Law - "Hoosier laws limit physician assistants"

"Hoosier laws limit physician assistants: Indiana is the only state where they’re not authorized to write prescriptions" is the headline to a story by Jennifer L. Boen in the Fort Wayne News-Sentinel. The story begins:

Forty-nine states, plus the District of Columbia, permit physician assistants to write prescriptions. Indiana is the lone exception.

Some say the reason they’re not allowed to in Indiana is turf wars between doctors and what are referred to as “midlevel” health-care providers. Others say it’s just another example of Indiana being behind the times.

Whatever the reasons, the more than 600 PAs practicing in the state hope changes to the current regulations will be made in the 2007 General Assembly.

Six times legislation was introduced that would grant prescriptive rights to PAs, who must work under direct supervision by a li-censed physician.

“We do not practice independently. That is the basis of the profession. We are not seeking to practice on our own,” said Toby Brower, president of the Indiana Academy of Physician Assistants. But they do seek changes to PA licensing laws that would allow the supervising doctor to delegate, as needed, prescription writing to the PA.

A second story by Boen is headed "State’s doctors divided on PAs prescribing: They voted against it at a September convention." It begins:
An ongoing debate exists on why nurse practitioners can write prescriptions, but, in Indiana – and only in Indiana – similarly prepared physician assistants cannot.

Applicants to the University of Saint Francis Physician Assistant program, one of two PA programs in the state, must have: a bachelor’s degree, at least three years of clinical experience, 12 hours of chemistry, 15 hours of biology and six hours of psychology.

Once admitted to the PA program, among the required courses are organic and biochemistry and about 80 hours of pharmacology. Then they must pass the National Commission on Certification of Physician Assistants Exam.

Nurse practitioners must have a bachelor’s degree in nursing before going into a master’s-level nurse practitioner program. After graduation, they have autonomy to prescribe medications.

“That law was written before PAs were in the state,” said Jerry Parsons, a PA at RediMed who also serves on the board of the Indiana Academy of Physician Assistants, which hopes to gain prescriptive rights.

Posted by Marcia Oddi on Monday, November 13, 2006
Posted to Indiana Law

Sunday, November 12, 2006

Environment - Coal is big

"Committed to Coal, and in a Hurry, Too" was the headline to this story in the Nov. 7th NY Times. Here is how it begins:

FAIRFIELD, Tex. — In a huge pit, gigantic bulldozers and earth-moving machines are removing two layers of coal, the last shavings in a monumental task that has dug 200 feet down and expanded across 20 square miles over the last 35 years.

The coal feeds two plants nearby that help keep the lights on and the air-conditioners humming throughout Texas. But in doing so, the operation has released hundreds of millions of tons of carbon dioxide, the main contributor to global warming.

Now, the pit’s owner, the TXU Corporation, is embarking on its next monumental task: the nation’s single largest coal-oriented construction campaign, with a plan to add more than 9,000 megawatts of new capacity, the equivalent of 3.5 percent of the nation’s current coal-fired capacity. That is enough to power millions of homes, using coal from other giant pits like this one and still more in Wyoming.

Even as some utility executives are joining environmentalists in seeing future controls on carbon emissions as inevitable, TXU is betting that it can beat the consensus, placing a $10 billion wager on 11 new coal power plants that will produce copious amounts of global warming gases for decades to come.

[On Monday, TXU announced that in addition to 9,000 megawatts of capacity in Texas, it is considering 7,000 to 14,000 more megawatts of capacity in other parts of the country, possibly including the Northeast and Midwest, which would make it a national player in the industry.]

Maybe this is good energy-system planning, or maybe it is environmental brinksmanship, outsiders say.

Today the Louisville Courier Journal features a story titled "Coal's pitfalls and promises," part of an ongoing special project on global warming. The story by James Bruggers begins:
For decades, Kentucky and Indiana have relied on cheap electricity from vast reserves of coal to light their homes and power energy-intensive industries, from manufacturing plants to aluminum smelters.

But now, because of fears about human-caused global warming, coal has become an international villain, and some say it's only a matter of time before the coal-fired power plants of the South and Midwest feel political heat -- and consumers here get an economic wallop.

"As we come to grips with global warming, coal-producing regions of the country are likely to take a big economic hit if we can't find a way to use coal without releasing gases that cause climate change," said Severin Borenstein, a leading economist and director of the University of California's Energy Institute.

Increasingly, though, coal is being viewed as a possible part of the solution -- if new techniques can be deployed to capture carbon dioxide emissions on a grand scale and trap them deep underground.

And that could keep Kentucky and Indiana, ranked third and eighth in coal production, in the energy business -- although experts predict electricity rates will climb, pinching individual pocketbooks and cutting into industry bottom lines.

"It is going to hit very hard," cautioned David Brown Kinloch, a Louisville energy consultant.

But he and others say that a crackdown on the production of greenhouse gases could eventually help the economy by bringing about money-saving energy efficiency and driving the development of alternative fuels, such as those made from biomass, low-impact hydropower and a new generation of more climate-friendly coal-fired plants.

It's better to "get in on the ground floor (and) not hold out and be the last man standing," said Kenneth A. Colburn, former executive director of an association of Northeast air-quality agencies.

"Look at hybrids. Look at Toyota and Honda vs. General Motors."

Posted by Marcia Oddi on Sunday, November 12, 2006
Posted to Environment | Indiana economic development

Courts - "New Democratic Majority Throws Bush’s Judicial Nominations Into Uncertainty"

"New Democratic Majority Throws Bush’s Judicial Nominations Into Uncertainty" is the headline to a story today by Neil A. Lewis of the NY Times. A quote:

There is a strong consensus that the four most conservative of Mr. Bush’s nominations to the federal appeals courts are doomed. Republicans and Democrats say the four have no chance of confirmation in the next several weeks of the lame-duck Congressional session or in the final two years of Mr. Bush’s term.

The nominees are William J. Haynes II, the Pentagon’s chief lawyer who was responsible for the much-criticized military interrogation policies; William G. Myers III, a longtime lobbyist for the mining and ranching industries and a critic of environmental regulations; Terrence W. Boyle, a district court judge in North Carolina; and Michael B. Wallace of Mississippi, a lawyer who was rated unqualified for the court by the American Bar Association.

Posted by Marcia Oddi on Sunday, November 12, 2006
Posted to Courts in general

Courts - More on: Illinois chief justice doesn't just get mad, he sues

This ILB entry from June 18, 2006 quotes from a long Chicago Tribune reports that began:

A politician might have written a righteous letter to the editor. A different judge may have ignored the matter altogether.

But when Illinois Supreme Court Justice Bob Thomas objected to a series of critical newspaper columns, the pugnacious jurist and former Chicago Bear sued the people who published them.

Now, elevated to chief justice and head of the state's judicial branch, Thomas is waging an unapologetic legal battle that raises some hot questions about political criticism and press freedom--while also fueling an intramural drama of keen interest in the state's legal circles.

The lawsuit alleges that the Kane County Chronicle defamed Thomas and cast him in a false light in articles published three years ago.

It could go to trial in September, offering the rare sight of a top jurist sitting on the other side of the bar, acting as a plaintiff before judges who are at least nominally responsible to the Supreme Court.

Today Russell Working of the Tribune reports, in a story headlined "Judge's lawsuit heading for jury: Writer, chief justice fight for reputations," that begins:
As jurors sit down this week to decide a defamation case brought by Illinois Supreme Court Chief Justice Bob Thomas, they can choose from a couple of theories.

Lawyers for Thomas, the former Bears placekicker who now heads the state's judiciary, cast the case as a struggle to clear their client's name of malicious smears they suggest could cripple his career.

Lawyers for the Kane County Chronicle, former columnist Bill Page and other defendants say it's about free speech, and an elected official's attempt to quash legitimate expression of opinion.

It's a rarity for a sitting Supreme Court justice to appear as a plaintiff in a civil suit. And for two weeks in a Geneva courthouse, spectators have been treated to judicial curiosities: a string of justices on the witness stand, where attorneys addressed them "your honor"; and lawyers from the Illinois attorney general's office representing the judge-witnesses, posing their own objections to questioning.

But behind the rhetoric and the judicial star power, the case has often seemed to boil down to a simpler, time-tested plot line: two men in an all-out fight for their reputations.

In 2003, Page wrote three columns claiming Thomas was biased against former Kane County State's Atty. Meg Gorecki, who faced disciplinary action before the state Supreme Court. Page wrote that Thomas wanted Gorecki disbarred, but then backed off in exchange for a political favor.

For Thomas, the accusations of misconduct--which he says would amount to a crime--were too serious to be ignored.

"A judge's job description is to be fair," he said on the witness stand. "And Bill Page said I can't be fair. He's taken away my integrity and my good name, and I'm here to get it back."

For more, see this entry in How Appealing.

Posted by Marcia Oddi on Sunday, November 12, 2006
Posted to Courts in general

Law - "Athletes, sports leagues and universities around the nation have become increasingly aggressive in protecting what they say is their intellectual property"

"Sports Artist Sued for Mix of Crimson and Tide" is the headline to a front-page law story by Adam Liptak in today's NY Times. It begins:

TUSCALOOSA, Ala., Nov. 7 — In the solemn cathedral of college football devotion and instruction that is the Paul W. Bryant Museum here, a large painting dominates the main chamber. It is called “The Sack,” and it shows an encounter between a Notre Dame quarterback and a human locomotive in crimson and white.

“I’ve never been hit like that before,” the quarterback, Steve Beuerlein, said after his near-lethal sack by Cornelius Bennett in 1986, in the University of Alabama’s first victory ever over his team.

Daniel A. Moore, who painted “The Sack” and scores of other renditions of signal moments in Alabama football history, said he felt something similar last year, when his fax machine began to spit out a lawsuit from the university.

Mr. Moore’s paintings, reproduced in prints and on merchandise, violated the university’s trademark rights, the suit said. It asked a federal judge to forbid him to, among other things, use the university’s “famous crimson and white color scheme.”

Athletes, sports leagues and universities around the nation have become increasingly aggressive in protecting what they say is their intellectual property, and their claims have met with a mixed response from judges and fans. But almost no one here thinks the suit against Mr. Moore is a good idea.

“This lawsuit is the equivalent of the Catholic Church suing Michelangelo for painting the Sistine Chapel,” said Keith Dunnavant, an Alabama alumnus and the author of “Coach: The Life of Paul ‘Bear’ Bryant.”

A university spokeswoman, Cathy Andreen, declined repeated requests for interviews with university officials and lawyers, on what she said was the advice of counsel.

James Glen Stovall, who taught journalism at the university for 25 years, said only one sort of person would support the suit.

“I can see why, if you’re sitting in a roomful of lawyers, you might come to that conclusion,” Mr. Stovall said. “But no one outside of that room would say: ‘Hey, that’s a good idea. Let’s sue Daniel Moore.’ ”

Posted by Marcia Oddi on Sunday, November 12, 2006
Posted to General Law Related

Saturday, November 11, 2006

Indiana Decisions - Commentary on 7th Circuit's open source ruling [Updated]

Commenting on Judge Easterbrook's opinion this week In Wallace, Daniel v. Int'l Business Machines (SD Ind., Richard L. Young, Judge) (ILB entry here), Infoworld reports, in a story headed "Open Source holds up in court":

"[T]he GPL and open-source have nothing to fear from the antitrust laws," writes The U.S. Court of Appeals for the Seventh Circuit's Judge Easterbrook, reports InternetCases.com.
Plaintiff Wallace filed an antitrust suit against IBM, Red Hat and Novell, arguing that those companies had conspired to eliminate competition in the operating system market by making Linux available at an "unbeatable" price (free) under the General Public License ("GPL"). The U.S. District Court for the Southern District of Indiana dismissed the case, finding the plaintiff had suffered no antitrust injury. The Seventh Circuit affirmed.

"Although antitrust law serves the interests of consumers rather than producers, the Supreme Court has permitted producers to initiate predatory-pricing litigation," Judge Easterbrook wrote in the November 9 decision. "This does not assist Wallace, however, because his legal theory is faulty substantively."

Attorney Evan Brown, writing for InternetCases.com, notes, "Perhaps most significantly, Wallace had not contended that software available under the GPL would lead to mononpoly prices in the future. The court observed the anomalous thinking behind any conclusion that it would, 'when the GPL keeps price low forever and precludes the reduction of output that is essential to monopoly.'"

InfoWorld's Matt Asay writes in the Open Sources blog:

Besides a weak understanding of the law, Wallace is unfortunately mired in the proprietary past. His economic reasoning actually resembles that of the proprietary software vendors today. They may actually be dumbfounded by Easterbrook's reasoning. :-)

But let me state it clearly for the record: open source does not mean you have a divine right to profit margins or revenues. It's about freedom. The ability to make money from it is something you have to earn.

Actually, Matt Asay's entire post - titled "The GPL doesn't violate US antitrust law (Duh!)" - is well worth a read - access it here.

[Updated] The ILB took a look at some of the briefs in this case, available here (06-2454). Defendant-Appellee IBM was represented by Barnes & Thornburg, Defendants-Appellees Red Hat and Novell were represented by Ice Miller. There appears to be no brief on file for Plaintiff-Appellant Daniel Wallace.

Posted by Marcia Oddi on Saturday, November 11, 2006
Posted to Ind. (7th Cir.) Decisions

Law - How do you bill 3200 hours a year? Yes, you read that right - "3200 hours"

"3,200 Hours a Year? You Gotta Be Kidding Me!" is the heading of this entry in the WSJ Law Blog. In an earlier post, the WSJ Law Blog had quoted from a NY Times story yesterday profiling attorney Silda Wall Spitzer, the wife of newly-elected New York State Governor, Elliot Spitzer. This quote from the story caught the attention of many readers:

Indeed, where Mr. Spitzer takes pride in his reputation as a crusader, Ms. Wall Spitzer thrives on negotiation, and misses the deal-making days of her legal career.

“It was a very exciting time to be doing mergers and acquisitions, the whole poison pill era,” she said, referring to the influential hostile-takeover innovation. As an associate at Skadden, Arps, she routinely billed about 3,200 hours a year, or more than 60 hours a week on average. She recalled her share of successive all-nighters, and trying to catch an hour’s sleep underneath a conference room table, “because you couldn’t turn out the lights in the office.”

The result is the very interesting WSJ Law Blog entry asking "Is it possible to bill 3,200 hours a year?" There are 70 comments so far.

Posted by Marcia Oddi on Saturday, November 11, 2006
Posted to General Law Related

Courts - Results of 2006 ballot initiatives in the various states

The National Center for State Courts has a report titled "State-by-State Ballot Initiatives Results – November 2006," presenting a comprehensive overview of what happened with each of the many initiatives and proposals for constitutional change on the ballots of the various states last Tuesday. Access it here.

Posted by Marcia Oddi on Saturday, November 11, 2006
Posted to Courts in general

Ind. Courts - Wabash Circuit Court among those receiving grant

The Wabash Plain Dealer reports:

The Wabash Circuit Court here was among courts in 70 counties sharing in more than half a million dollars in grant funding to upgrade equipment and training in light of new federal regulations concerning the Indiana Bureau of Motor Vehicles.

The grants will allow courts to more quickly transmit data electronically to the BMV. The new regulations require counties, within 10 days, to notify the BMV of serious offenses committed by Commercial Drivers License holders.

Said Indiana Chief Justice Randall Shepard, “We wanted to bring local courts the tools and technology they needed to meet the new federal regulation. Keeping unsafe drivers off our roadways is important for the safety of all Hoosiers.”

Posted by Marcia Oddi on Saturday, November 11, 2006
Posted to Indiana Courts

Ind. Courts - Centralize many of Lake County's 27 courts?

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

CROWN POINT | A court reform organization is suggesting changes in how and where Lake County courts do business.

The National Center for State Courts told local judges this week they might increase their efficiency by consolidating the county's 27 courts and possibly moving some to a central location, possibly this city where a dozen courtrooms already exist.

"What I think the national center is looking to implement is more cohesiveness: centralized administration, centralized probation departments, centralized public defender staffs, centralized courts," Chief Lake County Superior Court Judge John Pera said Friday,

He and Senior Superior Court Civil Division Judge Gerald Svetanoff said they realize talk of moving court facilities could be political dynamite.

The National Center for State Courts, headquartered in Williamsburg, Va., is working on behalf of the Good Government study, an effort to make government more efficient. It is privately funded by BP, Mittal Steel, NiSource, U.S. Steel and Whiteco.

Ken Murray, a consultant coordinating the overall study of county government, said Wednesday's meeting with local judges was a review of the best practices of other courts around the country.

"We give them the opportunity to respond to it. At this point nothing constitutes a formal recommendation," Murray said, adding the report won't be made public before next month.

Senior Superior Court Civil Division Judge Gerald Svetanoff, who sits in Gary, said the report was a comprehensive mixture of routine administrative improvements and other suggestions he called pie in the sky.

The county has a mixture of courts with overlapping jurisdictions. There already are 12 state and municipal courts in Crown Point, four in Hammond, three in Gary and two in East Chicago. There are single municipal courts in Hobart, Lake Station, Lowell, Merrillville, Schererville and Whiting.

"One of the recommendations is that all of the courts be centrally located in Lake County, the city and town courts be eliminated and taken over by the Superior Court," Pera said.

Svetanoff said, "The idea of bringing in all of the peripheral courts in the system would require a lot of legislative changes and a huge (cash) outlay.

"What is going to happen in Gary, Hammond, East Chicago that don't really have access to transportation to get out to Crown Point? How are they going to be able to participate in the court process? That would be a big issue," Svetanoff said.

Pera said it might make more sense to keep municipal and county division courts -- heavily used by the public -- where they are, but centralize civil courts used mostly by lawyers.

Lowell Town Judge Thomas Vanes said Friday he wasn't made a part of the Wednesday's meeting and questions the motives of those making the suggestions.

"This is being run by the National Center for State Courts, which now wants more state courts. Big surprise. I would guess the national association of concrete manufacturers probably wants more highways," Vanes quipped.

Posted by Marcia Oddi on Saturday, November 11, 2006
Posted to Indiana Courts

Friday, November 10, 2006

Law - "How Republicans' Gerrymandering Efforts May Have Backfired"

The free version of the Wall Street Journal has a very interesting story today headed "Redistricting: Home to Roost." Here are just a few quotes:

WASHINGTON -- Gerrymandering was supposed to cement Republican control of the House of Representatives, offering incumbents a wall of re-election protection even as public opinion turned sharply against them. Instead, the party's strategy of recrafting district boundaries may have backfired, contributing to the defeats of several lawmakers and the party's fall from power.

The reason: Republican leaders may have overreached and created so many Republican-leaning districts that they spread their core supporters too thinly. That left their incumbents vulnerable to the type of backlash from traditionally Republican-leaning independent voters that unfolded this week.

That helps to explain why three of four Republican incumbents in the Philadelphia area were beaten this week, while the remaining incumbent hung on by just a few thousand votes. In Florida, meanwhile, state lawmakers had shifted some Republican voters from the secure district of former Rep. Mark Foley in an attempt to shore up the re-election chances of Rep. Clay Shaw without risking the Foley seat. Instead, Democrats took both. In Texas, former Majority Leader Tom DeLay's decision to transfer thousands of stalwart Republican voters from his district in 2004 to boost a neighboring seat heightened the burden on the write-in candidate trying to hold Mr. DeLay's seat. She lost it.

"The trade-off in redistricting is between safety and maximizing the numbers," says Alan I. Abramowitz, a political scientist at Emory University in Atlanta. "You can't do both." * * *

The drive to maximize seats was seen by Republicans as a matter of survival. Democrats regained ground every cycle after the 1994 Republican takeover. By 2000, the Republican majority had shrunk to 221 seats from 231 in 1994. Democrats, aligned with the chamber's one independent, needed just six seats to retake control in 2002.

So Mr. DeLay and House Speaker Dennis Hastert turned to their allies in the statehouses to redraw congressional district boundaries to erase Democratic seats and give Republicans new ones. "We wish to encourage you in these efforts, as they play a crucial role in maintaining a Republican majority," the two leaders wrote in a letter to Pennsylvania lawmakers.

There are three weapons to employ in redistricting. "Packing" involves concentrating a group of voters, such as African-Americans, in one district. "Cracking" means splitting up a group of voters to diminish their influence. "Pairing" forces two incumbents into the same district. Pennsylvania lawmakers used them all.

Here is a list of earlier ILB entries referencing "redistricting."

Posted by Marcia Oddi on Friday, November 10, 2006
Posted to General Law Related

Ind. Decisions - Transfer list for week ending November 10, 2006

Here is the Indiana Supreme Court's transfer list for the week ending November 10, 2006.

Nearly three 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, November 10, 2006
Posted to Indiana Transfer Lists

Ind. Decisions - List of Court of Appeals NFP opinions issued for the week ending November 10, 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 November 10, 2006.

Posted by Marcia Oddi on Friday, November 10, 2006
Posted to NFP Lists

Ind. Courts - Grant Circuit Court Judge R. Thomas Hunt sues over cut pay

Thanks to the Marion Chronicle Tribune for comprehensive coverage today of a suit filed by Grant Circuit Court Judge R. Thomas Hunt. The story includes a link to the 6-page complaint itself - "Complaint for declaratory judgment and mandate to compel payment of salary." Barry William Walsh reports:

After asking the county several times for the money it cut from his 2006 budget, Circuit Court Judge R. Thomas Hunt on Thursday sued the council, the Grant County commissioners and the Grant County auditor.

He filed the suit to regain the $5,000 in supplemental salary that the county cut in Grant Superior Court 1. * * *

At issue is a portion of the Indiana Constitution that reads, "The justices of Supreme Court and Judges of the Court of Appeals and of the Circuit Courts shall at stated times receive a compensation which shall not be diminished during their continuance in office."

Hunt, whose salary was raised from $80,500 to $110,500 in 2006, also was authorized a supplemental salary amount of up to $5,000 per year to be paid by the county, an amount that was paid to Hunt each pay period through Dec. 31, 2005, court documents said.

By eliminating the $5,000 portion of his salary paid by Grant County, Hunt believes his salary was cut in 2006. * * *

In August or September 2005, the suit claims, Hunt appeared before the council with his 2006 budget for Grant Circuit Court. That budget included his 2006 salary from the state and the additional $5,000 from the county.

According to the six-page civil suit, instead of approving Hunt's 2006 budget with the additional $5,000, the council refused to include the $5,000. After Jan. 1, 2006, the payments of the $5,000 were eliminated from Hunt's salary.

Also filed Thursday was an order of recusal by Grant Superior Court 1 Judge Jeffrey D. Todd.

In recusing himself, Todd wrote that no judge in Grant County could preside over the case, and that the clerk of the courts would have to select a special judge to hear the case.

"Situations like this are not that unusual, that all the judges might have a conflict," Todd said. "An out-of-county judge will be selected from a list maintained by the clerk's office. ... It's a revolving list, and whoever's name is up next will be chosen."

Todd said the special judge could be selected as early as next week, but he said the process could take longer if the selected judge refuses to hear the case.

While Hunt believes the council's refusal to pay him the $5,000 that it used to pay all county judges amounts to a pay cut, the council disagrees. The council made the decision to stop paying the $5,000 after the state raised all judges' salaries by $30,000.

Of additional interest are the comments from the public reacting to the story -- scroll to the bottom of the story to view them.

Posted by Marcia Oddi on Friday, November 10, 2006
Posted to Ind. Trial Ct. Decisions | Indiana Courts

Ind. Courts - "Judge hints molest suspect faking need for interpreter"

Dionne Waugh of the Fort Wayne Journal Gazette reports today:

An Allen Superior Court judge accused a Somali defendant of playing games Thursday when he said he didn’t understand a court hearing to delay his case.

“When I came in I saw him talking (in English) to the defendant he’s attached to and I don’t think he speaks Mai Mai,” Allen Superior Judge Fran Gull said, referring to the defendant’s native language.

Gull said she also saw Omar A. Abshir, 20, of the 2800 block of Westbrook Drive, talking to his attorney, Stephen Miller, and she didn’t think he spoke Mai Mai either.

After talking with Miller, Gull set another hearing for next week so that an interpreter could be present to explain the legal proceedings to Abshir.

Abshir is accused of molesting a child and threatening the child with a knife. He’s charged with criminal confinement and three counts of child molesting, and is being held in jail on $110,000 bail.

The court has had difficulty finding a Mai Mai interpreter, Gull said in court.

In Indianapolis, where there is a burgeoning population of Somali immigrants, Gull said their courts have run into problems with the translators being friends or related to the defendants, which has prevented them from translating.

Abshir’s best friend translated for him at a previous proceeding.

Though Gull called a 24-hour language company in California on Thursday morning, that company couldn’t find such an interpreter on such short notice.

Posted by Marcia Oddi on Friday, November 10, 2006
Posted to Ind. Trial Ct. Decisions | Indiana Courts

Thursday, November 09, 2006

Ind. Courts - Daviess County receives $50,000 federal Homeland Security grant

Sally Petty of the Washington Herald-Times reports:

In only a week, the sheriff’s department and local emergency management applied for and received a $50,000 federal Homeland Security grant to put cameras and metal detectors in the courthouse.

Sheriff Jerry Harbstreit told council members at their meeting Wednesday morning that [Daviess Circuit Court] Judge Robert Arthur approached him about applying for the grant after learning that Martin County got one. But the deadline was in one week, so he worked quickly to write and submit the grant through Emergency Management.

The grant, which required no matching funds, was used to install more than 25 security cameras and two walk-through metal detectors at the courthouse.

Through a fiber optic cable connecting the courthouse to the jail, the operating equipment and monitor for the camera system have been located at the security center, where dispatchers can see the monitor as needed, explained Harbstreit.

Courthouse offices already have panic buttons which automatically page the sheriff’s department. But now when deputies are called, dispatchers can use the cameras to see what the problem is and notify deputies of the situation.

They can also describe to deputies suspects who might be fleeing as deputies arrive and can track suspects with the cameras.

The cameras are located in various offices where trouble might arise, in courtrooms, in hallways, in the lobby and outside.

They are focused on doors, counters and areas where the public might go, not on employees’ desks, and the monitors are not watched constantly, only when needed, said Harbstreit. The cameras do not record sound and in courtrooms do not show the jury.

Posted by Marcia Oddi on Thursday, November 09, 2006
Posted to Indiana Courts

Law - Here is a lawyer web site for you!

First off, it is NOT a blog, it IS a lawyer website. Second, thank the WSJ Law Blog for pointing it out. Read the WSJ entry here. Then check out the Willie E. Gary website here.

[More] Out of curiosity, I looked up another well-known attorney's site - Gary Spence. Check it out here.

Posted by Marcia Oddi on Thursday, November 09, 2006
Posted to General Law Related

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

In Wallace, Daniel v. Int'l Business Machines (SD Ind., Richard L. Young, Judge), a 7-page opinion, Judge Easterbrook writes:

Does the provision of copyrighted software under the GNU General Public License (“GPL”) violate the federal antitrust laws? Authors who distribute their works under this license, devised by the Free Software Foundation, Inc., authorize not only copying but also the creation of derivative works—and the license prohibits charging for the derivative work. People may make and distribute derivative works if and only if they come under the same license terms as the original work. Thus the GPL propagates from user to user and revision to revision: neither the original author, nor any creator of a revised or improved version, may charge for the software or allow any successor to charge. Copyright law, usually the basis of limiting reproduction in order to collect a fee, ensures that open-source software remains free: any attempt to sell a derivative work will violate the copyright laws, even if the improver has not accepted the GPL. The Free Software Foundation calls the result “copyleft.” * * *

Daniel Wallace would like to compete with Linux—either by offering a derivative work or by writing an operating system from scratch—but maintains that this is impossible as long as Linux and its derivatives are available for free. He contends that IBM, Red Hat, and Novell have conspired among themselves and with others (including the Free Software Foundation) to eliminate competition in the operating system market by making Linux available at an unbeatable price. Under the GPL, which passes from user to improver to user, Linux and all software that incorporates any of its source code will be free forever, and nothing could be a more effective deterrent to competition, Wallace maintains. The GPL is the conspiracy as Wallace sees things; it is a joint undertaking among users and creators of derivative works to undercut the price of any potential rival. But the district judge dismissed the complaint, ruling that Wallace does not suffer antitrust injury, see Brunswick Corp. v. Pueblo Bowl-O-Mat, Inc., 429 U.S. 477 (1977), because he is a would-be producer rather than a consumer.

The GPL and open-source software have nothing to fear from the antitrust laws.

In Hall, Merrill E. v. Norfolk Southern (ND Ind., Rudy Lozano and Philip P. Simon, Judges), a 16-page opinion, Judge Stykes begins:
This case requires us to consider what constitutes a “mistake concerning the identity of the proper party” that will permit an amended pleading to relate back to the date of the original complaint under Federal Rule of Civil Procedure 15(c)(3). Also at issue is the scope of the statutory liability exemption in 49 U.S.C. § 11321 for railroads that participate in consolidation transactions approved by the Surface Transportation Board (“STB”).

Posted by Marcia Oddi on Thursday, November 09, 2006
Posted to Ind. (7th Cir.) Decisions

Ind. Decisions - Court of Appeals issues 1 today (and 11 NFP)

For publication opinions today (1):

In Citizens Industrial Group v. Heartland Gas Pipeline, LLC, et al., a 9-page opinion, Judge Mathias writes:

Heartland Gas Pipeline, LLC (“Heartland”) and Board of Directors for Utilities of the Department of Public Utilities of Indianapolis, d/b/a/ Citizens Gas & Coke Utility (“Citizens Gas”), filed a petition with the Indiana Utility Regulatory Commission (“IURC”) seeking, among other things, approval of a proposed transfer of storage capacity to Heartland. The IURC approved the proposal. Citizens Industrial Group (“CIG”), an ad hoc group of industrial customers, now appeals, arguing that the approved proposal violates a previous settlement agreement. Concluding that CIG did not file a timely appeal under the appellate rules, we dismiss. * * *

Concluding that CIG failed to file a timely notice of appeal as required by Indiana Rule of Appellate Procedure 9(A)(3), we dismiss.

NFP civil opinions today (2):

In the Matter of the Parent-Child Termination of K.E. v. LaPorte County Department of Child Services (NFP)

Anthony Davis v. Marion County Office of Family & Children (NFP)

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

Rodney M. Lopez v. State of Indiana (NFP)

Bruce A. Waldon v. State of Indiana (NFP)

Eugene K. Stephic v. State of Indiana (NFP)

Ross A. Mossteller v. State of Indiana (NFP)

Amy R. Ravellette v. State of Indiana (NFP)

Rodney S. Segety v. State of Indiana (NFP)

Lionel McElroy v. State of Indiana (NFP)

Sean A. Kubiak v. State of Indiana (NFP)

Travis N. Davis v. State of Indiana (NFP)

Posted by Marcia Oddi on Thursday, November 09, 2006
Posted to Ind. App.Ct. Decisions

Ind. Law - Campaign sign prohibition - urban myth

Frank Gray of the Fort Wayne Journal Gazette has a column today that begins:

Lore has it that in Indiana, campaign signs must be removed within 30 days of an election.

That, in most of the state, is just another urban legend.

The state has no laws at all addressing campaign signs. Decisions like that are left up to counties, cities and towns, we were told by the state’s Election Division.

Allen County has no laws concerning political signs, either. You can put as many as you want pretty much anywhere you want and leave them there as long as you want. In the county, campaign signs are like meteors. Once they hit the ground, they can stay there forever.

That bothers some people. Last spring, near New Haven, a guy who said the signs were an eyesore and who believed they were illegal, picked up a bunch of them and tossed them into the back of his pickup truck. He was arrested and charged with theft. It’s not clear what came of the case, but he called the newspaper to talk about it, saying he did it to call attention to himself and a custody dispute he’s involved in.

Posted by Marcia Oddi on Thursday, November 09, 2006
Posted to Indiana Law

Ind. Courts - "Attorney fields questions about lawsuit against Eli Lilly"

Crystal Garcia of the Terre Haute Tribune-Star, reports:

TERRE HAUTE — About 175 people have come forward to share their stories to fuel the race discrimination lawsuit against Eli Lilly and Co., said one of the plaintiffs in the case, Cassandra Welch, at a public information session Wednesday night. * * *

The federal lawsuit, filed April 21, alleges that black employees of Lilly have been victims of unlawful discrimination and that the company paid black employees less than their white counterparts. It also alleges black employees were passed over for promotions and that Lilly has retaliated against them when they complained of discrimination.

Posted by Marcia Oddi on Thursday, November 09, 2006
Posted to Indiana Courts

Ind. Courts - "Jay courts, clerk draw computer funds"

"Jay courts, clerk draw computer funds" is the heading of a brief item today in the Muncie Star-Press:

PORTLAND -- Jay Circuit Court, the Jay County clerk's office and Dunkirk City Court have been awarded grants to upgrade their computer system.

The Indiana Supreme Court's judicial technology and automation committee and the Indiana Bureau of Motor Vehicles awarded the courts and clerk's office about $7,000 in grant funds for the upgrades and new equipment, designed largely to inform the BMH of serious offenses committed by holders of commercial driver's licenses.

Posted by Marcia Oddi on Thursday, November 09, 2006
Posted to Indiana Courts

Ind. Courts - More winners and losers at the local level

"Allen will remain judge" reports Halea Franklin, staff writer for the Greene County Daily World:

After being appointed to fill the seat of Greene County Circuit Court Judge on July 31, Republican Erik “Chip” Allen has been chosen to continue in that position.

Allen, who took over as judge when former Circuit Court Judge David K. Johnson resigned and took an appointment from Gov. Mitch Daniels to serve on the Indiana State Alcohol and Tobacco Commission, defeated Democrat Joe Sullivan 6,109 votes to 4,487 in Tuesday's election.

"Ligonier GOP lawyer to fill court opening" reports Kara Lopp of the Fort Wayne Journal Gazette:
Unofficial election results show Republican Ligonier attorney Robert Kirsch, 53, defeating Democratic public defender Jon Owen, 55, of Kendallville, by 984 votes Tuesday in the race for Noble Superior I Court.

Posted by Marcia Oddi on Thursday, November 09, 2006
Posted to Indiana Courts

Ind. Decisions - Report on reversal of $39 million Outback verdict

Nick Werner of the Muncie Star-Press reports this morning on the Supreme Court's decision yesterday:

MUNCIE -- The Indiana Supreme Court on Wednesday ordered a retrial in a lawsuit against Outback Steakhouse that resulted in a $39 million civil judgment in favor of a Muncie couple.

David and Lisa Markley sued the restaurant after they were severely injured when their motorcycle was struck by a motorist on July 21, 1997.

The couple alleged that William Whitaker, Albany, became intoxicated at the grand opening party for Outback's Muncie restaurant, where drinks were served free or for as little as a dime each.

A Delaware Circuit Court 1 jury in June 2003 found in favor of the Markleys and ordered the restaurant to pay them $39 million.

The Supreme Court issued a ruling today, however, that attorneys for the Markleys -- Michael J. "Mick" Alexander and Donald McClellan -- had failed to notify Outback's attorneys about the planned testimony of a critical witness before the trial, an omission that constituted misconduct and warranted a new trial.

That witness, former Outback server Patrice Roysdon, eventually testified Whitaker was visibly drunk at Outback, changing her account of the evening from an earlier deposition.

Efforts to contact attorney Alexander for comment on Wednesday were unsuccessful.

A new trial has not been scheduled.

Whitaker pleaded guilty in 1999 to two counts of failure to stop after an accident resulting in serious injury, a class D felony, and served a three-year sentence that combined home detention and probation.

Posted by Marcia Oddi on Thursday, November 09, 2006
Posted to Ind. Sup.Ct. Decisions

Wednesday, November 08, 2006

Ind. Gov't. - Suggestions for the new legislative leadership - Part I: The Video Archives

A new Indiana General Assembly will convene November 20th (organization day). It will have a new Speaker of the House and a new President Pro Tem. There are some concerns that the ILB strongly believes should be addressed. Here is the first.

The Video Archives of the General Assembly.
Here is some background. First, from a Nov. 21, 2005 ILB entry, a quote from the Star: "The 2005 legislative session was the first year for the proceedings on the House floor to be video broadcast over the Web. That feature also will be improved this year to allow observers to see roll call votes on bills and the names of legislators who are speaking." This was followed by my comments, including:

The House also archives its session videos, which makes them much more useful and valuable. For one thing, citizens can watch in the evenings or on the weekend. To illustrate: here is the last session. We can only hope that the House maintains this archive, perhaps as a supplement to the Journal. Or as a DVD.

The same goes for the new videos of the Ways & Means meetings, and hopefully more committees will follow.

The Indiana Senate is in danger of lagging way behind here. For one thing, it did not archive its videos during the last session (or if it did, it did not make them available online). This means that the citizen or student who cannot get away from work or school to watch the General Assembly cannot do it over the Internet either, except for the times the Senate is meeting in the late afternoon or evening. And there is no indication thus far that it will extend internet coverage to its committees.

Now, from a Feb. 5, 2006 ILB entry. It begins with a quote from the Fort Wayne Journal Gazette:
Allowing Hoosiers to watch the House floor debate via the Internet has been a welcome move forward into the 21st century. But what happens when a member goes too far?

House Speaker Brian Bosma was faced with that situation last week when one Republican member during debate on a bill made an inside joke about another GOP lawmaker that was construed by many to be an allegation of marital infidelity. And he did so knowing the other man’s wife was watching the proceedings on the Internet.

Bosma immediately chastised the member, who later gave a quick apology. But the damage was done.

The question then became, what do they do about the joke on the Internet archive? In the end, Bosma and House Democratic Leader Pat Bauer agreed on a motion to allow the lawmaker to withdraw his comments from the permanent record, which includes the Internet. By the next morning, the online video had been spliced in a way that cut out the comment.

Everyone seemed to agree on removing this particular item, but there are no rules written into House procedure on the issue. So what happens if a member simply embarrasses himself and wants to remove that?

Those are questions Bosma is struggling with. “This is the first time we had to deal with this issue, and we had to make some hasty decisions, maybe I should say prompt decisions, on the matter,” he said. “We are at least setting some temporary precedent until our rules can be expanded to cover this issue.”

Bosma also promised he would never unilaterally alter the video record and hopes future Speakers would not as well.

Next are the ILB comments:
More questions. The video archives of the Indiana House sessions are important Indiana historical documents. The Indiana Senate does not even maintain an archive of its session days. The House, to its credit, does, at least during the session.

But where is the archive of the 2005 House session? This was removed from the General Assembly website when this year's session began. Perhaps this historical treasure trove was summarily pitched. If not, it should again be made accessible online for the citizens of the State. And why not post them as video podcasts, so that citizens can download them and view them more easily. Many citizens do not have internet connections that permit viewing multi-hour sessions without tecnhical interference.

Thoughts. It is time for the General Assembly to move into the 21st century. Rep. Bosma has made a good start. But why leave the way our General Assembly's history is recorded and maintained up to the judgment of each individual House and Senate leader? Put it into law.

Next, take a look at this entry from May 18, 2006 that asks "Why can Ohio do it better?" Some quotes:
You can watch live video streams of the Ohio House, Senate, and Supreme Court.

Better still, there are archives. REAL ARCHIVES. The Ohio leadership presumably doesn't have the concerns the Indiana legislative leadership has expressed about providing an accessible record of its work to the public.

The Senate video archive goes back to 1997. For every day the Senate has been in session from 1997 forward, you can view the entire session day, or select portions, because the broadcast is indexed!

Recommendations to the Indiana General Assembly.

First, both Houses should stream their session days live, plus archive the videos, permanently. Currently the House archives during the session, but does not retain the videos once the next session starts. The Senate doesn't even go that far -- you can only watch the Senate session online as it happens; nothing is preserved.

Second, all committee meetings should be streamed live, plus archived. Right now, the public cannot even get a seat in a committtee hearing that allows them to see and hear what is going on.

Third, "archived" means make permanently available online. Look again at Ohio - you can watch Ohio proceedings online live or archived, going back through 1997, plus order DVD or VHS videos. Their plan is soon to make video-podcasts downloadable also.

Fourth, the House and Senate daily sessions should be indexed (eg SB #238 - Third Reading), as in Ohio, allowing the viewer to go immediately to the desired position. (It might be possible to do this in conjunction with the Journals.) In fact, the entire Ohio setup should be studied, as they seem to be light years ahread of Indiana, tech-wise!

Fifth, the process - archiving the videos, access, prohibitions against editing out portions - should be detailed in statute or in the joint rules.

In 1851 the debates and journals of the Indiana Constitutional Convention were carefully and laboriously preserved for the ages. We continue to use and reference them today. Recording and preserving today's sessions of the General Assembly is a very simple thing. But we are not doing it very well.

Posted by Marcia Oddi on Wednesday, November 08, 2006
Posted to Indiana Government

Ind. Decisions - Supreme Court issues one today

In Outback Steakhouse of Florida, Inc., Toncredi, Inc., and John Broz, d/b/a Outback Steakhouse of Muncie v. David D. and Lisa K. Markley, a 23-page opinion, Justice Boehm writes:

The plaintiffs’ response to the defendants’ discovery request failed to identify a critical witness whose identity was known to plaintiffs’ counsel. Under the circumstances of this case we conclude that this omission, in concert with other acts and omissions attributable to plaintiffs’ counsel, constituted misconduct requiring a new trial. * * *

Outback argues that the failure to disclose Roysdon’s identity and the substance of her 1997 statement in response to Outback’s 1999 interrogatories violated Indiana Trial Rules 26 and 33. Second, Outback argues that Alexander’s failure to inform Outback that he intended to call Roysdon and that she would recant her 2001 deposition testimony at trial violated the duty to supplement discovery responses under Trial Rule 26(E). Outback argues that these discovery abuses constitute “misconduct” which denied Outback a fair trial. Outback also claims miscon-duct by plaintiffs’ counsel in closing argument. As a remedy Outback seeks a new trial at which Roysdon’s testimony is excluded and recovery of its trial and post-trial attorney fees from the Markleys and/or the Markleys’ counsel.

As explained below, we conclude that the plaintiffs’ failure to identify Roysdon as a person with knowledge of the relevant facts was a negligent if not intentional breach of its discovery obligations. Subsequently, plaintiffs failed to supplement their response with the substance of her change in testimony. As these events unfolded, these omissions cascaded into a closing ar-gument that materially misled the jury. The cumulative effect was misconduct prejudicing Outback’s defense. * * *

Notwithstanding our conclusion that Alexander’s conduct is not grounds for relief from a judgment under Trial Rule 60(B), we conclude that his conduct warrants investigation by the Indiana Disciplinary Commission. Rule 3.3(a)(1) of the Indiana Rules of Professional Conduct provides that an attorney “shall not knowingly make a false statement of fact or law to a tribu-nal.” The commentary explains that candor is necessary to preserve the integrity of the adjudica-tive process. Rule 4.1(a) provides that an attorney shall not “knowingly make a false statement of material fact or law to a third person” in the course of representing a client. The commentary to this Rule explains that misrepresentations include “partially true but misleading statements.” Rule 8.4(d) provides that it is also misconduct for an attorney to engage in conduct “prejudicial to the administration of justice.” We leave to the Disciplinary Committee to consider whether these facts are as they appear from this record and if so whether any charges are appropriate.

Conclusion. Outback raised several issues before the Court of Appeals that are not raised in its peti-tion for transfer. Because we agree that Outback’s motion for a new trial must be granted, we need not address these issues. The order of the trial court denying Outback’s motion for relief from a judgment is reversed. This cause is remanded with direction to vacate the judgment and schedule a new trial.

For background, see this August 1, 2005 ILB entry, titled "Appeals court upholds $39 million judgment", and this one from Feb. 2, 2006 ("Supreme Court grants transfer to Outback Steakhouse case").

Posted by Marcia Oddi on Wednesday, November 08, 2006
Posted to Ind. Sup.Ct. Decisions

Ind. Decisions - Court of Appeals issues 4 today (and 6 NFP)

For publication opinions today (4):

In Kristopher H. Hofferth v. State of Indiana (Jasper Circuit Court, Judge Daugherty), a 9-page opinion, Judge Riley concludes:

The record before us does not indicate the trial court ever tried to determine if Hofferth had the resources to hire an attorney. Rather, it is clear Hofferth had financial difficulties and could not retain and compensate counsel within the trial court’s arbitrary timeline. It may be possible that a defendant possessed of ample financial wherewithal could waive his right to hire private counsel by not promptly, or timely, acting on the right. However, in such an instance the trial court record should clearly reflect the constructive waiver and it should reflect a knowing and intelligent waiver made in open court.

At no time did Hofferth indicate he wished to represent himself. Rather, he repeatedly indicated to the trial court that he did not have the requisite skills necessary to effectuate his own defense, and that he desired to be represented by counsel. Consequently, it is clear from the record before us that the trial court blatantly ignored Hofferth’s right to counsel. There is no hint in the record that the slightest effort was made to protect one of the most precious rights an accused possesses. This court has no other alternative than to reverse the conviction and remand this cause for a new trial, a trial in which Hofferth’s right to counsel is the subject of greater concern and less disdain.

CONCLUSION. Based on the foregoing, we find Hofferth was denied his Sixth Amendment right to counsel. We reverse, vacate, and remand to the trial court.

In Safe Auto Insurance Company v. Farm Bureau Insurance Company, et al., a 9-page opinion, Judge Robb writes:
Case Summary and Issue. Safe Auto Insurance Company (“Safe Auto”) appeals from the trial court’s order denying its motion for summary judgment, and granting Farm Bureau Insurance Company’s (“Farm Bureau”) motion for summary judgment, in a dispute arising from Safe Auto’s insurance policy coverage of Heather Duran. Safe Auto raises for review the issue of whether it is obligated to cover Duran for vicarious liability under the policy’s terms, including a policy provision required under Indiana law pertaining to liability for permissive users. Indiana law obligates coverage of the owner of a vehicle for vicarious liability, and we conclude that material misrepresentations made by Duran do not hinder such coverage. We therefore affirm summary judgment in favor of Farm Bureau and against Safe Auto. * * *

Conclusion. Although Badillo is excluded from coverage under the terms of Duran’s insurance policy, Indiana Code section 27-1-13-7 requires Safe Auto to insure Duran for vicarious liability arising from the negligence of a permissive user, even those otherwise excluded. In addition, Duran’s misrepresentation at the time of her application for the policy does not affect Safe Auto’s obligation to provide coverage for vicarious liability arising from the permissive use of the insured vehicle. We therefore affirm the trial court’s grant of summary judgment in favor of Farm Bureau and denial of summary judgment in favor of Safe Auto. Affirmed.

In Robert Gibson v. State of Indiana, a 12-page opinion, Judge Barnes concludes:
Gibson received the maximum possible sentence that was permitted by state law. See Dawson, 612 N.E.2d at 585. We conclude that the maximum sentence is inappropriate here. We assign significant aggravating weight to Gibson’s failure to drive more carefully despite his numerous speeding tickets and participation in two defensive driving classes, but this is partially counterbalanced by the significant mitigating weight of Gibson’s guilty plea. A total sentence of six years is more appropriate in light of the nature of the offenses and Gibson’s character.

Conclusion. We reverse and remand with instructions that Gibson’s sentences for all three convictions be reduced to six years each, to be served concurrently.

In the Matter of the Guardianship of Helen Knepper - affirmed.

In Mitchell E. Roob, Jr., et al. v. Jannis Fisher, et al., an 18-page opinion, Judge Baker writes:

Appellants-defendants E. Mitchell Roob, et al. (collectively, the State), appeal from two orders entered by the trial court in which the court (1) found that Medicaid transportation providers and recipients have a private right of action pursuant to 42 U.S.C. section 1983 (Section 1983) and determined that the State’s Medicaid transportation reimbursement rates were inadequate under applicable federal law; and (2) ordered that the mileage reimbursement rate be increased from $1.25 per mile to $1.85 per mile.

The State raises a number of arguments, one of which we find dispositive—that the trial court erred as a matter of law in determining that Medicaid transportation providers and recipients have a private right of action under Section 1983. Pursuant to a recent United States Supreme Court opinion and the application thereof by a number of federal appellate courts, we find that neither the providers nor the recipients have a private right of action pursuant to Section 1983. Consequently, we reverse the judgment of the trial court and direct it to vacate the orders at issue and enter judgment in favor of the State. * * *

As a final aside, we note that we are compelled by United States Supreme Court precedent to arrive at this result. We do so reluctantly, however, because we also believe that the restrictive analysis required by federal case law and the recent amendments by Congress render the Medicaid Act’s “equal access” provisions merely illusory. Moreover, we believe that the trial court was correct in determining that the practical consequences of writing and reading the Medicaid Act and operating the Medicaid program in such a manner will be extremely deleterious to those most in need. While recognizing that others are charged with the responsibility of making those decisions, we can only lament their apparent indifference to the plight of Medicaid providers and recipients.

NFP civil opinions today (1):

In Robert Longardner, Naomi Longardner and Cheryl L. Lynn v. Citizens Gas & Coke Utility (NFP), a 30-page opinion, Judge Friedlander concludes:

As we concluded above, there are genuine issues of material fact as to whether Citizens and Love Heating were negligent and caused Robert’s injuries. The trial court, therefore, erred when it foreclosed Robert’s ability to recover damages for pain and suffering. The amount of compensation Robert should receive, if any, is a question reserved for the finder of fact. At this stage of the litigation, it is sufficient that Citizens and Love Heating may have negligently caused Robert’s injuries. Judgment affirmed in part, reversed in part, and remanded.
NFP criminal opinions today (5) (link to cases):

Anthony D. Smith v. State of Indiana (NFP)

Shaun A. Hinson v. State of Indiana (NFP)

Suzanne Prentiss v. State of Indiana (NFP)

Keith E. Abercrombie, Sr. v. State of Indiana (NFP)

Posted by Marcia Oddi on Wednesday, November 08, 2006
Posted to Ind. App.Ct. Decisions

Courts - More on: Justice O'Connor confesses second thoughts about Republican Party of Minnesota v. White

Following up on this ILB entry from Saturday, Law.com today has an article by Matthew Hirsch titled "At Least One Case Still Bugs O'Connor." Some quotes:

In an address on Friday at the Grand Hyatt hotel in San Francisco, O'Connor voiced regret over the fallout from the Supreme Court's ruling in Republican Party of Minnesota v. White, 536 U.S. 765, a case decided in 2002. As she often did in her last years on the bench, O'Connor cast the deciding fifth vote in the White case. * * *

In a candid admission to California judges who came to hear O'Connor's speech, part of a three-day-long Summit of Judicial Leaders sponsored by the state Judicial Council, the retired justice said she doesn't second-guess many of her past decisions, "but that White case, I confess, does give me pause." * * *

She also hosted a conference in Washington, D.C., last month where California Chief Justice Ronald George talked about how the U.S. Supreme Court's ruling in White helped contribute to more politicized judicial elections. He said O'Connor was especially interested in hearing about the negative impact of the decision.

"By the end of the conference, she said -- and I'm not just talking outside the school room, she said this publicly -- she said, 'Sometimes we just don't get it right,'" George said.

Posted by Marcia Oddi on Wednesday, November 08, 2006
Posted to Courts in general

Courts - Anti-judiciary measures fail in South Dakota and Colorado

Howard Bashman of How Appealing picks up on reports from South Dakota and Colorado that ballot measures seen as threats to judicial independence have been defeated.

He also quotes this AP story by David Crary that begins:

In a triple setback for conservatives, South Dakotans rejected a law that would have banned virtually all abortions, Arizona became the first state to defeat an amendment to ban gay marriage and Missouri approved a measure backing stem cell research.

Posted by Marcia Oddi on Wednesday, November 08, 2006
Posted to Courts in general

Ind. Law - "Firm's lawyers applaud its commitment to diversity"

"Firm's lawyers applaud its commitment to diversity" is the headline to a story today in the business section of the Indianapolis Star. Written by Chuck Bowen, the story focuses on the Indianapolis law firm of Ice Miller. Some quotes:

MultiCultural Law magazine ranked Ice Miller 15th among the top 25 law firms nationwide for the hiring of disabled Americans in 2006.

The magazine also ranked Ice Miller 30th of 100 for diversity; seventh of 50 for the hiring of women; and 34th of 100 for partner diversity.

Myra Selby, who is black, has been a partner at Ice Miller since 1988 and is co-chair of its diversity committee. The first woman to serve as a justice on the Indiana Supreme Court, she was appointed by the court in 1999 to chair its Commission on Race and Gender Fairness, which monitors the legal profession to ensure diversity.

Selby said Ice Miller's efforts to promote diversity "played a huge part" in her joining the firm.

"The reality was, lawyers of color had not joined the ranks of major law firms" at that point, she said. "Ice Miller was really quite progressive along the lines of other major law firms."

Melissa Proffitt Reese, the firm's co-managing partner (akin to a chief executive), said the firm's nearly 100 years in the legal profession have been marked by a commitment to diverse opinions and backgrounds.

"It has been part of our fabric," she said. "That's not a program you can put in place. That's a culture. It's a challenge."

Proof is in the hiring. Of the firm's 245 lawyers, 102 are women and 14 are minorities.

Of particular interest to me was a side-bar to the story, labeled "A Long History of Diversity," that began:
• 1910: Law firm of Henley, Matson & Gates, which would become Ice Miller, forms.

• 1917: Clara Seyfort Swango joins the firm to manage its books and works there until 1947.

• 1972: Margaret Attridge Young becomes the first female attorney at the firm, known then as Ice Miller Donadio & Ryan.

• 1979: Young becomes the first female partner.

In 1971, the then-Ms. Attridge and I co-authored: "The Indiana Code of 1971: Its Preparation, Passage, and Implications," 5 Indiana Law Review 1-129 (1971). It is available here (3rd from the bottom - is is a very large file). At the time Ms. Attridge was an editor of the law review and had served as second-in-command on the massive project that I had headed to recodify nearly 120-years' worth of Indiana statute law.

Posted by Marcia Oddi on Wednesday, November 08, 2006
Posted to Indiana Law

Not law but interesting - The election in the State of Ohio

The Cincinnati Enquirer has a story this morning by Howard Wilkinson, headlined "Political tremors rock Ohio," that begins:

A political earthquake struck the Ohio Statehouse Tuesday night, with the election of Ted Strickland as the first Democratic governor in 16 years.

And concentric circles of aftershocks will radiate from the old Greek Revival building at the corner of Broad and High and reach, over the months to come, into every city, every county and every institution in the state.

Gone will be a Republican establishment that has had a hammer-lock on the state since 1990; and, with the election of Democrat Sherrod Brown over two-term incumbent Sen. Mike DeWine and Democrats taking over the U.S. House, Ohio Democrats will see their influence grow in Washington, too.

"There will be a sea change in Ohio, at every level,'' said Nathaniel R. Jones, a retired federal appeals court judge and a Democrat. "The significance of this is almost indescribable."

It could change the whole face of politics for the next decade and a half, if the Democrats can hang on to power past 2010, when they can conceivably redraw all congressional and state legislative districts in their favor.

It will mean, too, that Republican county party organizations who used to reward faithful servants with judgeships and jobs further down the food chain will see that power shift to the Democrats.

Posted by Marcia Oddi on Wednesday, November 08, 2006
Posted to General Law Related

Ind. Courts - More on: Judge Van Bokkelen? Lugar recommends prosecutor to succeed Judge Lozano

Updating yesterday's ILB entry quoting from a Munster (NW Indiana) Times story, today's Gary Post-Tribune reports:

U.S. Attorney Joseph Van Bokkelen's work as a federal prosecutor has earned him the chance to replace retiring federal Judge Rudy Lozano.

U.S. Sen. Richard Lugar, R-Ind., has recommended to the White House that Van Bokkelen replace Lozano when he steps down in July 2007, Lugar spokesman Andy Fisher said.

"(Lugar)'s very much impressed with the record that Mr. Van Bokkelen has had as prosecutor," Fisher said.

Messages left at Van Bokkelen's and Lozano's offices for comment were not returned Tuesday.

Fisher said Lugar has not made any other recommendations to the White House regarding a replacement for Lozano.

Posted by Marcia Oddi on Wednesday, November 08, 2006
Posted to Indiana Courts

Ind. Courts - Some winners and losers at the local level

Coverage of local results will be spotty. However, at some point the ILB will provide a link to the Secretary of State's election results.

"Ligonier GOP lawyer to fill court opening" reports the Fort Wayne Journal Gazette: "Unofficial election results show Republican Ligonier attorney Robert Kirsch, 53, defeating Democratic public defender Jon Owen, 55, of Kendallville, by 984 votes Tuesday in the race for Noble Superior I Court."

"Lloyd leading O'Daniel for Vanderburgh Superior Court Judge" reports the Evansville Courier& Press: "So far, voters are on their way to re-electing an incumbent with deep roots in the community as Vanderburgh Superior Court Judge. With 128 of 131 precincts reporting, it looks as if Superior Court Judge Mary Margaret Lloyd could retain her seat, despite efforts to unseat her by local defense attorney Conor O’Daniel in the nonpartisan race. Lloyd leads O'Daniel with 27,454 votes compared to his 13,554."


Posted by Marcia Oddi on Wednesday, November 08, 2006
Posted to Indiana Courts

Ind. Courts - Tech gear upgrades ease life for Allen County courts

Dionne Waugh of the Fort Wayne Journal Gazette writes today:

When Allen County Deputy Prosecutor Steve Godfrey first began practicing law, he remembers having witnesses draw on chalkboards during trials.

If he wanted to show a jury crime scene photos, they’d have to blow the photo up to 8-by-10 size and manually paste it on poster board. The crime scene technician would then have to leave the witness stand while prosecutors moved all the microphones and positioned him in a way he could point to items and not be in the way of jury, judge and defense attorney.

“Most of the jury probably couldn’t see what we were looking at most of the time because we were looking at such small pieces of evidence, like shell casings,” Godfrey recalled.

“We’ve come a long way since that happened.”

As technological upgrades are almost complete in the third of four busy Allen County courtrooms, attorneys, judges and court reporters say the changes are a vast improvement, although the transition has not always been smooth.

“I think it makes for much more professional presentation to a jury. It’s much more jury friendly,” Godfrey said. “In the age everyone grows up in, they want to see the electronic equipment and, for lack of a better word, they want you to put on a pretty good show. They don’t want a hand-drawn diagram and photos that are blurry.”

The Allen County commissioners approved the $250,000 project in October 2005 to enhance courtroom acoustics, presentation visibility and convenience. Last week, the Indiana Supreme Court announced that Allen County had received $2,670 for equipment and technology upgrades to assist the New Haven court with electronically transmitting data to the Indiana Bureau of Motor Vehicles.

That upgrade will help the court meet new federal rules that require certain serious offenses by commercial driver’s license holders to be reported to the BMV within 10 days, according to a statement. Without the new system, it took an average 53 days for the information to reach the BMV and less than 4 percent arrived within 10 days.

In Allen Superior and Circuit courts, the upgrades include computer screens at defense and prosecution tables as well the judge’s bench and a 42-inch plasma screen installed in a podium in front of the jury box. There’s also a dual DVD/VCR and digital overhead within the compartment.

New digital recording devices, microphones and speakers have made it easier for everyone to hear what is said.

“The sound is better. I can hear, and the jurors are not straining to hear,” Allen Superior Judge John F. Surbeck said.

Judges have a master control panel that they can use to mute certain microphones or display certain images on one or all of the screens and even a separate TV for the courtroom gallery. Additionally, witnesses are able to draw on the witness box screen using their fingers, similar to sports broadcasters, to point out evidence. They can do so in different colors, and the marked images can be saved for jurors to look at later.

Posted by Marcia Oddi on Wednesday, November 08, 2006
Posted to Indiana Courts

Ind. Courts - All six appellate judges retained

The AP reports today:

Indiana voters by wide margins chose to keep a state Supreme Court justice and five Court of Appeals judges on the bench.

While most judges at the city and county level are elected directly in Indiana, the five Supreme Court justices and 15 judges on the Court of Appeals are appointed to two-year terms by the governor after being nominated by a judicial commission.

Following their initial term, they are then subject to removal or retention to 10-year terms in the general election.

Justice Frank Sullivan Jr., who was appointed to the high court in 1993 by then-Gov. Evan Bayh, and James S. Kirsch, chief judge of the Court of Appeals, both were retained in a statewide vote.

The four other appeals court judges retained in regional voting [sic.] were: Terry A. Crone of South Bend, appointed in 2004; Ezra H. Friedlander of Carmel, appointed in 1993; Edward W. Najam Jr. of Bloomington, appointed in 1992; and Patricia A. Riley of Rensselaer, appointed in 1994.

WISH-TV has a similar story, but messes up totally the description of who is in what Court of Appeals district:
By wide margins, voters chose to keep an Indiana Supreme Court justice and five Court of Appeals judges on the bench.

The state's five Supreme Court justices and 15 judges on the Court of Appeals are appointed to two-year terms by the governor after being nominated by a judicial commission. Following their initial term, they are then subject to removal or retention to ten-year terms in the general election.

Justice Frank Sullivan and Court of Appeals Chief Judge James Kirsch were both retained in a statewide vote.

The remaining Court of Appeals judges represent specific geographic districts and don't appear on statewide ballots. They are Terry Crone of South Bend, Ezra Friedlander of Carmel, Edward Najam of Bloomington and Patricia Riley of Rensselaer.

Judge Riley was the only judge up for retention to a state-wide district this year.

Posted by Marcia Oddi on Wednesday, November 08, 2006
Posted to Indiana Courts

Tuesday, November 07, 2006

Law - More on "Law blogs raising prickly ethical issues"

"Online journals that contain legal discussions and background information are challenging traditional practices on attorney advertising" is the extended headline of this story by Ameet Sachdev in today's Chicago Tribune. If the topic sounds familiar, exactly one month ago the ILB had this entry. Some quotes from today's story:

Most large corporate firms eschew advertising. In its place, they employ marketing departments to generate news about the firms with the hopes of generating publicity. It's not advertising but it can achieve a similar purpose: promoting the firm's name and activities.

Law bloggers see their forums as a public service, not huckster advertising.

"If I blog and I talk about the law, why should that be treated any differently from a lawyer who goes to a senior center and gives a free talk about elder care?" said Marty Schwimmer, a lawyer in Westchester, N.Y., who writes a blog about trademark and copyright law. * * *

Despite the proliferation of lawyer-written blogs, Kentucky is one of the few states to mull the ethical issues. In Illinois, the Attorney Registration & Disciplinary Commission, which enforces professional-conduct rules, including lawyer advertising regulations that are set by the state Supreme Court, said it has not received any complaints about blogs. And the topic has not generated much discussion at the state bar association, said Bob Creamer, a retired attorney in Evanston who sits on the group's committee on professional conduct.

Elsewhere, there's been some action. Some state regulators in different states say that current rules preventing misleading solicitations and protecting attorney-client privilege also apply to the blogs. The medium, in essence, should not matter.

But some states are updating their antiquated guidelines regulating lawyer advertising to take into account the rise of electronic communications. New York, for example, wants to ban Internet pop-up ads.

The state's office of court administration also has proposed some requirements that may pose a burden to lawyer bloggers. One amendment would require attorneys to provide copies of all ads. The definition of advertisements would include Web sites, e-mails, blogs and speeches.

Another proposed amendment would require law firms and attorneys to disclose in every e-mail or blog a listing of all office locations and jurisdictions in which the attorney and firm members are licensed.

The amendments have been criticized as too broad. Even the Federal Trade Commission has objected to some of the rules. The filing requirement, the FTC said, "will likely raise the cost of doing business for attorneys and thus likely raise prices for consumers."

There were so many public comments to the proposals that the state extended the deadline by two months, to Nov. 15.

"There has been an outcry against the excess," said Schwimmer. "I am optimistic they will do something more reasonable."

Posted by Marcia Oddi on Tuesday, November 07, 2006
Posted to General Law Related

Law - Stem cell legal specialty emerging

The Boston Globe reports today on an emerging new practice area - stem cell law. Sacha Pfeiffer writes:

Law firms market different types of legal work with the ebb and flow of the economy. In recessions, bankruptcy practices boom; at the peak of the dot-com era, high-tech practices were hot.

Now, in keeping with the boom in cutting-edge life science research, several firms are promoting a new legal specialty: stem cells. * * *

Many firms have been doing stem cell legal work for years, most often involving patents . But the specialty has spiked in prominence since California passed a bond measure two years ago that devotes $3 billion to stem cell research, fueling demand for related legal services. That has prompted firms nationwide to position themselves as go-to legal advisors for universities, research facilities, biotechnology companies, and other clients in the stem cell arena.

"There's going to be tons of legal work, and everywhere -- at the state level, at the federal level, at the policy level," said Boston lawyer John M. Garvey, a member of the "stem cell technologies" team at Foley & Lardner, which represents domestic and overseas clients involved in stem cell research. "It was a matter of law firms' understanding that scientific information about stem cells had progressed to the point that many nonscientific issues had developed, so then the question was: How do you translate that into good, profitable, high-level legal work?" * * *

Stem cell legal practices are in large part marketing tools. Traditionally, general practice law firms offered the same basic menu of legal services: corporate, trusts and estates, tax, real estate, litigation. As competition among firms heightened and clients' legal needs became more complex, firms created subspecialties -- mezzanine financing, nanotechnology, corporate governance -- to distinguish themselves. Stem cell work is an outgrowth of that.

Skeptics consider stem cell practices public relations gimmicks, noting that many law firms have extensive experience in stem cell issues even though they don't have formal stem cell practice groups.

Wolf, Greenfield & Sacks, for example, does stem cell patent work for Massachusetts General Hospital and Cytomatrix, a Chelmsford biotech company. Mintz, Levin, Cohn, Ferris, Glovsky, and Popeo represents StemCells Inc., a Palo Alto, Calif., company. Fish & Richardson does stem cell patent work for the Massachusetts Eye and Ear Infirmary. Yet none of those law firms has a so-called stem cell group.

"Some firms are saying they have stem cell practices, but you have to look behind the curtain and say, 'Can you show me some examples of your stem cell patent applications?' because there just aren't that many law firms with real expertise in this area," said Mintz partner Ivor R. Elrifi, who has been doing stem cell legal work for more than a decade.

"We don't have a little group called the 'stem cell working group' or 'We are Stem Cells' or 'Stems Cells R Us,' " Elrifi added, "but we know a lot."

Posted by Marcia Oddi on Tuesday, November 07, 2006
Posted to Biotech | General Law Related

Ind. Courts - "Harrison GOP leader seeks investigation into courthouse visits"

Grace Schneider reports in the Louisville Courier Journal today:

The chairman of Harrison County's Republican Central Committee has asked the state police to investigate after-hours visits to the county courthouse last week by deputy county prosecutor Shawn Donahue.

According to a courthouse surveillance video, Donahue unlocked the courthouse twice after 7 p.m. on Nov. 1.

The 28-year-old lawyer was shown walking alone, carrying papers in and out of a first-floor entry door and also through the second-floor treasurer's office to a side room where there's a copier and other equipment.

He stayed for 13 minutes and left, then re-entered within half an hour and left after about two minutes, the tape showed.

In an interview yesterday, Donahue said he had done nothing wrong.

However, at a meeting yesterday county commissioners described his visits as a "security breach" because he had not been issued a key.

Republican chairman Larry Shickles asked state police in a Saturday letter to investigate to "verify the integrity" of ballots and voting equipment related to today's election.

He also has questioned whether Donahue, who is a Democratic precinct committeeman, might have used public equipment for political purposes, a misdemeanor under the law.

In the interview, Donahue said he dropped by the courthouse to use a letter-folding machine on some letters "that we needed folded."

When asked who "we" is, Donahue said the papers were his personal letters.

"I was under the understanding that anybody could use the letter folder, so I used it," he said.

He declined to say who gave him a key to the courthouse.

Posted by Marcia Oddi on Tuesday, November 07, 2006
Posted to Indiana Courts

Ind. Courts - Judge Van Bokkelen? Lugar recommends prosecutor to succeed Judge Lozano

Joe Carlson of the Munster (NW Indiana) Times reports today:

The White House is considering appointing U.S. Attorney Joseph Van Bokkelen to a federal judgeship in Hammond next year, the office of an Indiana senator confirmed Monday.

U.S. Sen. Dick Lugar has asked President Bush to appoint the region's top federal prosecutor to replace Judge Rudy Lozano, who plans to move into semiretirement in July.

"Senator Lugar has been extremely impressed with the record of Mr. Van Bokkelen," Lugar spokesman Andy Fisher said. "He is certainly a person who is being considered for the job."

A federal source, who declined to be named, said Van Bokkelen is apparently the only person being considered to replace Lozano and that the appointment is considered likely, assuming the prosecutor passes an FBI background check.

Lozano announced in July that he plans to step down on his 65th birthday in July, the source said. Federal judges are asked to give one year's notice before planned retirement.

Lozano was appointed U.S. District Court judge in 1988. Rather than fully retire, Lozano is expected to become a senior judge and could take on anywhere from a full workload to one-quarter of the typical number of cases. Senior judges also can be called upon to hear cases anywhere in the nation. * * *

Since his appointment five years ago, Van Bokkelen's office has sent to prison more than 30 public officials, including former U.S. Congresswoman Katie Hall, former State Democratic Party Chairman Peter Manous and former Lake County auditor and assessor Peter Benjamin.

Van Bokkelen's office also took on the East Chicago political machine, sending six city officials and six contractors to prison for engineering the sidewalks-for-votes scheme that drained more than $24 million from the city to buy re-election for eight-term Mayor Robert Pastrick.

Before becoming U.S. attorney, Van Bokkelen was a private attorney in Highland, an assistant federal prosecutor and a special assistant to the Lake County prosecutor's office.

Posted by Marcia Oddi on Tuesday, November 07, 2006
Posted to Indiana Courts

Ind. Courts - More on: Supreme Court Chooses New Computer System Vendor

Diana Penner of the Indianapolis Star reports today on the Supreme Court's selection yesterday of a Texas firm to develop, supply and install a system to manage cases filed in the state's courts. Some quotes:

The process of linking the state's 400 civil and criminal courts, dealing with cases that include speeding tickets, criminal trials, small claims filings and drug convictions, could take seven to nine years, [Mary DePrez, who oversees the project] said. A pilot version of the system, called "Odyssey Case Manager," is expected to be deployed in an as yet unidentified county by the end of next year, she said.

Tyler offers software that already can handle about 70 percent of the needs that have been identified for Indiana, but the rest must still be worked out.

Government Technology reports:
The Court's selection of Tyler completed months of review of 14 proposals submitted by vendors from throughout the country in response to a public solicitation earlier this year. The selection process included week-long product demonstrations in Indianapolis by finalist vendors, including demonstrations open to the public. More than 175 individuals attended these public sessions. Indiana judges, clerks, and other experts also traveled to courts in Indiana and other states where finalist vendors' systems were in use.

Posted by Marcia Oddi on Tuesday, November 07, 2006
Posted to Indiana Courts

Monday, November 06, 2006

Ind. Courts - Buying one's way out of jail?

A reader has pointed me to this introduction to a story published Saturday in the Greenfield Daily Reporter. Unfortunately, the Greenfield paper is available online only to paid subscribers, so this quote from 11/4/06 is all we will see unless someone can help out with more information. The story, headlined "Dropped Charges Came with a Twist," starts out with:

In today's world, $35,000 is enough to buy a host of items on a person's wish list. In Hancock County, it almost bought freedom for a man charged with drunken driving.

As a condition of avoiding prosecution on a felony charge of operating a vehicle while intoxicated, the suspect, Hal Harlan, was going to make a "donation" of $35,000 to be used for police equipment. The arrangement was made with Prosecutor Larry Gossett. It wouldn't go through normal channels and be approved by a judge, as normally happens with fines. In fact, the amount discussed was much higher than the normal fine for such a charge. At least one legal expert and the Indiana State Board of Accounts said the idea is highly unusual. Hancock County Sheriff Nick Gulling questions whether the arrangement is even legal.

As noted, that is all that is available to non-paying readers.

Read the Greenfield story in conjunction with this Nov. 2 ILB entry on a question in East Chicago re the legality of community service in lieu of paying fees.

Posted by Marcia Oddi on Monday, November 06, 2006
Posted to Indiana Courts

Ind. Courts - Supreme Court Chooses New Computer System Vendor

The Indiana Supreme Court has issued this release:

Supreme Court Chooses New Computer System Vendor

The Indiana Supreme Court has selected Tyler Technologies, Inc., to supply and install a new computer system that will manage cases for Indiana trial courts, Chief Justice Randall T. Shepard announced today. The selection followed a lengthy competitive procurement, Shepard said, and is contingent on negotiating a satisfactory contract with Tyler.

“With more than 1.5 million cases filed in Indiana courts each year, Hoosier law enforcement officers, lawyers, government agencies, and citizens need timely and accurate court information. Indiana courts and court clerks must have a 21st century computer system to help them manage their caseloads and provide court information to those who need it. While many individual courts have computerized case management systems today, we believe Tyler offers us the best opportunity to equip Indiana courts with a 21st century case management system and to connect those systems with each other and with those who need and use court information,” said Justice Frank Sullivan, Jr., chair of the Supreme Court's Judicial Technology and Automation Committee (JTAC).

Tyler is a publicly traded corporation based in Dallas, Texas, and a leading provider of information management systems and professional services to state and local governments. Tyler is currently supplying and installing its trial court case management system product called “Odyssey Case Manager” statewide in Minnesota and New Hampshire and in individual courts in Florida, Nevada, Texas, and other states.

The Court's selection of Tyler completed months of review of 14 proposals submitted by vendors from throughout the country in response to a public solicitation earlier this year. The selection process included week-long product demonstrations in Indianapolis by finalist vendors, including demonstrations open to the public. More than 175 individuals attended these public sessions. Indiana judges, clerks, and other experts also traveled to courts in Indiana and other states where finalist vendors' systems were in use.

The Court's choice of Tyler's Odyssey product adopted the recommendation made by both JTAC and a statewide board of judges, clerks, court staff, and technology experts established by JTAC to oversee and govern the computerized case management system project. Chief Justice Shepard and Justice Sullivan expressed their appreciation to the members of JTAC and the statewide board for “their exceptionally hard work on behalf of all court users.”

Judge John A. Rader of the Warren Circuit Court noted that he and his fellow statewide board members Judge Mary G. Willis, Henry Circuit Court, and Judge Frances C. Gull, Allen Superior Court, had spent “countless hours in product demonstrations, systems' review, and speaking to actual court end users. All three of us were strongly of the opinion that the Tyler Odyssey product was the top choice for Indiana Courts.” Judge Rader added that his, Judge Willis', and Judge Gull's extensive involvement “insured that the selection of Tyler reflected the informed views of sitting judges from small, medium, and large Indiana counties.”

Judge Gull said that she appreciated the Supreme Court's adoption of the statewide board's recommendation because she had “personally visited judges, clerks, and court staff using each of the competing vendors' products,” and believed the selection of Tyler was “the right choice for Indiana.” Another member of the statewide board, Al Mizen, the chief financial officer of Center Township in Marion County, added that “among the vendors we examined, Tyler had the best technology for connecting court computer systems with those of state agencies such as the Bureau of Motor Vehicles, Department of Revenue, and law enforcement.”

Two county clerks who participated in the procurement also endorsed the selection of Tyler and its Odyssey product. “The Odyssey case management system provided the best combination of functionality, technology, usability, and a proven track record for implementing statewide trial court case management systems,” said Therese Brown, Allen County Clerk. “While not perfect, having personally seen the system in use in Minnesota and comparing it with other CMS products, I believe that Tyler's system will be the best for Indiana's courts and clerks,” added Jackie Rowan, DeKalb County Clerk.

The Court anticipates that, prior to signing a contract with Tyler to supply and install Odyssey in Indiana, Tyler and JTAC will enter into a limited contract to conduct a detailed assessment of the functions of Odyssey and the functions required by JTAC to assure that the time, effort, and cost of any additional application development work needed to meet the Court's functional requirements are reasonable and acceptable. (In 2002, the Supreme Court contracted with another vendor for a similar computer system. Last year, that contract was canceled on terms that included a refund to the Court of fees that had been paid to the vendor. A factor in the cancellation of the contract was the vendor's unwillingness to perform additional application development work needed to meet the Court's functional requirements.) Tyler's proposal projects costs of approximately $13.4 million over the life of the project for software licensing, maintenance and support and for vendor provided training and deployment. The Court will now begin contract negotiations with Tyler that will also include terms for software modifications and application development the Court deems necessary.

Many earlier ILB entries on the Court's case management system efforts are listed here.

[More] Here is an AP story based on the above.

Posted by Marcia Oddi on Monday, November 06, 2006
Posted to Indiana Courts

Ind. Decisions - Court of Appeals issues 2 today (and 8 NFP)

For publication opinions today (2):

In Estate of George C. Verdak, et al. v. Butler University, a 19-page opinion, Judge Baker writes:

This appeal stems from a disagreement between Butler University (Butler) and the Estate of George Verdak (the Estate) over the ownership of the Ruth Page and Ballet Russe de Monte Carlo dance collections, which consist of ballet sets, costumes, musical scores, and other dance memorabilia (collectively, the Dance Collections). As detailed more fully below, Butler initially sued Norman Crider, Toby Liebovitz, and Liene Dindonis in both her individual capacity and as the personal representative of the estate of William Glenn. Dindonis later filed a separate suit against Butler on behalf of the Estate. Over the Estate’s objections, the trial court consolidated these two cases. This appeal stems from orders entered in both cases: (1) the trial court’s grant of summary judgment in favor of Butler in the Estate’s lawsuit, and (2) the trial court’s partial grant of a motion to dismiss certain claims in Butler’s lawsuit.

The Estate, by its personal representative Dindonis, appeals from the trial court’s grant of summary judgment in favor of Butler on the Estate’s claims of replevin and conversion. Specifically, the Estate argues that there are two material facts that Butler did not prove: (1) the date on which Verdak got notice that Butler was claiming title to the Dance Collections, and (2) the date on which Verdak should have discovered, using ordinary diligence, that Butler was claiming ownership of those items. Among other things, the parties ask that we determine when the statute of limitations began to run on the Estate’s claims.

Dindonis, Crider, and Liebovitz (collectively, the Defendants) appeal from the trial court’s order denying their motion to dismiss Butler’s replevin claim. Specifically, they argue that this action was barred by the nonclaim statute1 of the Indiana Probate Code and should have been dismissed by the trial court.

Butler appeals from the trial court’s order granting the motion to dismiss Butler’s claims for conversion and statutory damages under the Indiana Crime Victims’ Relief Act.2 Specifically, Butler argues that it sufficiently alleged facts in its complaint to support both claims.

Concluding that summary judgment was properly granted in favor of Butler on the Estate’s claims and that the Defendant’s motion to dismiss was properly partially granted, we affirm the judgment of the trial court.

In Zacharia Truax v. State of Indiana, an 18-page iopinion affirming the lower court, Judge Baker writes:
Truax first argues that the trial court erred in denying his motion for discharge pursuant to Indiana Criminal Rule 4(B). In particular, Truax argues that he was denied his right to a speedy trial; therefore, his subsequent trial and conviction were in contravention of the law and the proper remedy is a discharge.

In resolving this issue, we note that the right to a speedy trial is guaranteed by the Sixth Amendment to the United States Constitution and by Article I, Section 12 of the Indiana Constitution. Clark v. State, 659 N.E.2d 548, 551 (Ind. 1995). The provisions of Criminal Rule 4 implement a defendant’s right to a speedy trial by establishing time deadlines by which trials must be held. Collins v. State, 730 N.E.2d 181, 182 (Ind. Ct. App. 2000).

NFP civil opinions today (2):

Matter of the Involuntary Termination of Parent-Child Relationship of E.R. v. Marion County Department of Child Services & Child Advocates (NFP)

MacArthur Drake & Associates v. Tower Crossing Associates, et al. (NFP)

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

Birt Ford, Jr. v. State of Indiana (NFP)

Andre Davis v. State of Indiana (NFP)

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

Jeffrey I. Holliday v. State of Indiana (NFP)

Joseph Penny v. State of Indiana (NFP)

Nathaniel Dawn v. State of Indiana (NFP)

Posted by Marcia Oddi on Monday, November 06, 2006
Posted to Ind. App.Ct. Decisions

Ind. Courts - Remember Judicial Retention Election Tomorrow

The ISBA has just issued this notice:

Remember Judicial Retention Election Tomorrow

From: Richard S. Eynon, ISBA President

When you vote tomorrow, please be sure to remember to vote in the judicial retention election. Indiana has used the retention vote system since 1970, and we are lucky to have it in an age when appellate court judges in other states are running multi-million dollar campaigns that undermine the integrity of their courts.

On the ballot will be one justice on the Indiana Supreme Court (Justice Sullivan) and, depending on your county of residence, either two or three judges on the Indiana Court of Appeals.* You will be asked to vote on whether each should be retained in office. In a recent poll of the state's lawyers conducted by the Improvements in the Judiciary Committee of the Indiana State Bar Association, these judges received overwhelming support, indicating that they have served us well.

Information about the retention vote and these judges is available at http://www.indianadecisions.com/2006retentionballot/.


*Voting counties per judge:

Justice Sullivan and Judge Riley will be subject to a yes/no retention vote in all Indiana counties.

Chief Judge Kirsch and Judge Friedlander will be subject to a yes/no retention vote in the following counties: Adams, Blackford, Carroll, Cass, Clinton, Delaware, Grant, Hamilton, Howard, Huntington, Jay, Madison, Marion, Miami, Tippecanoe, Tipton, Wabash, Wells and White.

Judge Crone will be subject to a yes/no retention vote in the following counties: Allen, Benton, DeKalb, Elkhart, Fulton, Jasper, Kosciusko, LaGrange, Lake, LaPorte, Marshall, Newton, Noble, Porter, Pulaski, St. Joseph, Starke, Steuben, Warren and Whitley.

Judge Najam will be subject to a yes/no retention vote in the following counties: Bartholomew, Boone, Brown, Clark, Clay, Crawford, Daviess, Dearborn, Decatur, Dubois, Fayette, Floyd, Fountain, Franklin, Gibson, Greene, Hancock, Harrison, Hendricks, Henry, Jackson, Jefferson, Jennings, Johnson, Knox, Lawrence, Martin, Monroe, Montgomery, Morgan, Ohio, Orange, Owen, Parke, Perry, Pike, Posey, Putnam, Randolph, Ripley, Rush, Scott, Shelby, Spencer, Sullivan, Switzerland, Union, Vanderburgh, Vermillion, Vigo, Warrick, Washington and Wayne.

Posted by Marcia Oddi on Monday, November 06, 2006
Posted to Indiana Courts

Ind. Courts - More on: "You'll elect them Tuesday, but no matter whom you pick, all 20 candidates will win"

Referencing its story from Friday that was headed "Marion Superior Court is set for '07: You'll elect them Tuesday, but no matter whom you pick, all 20 candidates will win," the Indianapolis Star editorializes today in favor of a merit-based selection process:

Buried near the end of the ballot Tuesday will be 10 Republican and 10 Democratic Party candidates for Marion County Superior Court judge. Regardless of voters' decisions, all 20 will wind up on the court. The rigged contest was decided months ago.

In past elections, voters have been able to reject one judge on the ballot. In the old system, there was one more candidate on the ballot than open seats on the bench. Now, even that nod to the electorate is gone.

To win "election,'' aspiring judicial candidates woo precinct committee officials at Republican and Democratic picnics, dinners and meetings. They mostly hit up lawyers to fund their campaigns.

The most critical election for these candidates isn't in November. It's the county slating conventions. This year, no one challenged the Republican slate in the primary and three challengers to the Democratic slate were handily defeated.
About the only meaningful input outside the political process is a pre-primary Indianapolis Bar Association lawyer survey of candidates.

Two candidates don't even have to go through this minimal vetting process. Republican and Democratic county chairmen each pick a candidate to appear on the general election ballot. That ridiculous practice should be abolished. If judges are to be elected, all should face the voters, not selected by political bosses.

If judges continue to be elected, the state should return to a system in which there are more candidates on the ballot than vacancies on the court.

However, state and local bar associations, as well as Indiana Supreme Court Justice Randall Shepard, have advocated for creation of nonpartisan merit selection for judges. It removes politics from the process, gives judges greater independence and eliminates fundraising.

Merit selection has failed to clear the General Assembly in the past, in part because political parties would have retained too much control.

Lawmakers should come up with a fairer selection process -- one truly based on merit.

Posted by Marcia Oddi on Monday, November 06, 2006
Posted to Indiana Courts

Ind. Courts - More on: St. Joseph County Prosecutor Michael Dvorak sued opponent Greg Kauffman on Friday

Updating this story from Friday, the AP is reporting this morning, in a story headlined "Judge tosses candidates ad lawsuit":

SOUTH BEND, Ind. -- A judge rejected the St. Joseph County prosecutor's request that he stop a political ad the prosecutor claimed was false and defamatory.

The commercial for Republican candidate Greg Kauffman is protected speech and can remain on the air, St. Joseph Superior Court Judge David C. Chapleau ruled Saturday.

Democrat Michael Dvorak filed a lawsuit Friday asking for an injunction to halt the 30-second television spot, saying it falsely accuses him of violating the law by hiring his wife to work in his office. Dvorak has said the move is not illegal because he does not personally supervise her.

The validity of the allegation, however, was not Chapleau's main concern.
"My concern is that political speech, even inaccurate, must be allowed unless it's so clear that it's a question of confusing the public," Chapleau said. He cited a Michigan case in which a judge pulled an ad that misidentified one of the candidates.

Posted by Marcia Oddi on Monday, November 06, 2006
Posted to Ind. Trial Ct. Decisions

Ind. Gov't. - Public access counselor Davis featured in LCJ

"Counselor keeps government accessible: She makes records, meetings public" is the headline to this story by Lesley Stedman Weidenbener in today's Louisville Courier Journal. Some quotes:

"It is very evident to me that but for my intercession or guidance, records may well not be given out or meetings may well be held in executive session that wouldn't be proper," [Indiana public-access counselor Karen] Davis said. "You can see that on a daily basis."

But Davis' opinions are only advisory. State law doesn't require any government entity to obey. Still, most of the time, they seem to take her advice.

Marian Pearcy, the immediate past president of the Indiana Coalition for Open Government, thinks it's time the state gives Davis more clout.

"It's not her fault that the agencies don't have to (comply). She doesn't have the law behind her," Pearcy said. "It was a great breakthrough when we started the public-access counselor (position), but now it's time we take another look at it." * * *

Davis said she tries to dispassionately weigh the requests or complaints she receives.

"I have no fealty toward the media, the public or a government agency," Davis said. "And politics doesn't enter to it. I just look to the law."

And although her position is a gubernatorial appointment, Davis hasn't been afraid to take on the administration. She has issued opinions finding fault with the governor's office and with his agencies. She has also found in their favor in some cases.

Regardless, Davis said, she doesn't have to worry about her job. That's because the public-access counselor serves a four-year term that is staggered with that of governors.

Her term will expire June 30, 2007.

"That's the benefit of the statute," Davis said. "I don't have to worry whether a decision is going to be unpopular."

Posted by Marcia Oddi on Monday, November 06, 2006
Posted to Indiana Government

Sunday, November 05, 2006

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

Adding to numerous earlier entries on outdoor wood-fired boilers or furnaces, inlcuding this partial ILB list, are two recent stories in the Munster (NW Indiana) Times. Laura Harvey Keagle wrote on Nov. 1:

PORTAGE | While there are not many outdoor wood-burning furnaces in the region, a group is scheduled to meet today to address how to regulate them.

"The expectation was that IDEM or the EPA would step in, but that didn't happen," said Porter County Surveyor Kevin Breitzke, who serves as chairman of the Northwestern Indiana Regional Planning Council board. "Industry needs an impetus for change and that just may be government regulation."

A second story by Keagle, the next day, reported:
PORTAGE | Indiana is not going to regulate outdoor wood-burning furnaces until the U.S. EPA reveals recommendations in December, a state environmental official said Wednesday.

The Indiana Environmental Quality Service Council met Monday and discussed the federal plan, which is expected to be unveiled Dec. 15, said Sean Gorman, environmental manager for the rules development section of the Indiana Department of Environmental Management.

Gorman said the EPA plan includes two phases: a model state ordinance recommending emissions standards and suggestions to manufacturers to create cleaner-operating products. * * *

IDEM requested public comments on a proposal for rules governing outdoor furnaces last year, but the state has yet to take any action.

Gorman's comments came during the first meeting of the Northwestern Indiana Regional Planning Commission's subcommittee on outdoor wood-burning furnaces. The group is charged with drafting a sample ordinance aimed at regulating the devices for Lake, Porter and LaPorte counties and their municipalities.

Charlotte Read, of the Save the Dunes Council, is a member of NIRPC's subcommittee and said she was disappointed with the state's decision to wait for EPA action on the issue.

"They're passing the buck," Read said.

Posted by Marcia Oddi on Sunday, November 05, 2006
Posted to Environment | Indiana Government | Indiana Law

Ind. Law - Death penalty sends a state's legal costs soaring

The ILB happened across this pragmatic editorial in the Madison Wisconsin Capital Times that uses Indiana as an example. It begins:

Longtime reader Chris Wren of Madison this week sent me a copy of a job posting made by the Indiana attorney general's office to fill a deputy attorney general position in its habeas corpus and capital litigation section.

Wren notes that the job posting ought to interest Wisconsin citizens, who on Nov. 7 will vote to "advise" the Legislature whether Wisconsin ought to legalize the death penalty.

This particular Indiana job is the one that handles the appeals from people sentenced to death there.

Here is an excerpt from a paragraph that describes the job's principal duties:

"When a court imposes the death penalty, the attorney general represents the state in all future appeals. These cases are very lengthy and often last in excess of 15 years. The successful candidate will be responsible for representing the state's interests in all aspects of appeals before the Indiana Supreme Court, post-conviction relief proceedings in state trial courts, and federal habeas corpus proceedings in the federal district and appellate courts.

"Additionally, attorneys provide consultation and assistance to the prosecuting attorneys in trial proceedings. As these cases involve a mixture of trial and appellate practice, prior trial experience is an asset."

In other words, once a state enacts capital punishment, it needs to prepare itself for lots of appeals and huge court costs that typically stretch over nearly two decades for each case.

Posted by Marcia Oddi on Sunday, November 05, 2006
Posted to Indiana Law

Ind. Decisions - Still more on Dental Board action against Angola dentist

Updating these four ILB entries from nearly a year ago, the AP reported on Oct. 24th:

ANGOLA, Ind. - A dentist accused of diagnosing cavities that did not exist will not face prison time, according to an agreement filed in Steuben Circuit Court.

Penelope Dunlap, 36, was charged in December with six felony counts of Medicaid fraud and five felony counts of attempted theft.

Attorneys filed an agreement Monday that would change those charges to misdemeanors and allow them to be dismissed after 10 years. The deal requires Dunlap to not treat Medicaid patients during that time and also complete 100 hours of community service, among other conditions.

The agreement is not a formal plea agreement, so a judge does not have to approve the terms. Instead, the agreement is between special prosecutor Greg Kenner and Dunlap. Kenner can refile criminal charges if Dunlap does not comply with the agreement.

Posted by Marcia Oddi on Sunday, November 05, 2006
Posted to Ind. Adm. Bd. Decisions

Ind. Law - "Assessment methodology not lawful, Verizon says"

"Assessment methodology not lawful, Verizon says" is the headline to a story by Benjamin Lanka that ran in the Oct. 26 Fort Wayne Journal Gazette. Some quotes:

The way Indiana determines the tax value of a company’s assets – such as office computers, assembly lines or printing presses – could be unconstitutional and should be more market-based, according to an attorney for Verizon.

On Wednesday, Bradley Hasler, attorney for Bingham McHale, an Indianapolis law firm representing Verizon, challenged the constitutionality of how the state assesses personal property at an Allen County Property Tax Assessment Board hearing. Personal property is tangible assets held by a company.

The board is the local entity that hears complaints about the tax assessment of property. The higher a property is assessed, the more taxes the owner pays.

The argument comes just a few years after a Supreme Court mandate forced the state to shift the way it assessed real property – buildings and land. The original lawsuit prompting the change was filed in Lake County in 1993, but the issue was not finalized until 2001. * * *

Jane Howard, spokeswoman for Verizon, said the company’s complaint stemmed from a “difference in opinion” in the value assigned to old computer equipment at the company. State law allows personal property appeals to be confidential, so no numbers were disclosed regarding the value of the computers from the county versus what Verizon feels they are worth.

Hasler said other states use fair-market value to determine personal property’s tax worth.

Mark GiaQuinta, attorney for the township and county assessor, called the relief being sought by Verizon “extraordinary” and said Verizon was using Allen County as a test case to change the way personal property is assessed across the state. He said real property can be assessed at the market value because there are constant sales of homes and businesses to use as a base for those values.

“That doesn’t exist in the world of personal property unless and until we make the Peddler’s Post our Bible,” he said, referring to the publication listing various items for sale.

Mahlock said it would be next to impossible for her office to determine the value of different business equipment because there are so many types.

Posted by Marcia Oddi on Sunday, November 05, 2006
Posted to Indiana Law

Ind. Decisions - More on the Behrman case verdict

Updating this ILB entry from Oct. 30th, the Indianapolis Star today has a story by Tim Evans headlined "Building a case, clue by clue: Dogged detective found evidence against Behrman's killer." It begins:

Despite nearly five years of police work and more than 600 bits of evidence and information collected on hundreds of people, investigators still had no solid suspect in Jill Behrman's killing.

Until Indiana State Police Detective Rick Lang tracked down a young woman whose story gave him goose bumps.

Carly Goodman described tactics her former boyfriend, John R. Myers II, used to control her, and of a time he drove her to a remote spot in the woods in 2000. It was the same spot where Behrman's remains were found three years later.

"When she told me about those things," Lang said, "it literally made the hairs on the back of my neck stick up."

On Oct. 31st the Chicago Tribune ran a story by AP reporter Deanna Martin headed "Quick verdict might not end Behrman case". Some quotes:
A jury deciding a murder case so quickly is unusual, said Craig Bradley, the James L. Calamaras Professor of Law at Indiana University.

"I never tried a case when the jury came back (that fast)," Bradley said. "To do it in a murder case where the evidence is this thin is almost bizarre."

Five jurors told reporters that all panelists chose to convict Myers during their first round of voting. One female juror, who declined to give her name, said she was not convinced of Myers' guilt until closing arguments.

"I felt like the state really met the burden of proof," she said.

Morgan County Prosecutor Steve Sonnega said newer court rules allow jurors to talk about the case -- without deliberating -- as the trial moves along. Jurors can also now ask questions during the trial.

"When they go to deliberate, they don't start at square one," Sonnega said.

Bradley said the quick verdict could be groundwork for an appeal, in which defense attorneys could argue that a reasonable juror would not find that the state met its burden of proof against Myers.

Posted by Marcia Oddi on Sunday, November 05, 2006
Posted to Ind. Trial Ct. Decisions

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 through the week ending November 3, 2006.

Posted by Marcia Oddi on Sunday, November 05, 2006
Posted to Indiana Transfer Lists

Ind. Law - "Fix flaws in victim assistance fund"

"Fix flaws in victim assistance fund" is the headline to this editorial today in the Fort Wayne Journal Gazette. Note this quote:

Much of the money in the [victim assistance] fund is supposed to come from punitive damages paid in civil lawsuits. But for a variety of reasons, that money rarely finds its way into the fund. And because the existing compensation law designates that 75 percent of punitive damages go to the fund, there’s a powerful disincentive for civil plaintiffs to ask for punitive damages and a powerful incentive for parties to settle lawsuits out of court.

That may be good for an overburdened court system, but it does nothing to help crime victims.

Tie that together with this ILB entry from March 29th ("State will take most of couple's $2 million verdict") and this one from March 30th, and see what results.

Posted by Marcia Oddi on Sunday, November 05, 2006
Posted to Indiana Law

Ind. Courts - Alevizos, Forker vie for LaPorte Circuit Court judge

The Michigan City News-Dispatch reports, in a story by Dave Hawk:

The race for Circuit Court judge features a veteran Michigan City Democrat against a LaPorte Republican seeking his first public office.

Democrat Tom Alevizos, 45, is vying with Republican Jonathan Forker, 54, for a four-year term to succeed retiring Circuit Court Judge Robert Gilmore.

Alevizos won two terms on the Michigan City Common Council and three terms as a state representative early in his career. He was elected Sixth Ward city councilman at 22 and served from 1984 to 1992, when he was elected state representative. He served three terms, until 1998. He has been a deputy LaPorte County prosecutor for 18 years.

Forker, meanwhile, has been an attorney for 26 years. He also has served on the LaPorte County Family Court Advisory Board, as judge of LaPorte Teen Court for more than 15 years; and been a participant in the Pro Bono Committee (legal services for the indigent). Forker said he has handled a broad range of civil cases, including family law, divorce, custody, adoptions, estates, real estate and small business matters.

Both are graduates of the Valparaiso University School of Law. The winner of Tuesday's election takes office Jan. 1 and will not only act as judge, but as the administrator of an office that includes some 60 people, including probation officers and the Juvenile Services Center.

Posted by Marcia Oddi on Sunday, November 05, 2006
Posted to Indiana Courts

Ind. Courts - More on "County officials consider Goshen City Court subsidy"

Updating this ILB entry from Oct. 18th, the Elkgart Truth reports, via a story by Jeffrey Burton that begins:

There are "pretty good" odds Goshen City Court will close at the end of 2007 if it doesn't receive a county subsidy, Mayor Allan Kauffman said Friday.

Kauffman met Friday with the Elkhart County Commissioners to discuss the possibility of the county funding the city's financially troubled court.

This year, property tax revenue will subsidize a shortfall of more than $30,000. Next year, Kauffman said, it's projected to rise to more than $50,000.

"I don't think we should be spending people's property taxes on it," Kauffman said, noting that not just Goshen taxpayers use it.

With that in mind, he's proposing the county pay the shortfall, rather than have the city close the court.

Last year, 5,262 cases were handled in Goshen City Court. Of those, 1,704 were criminal cases, 2,595 were driving infractions, and 963 were city ordinance violations.

Only the ordinance violations would remain city matters if the court closed -- the remainder would go to county courts in Elkhart and Goshen, possibly creating a further backlog in the county system.

Posted by Marcia Oddi on Sunday, November 05, 2006
Posted to Indiana Courts

Saturday, November 04, 2006

Courts - Justice O'Connor confesses second thoughts about Republican Party of Minnesota v. White

This is interesting.

According to a report by Bob Egelko in the San Francisco Chronicle:

Former Supreme Court Justice Sandra Day O'Connor told a San Francisco audience Friday that judges are under political attack nationwide, and a ruling she endorsed four years ago is partly to blame.

"I'm increasingly concerned about the current climate of challenge to judicial independence,'' O'Connor, who retired in January after 24 years on the court, told a gathering of state judges from around the country. "Unhappiness with judges today is at a very intense level." * * *

[S]he said she was troubled by "increased partisan activity in judicial elections," with "large sums of money spent by special interests.''

A related development, she said, has been the proliferation of questionnaires sent by interest groups to state judicial candidates, asking their views on issues such as abortion, same-sex marriage and the death penalty.

Those surveys are largely the result of the Supreme Court's 2002 ruling that judicial candidates had a constitutional right to declare their views on legal or political issues, O'Connor said. She was part of the court's 5-4 majority that overturned a judicial ethics rule in Minnesota that banned such statements.

Some lower courts have since interpreted the ruling broadly to strike down ethical standards that prohibit judicial candidates from making campaign promises of how they would address particular issues. California has such a standard, but it has not been the subject of any court ruling.

"That (Minnesota) case, I confess, does give me pause,'' O'Connor said, adding that she expects the Supreme Court to revisit the issue and define the boundaries of free speech for court candidates.

The decision, of course, was Republican Party of Minnesota v. White, 536 U.S. 762 (2002). For background, start with this ILB entry, headed "Judicial Surveys Vex the Bench."

Posted by Marcia Oddi on Saturday, November 04, 2006
Posted to Courts in general

Ind. Decisions - Court of Appeals FP Opinions for the Week of Oct. 30 through Nov. 3, 2006

Dupree Scott v. State of Indiana (11/03/06) - "Based on Officer Cullum acting as an agent of the property owner and Scott loitering on private property in violation of posted no trespassing or loitering signs, the Fourth Amendment was not implicated when Officer Cullum stopped Scott. Therefore, the trial court did not abuse its discretion in admitting the evidence resulting from the stop and subsequent arrest of Scott. Upon sua sponte review, we find that Scott’s two convictions of possession of cocaine violate the Indiana Constitution’s prohibition of double jeopardy because the convictions are not separate crimes. Affirmed in part; remanded with instructions."

Barton Turner v. Boy Scouts Sagamore (11/03/06) - "We therefore affirm the trial court’s granting of summary judgment in favor of the Boy Scouts on the following issues: (1) that the Boy Scouts are not liable for any statements made to Turner himself about the child pornography allegations, as these statements were not published to a third party for purposes of a defamation analysis; and (2) that the Boy Scouts are not liable for statements made to them by non-members. In addition, we remand to the trial court for enforcement of our discovery order regarding the five letters discussed above and for further proceedings on whether the Boy Scouts abused and thus lost the qualified privilege of common interest. Affirmed in part, reversed in part, and remanded."

Esselona Larson v. Portage Township School Corporation (11/03/06) - "Based on the foregoing, we conclude that pursuant to Indiana Code Section 20-6.1-4-17.3(b), Larson is entitled to a conference with the governing body that is not open to the public. Berta’s presence at and participation in Larson’s non-public conference with the governing body did not violate Indiana Code Section 20-6.1-4-17.3(b). Accordingly, we affirm the trial court’s grant of the School Corporation’s motion for summary judgment and the denial of Larson’s motion for summary judgment."

William Walker v. DaimlerChrysler Corporation (11/02/06) - "William Walker (“Walker”) appeals the trial court’s order dismissing his complaint against DaimlerChrysler Corporation (“DaimlerChrysler”), which alleges violations of the Magnuson-Moss Warranty Act (“MMWA”) and the Indiana Motor Vehicle Protection Act (“Indiana Lemon Law”), and compelling arbitration of those claims. Walker has not satisfied his burden to show us that Congress intended to preclude binding arbitration under the MMWA. We acknowledge that the Federal Trade Commission (“FTC”) has concluded that the MMWA does not permit binding arbitration, but like several other courts that have addressed the issue, we find that interpretation to be unreasonable and therefore will not defer to it. In addition, Walker has not shown that the parties’ agreement to arbitrate is invalid under the Indiana Lemon Law. Therefore, we affirm the judgment of the trial court."

Richard Fulkrod v. State of Indiana (11/02/06) - sentencing, affirmed.

In the Matter of W.C.B. (11/01/06) - "W.C.B. contends that Indiana’s child molesting statute1 (1) is inherently—and unconstitutionally—contradictory, (2) is unconstitutionally vague, and (3) violates Article I, section 23 of the Indiana Constitution. Finding that the statute is constitutional as written and as applied to W.C.B., we affirm the judgment of the juvenile court."

Lisa Robles v. Rudy Robles, Sr. (11/01/06) - support issues, affirmed.

John Grier v. State of Indiana (10/31/06) - "Grier also claims that Officer Moncrief’s grabbing of his neck violated his right to be free from “unnecessary rigor” under Article 1, Section 15 of the Indiana Constitution. This section states: “No person arrested, or confined in jail, shall be treated with unnecessary rigor.” As the State points out, Grier was not under arrest or in prison at the time that Officer Moncrief prevented him from swallowing the baggie, and therefore, Article 1, Section 15 likely does not apply here."

Flying J., Inc. v. City of New Haven, Board of Zoning Appeals (10/31/06) - "Because the trial court did not construe the Zoning Ordinance to favor the free use of land, we conclude that the trial court erred by affirming the BZA’s determination that the parking for trucks and RVs would not be an accessory use under the Zoning Ordinance. See, e.g., Shell, 395 N.E.2d at 1285-1286; see also Bagko, 640 N.E.2d at 71; Kennedy, 560 N.E.2d at 696-697; Keeling v. Bd. of Zoning Appeals of City of Indianapolis, 117 Ind. App. 314, 326, 69 N.E.2d 613, 618 (1946) (holding that the right to erect a church building included a parking lot for the use of the members attending church services and church meetings). Accordingly, we hold that the trial court erred by denying Flying J’s motion for summary judgment and by entering summary judgment in favor of the BZA."

In re the Matter of Tara Christenson v. Jill Struss (10/31/06) - "Tara Christenson appeals the trial court’s order overruling her objection to having the trial judge conduct a hearing on Jill Struss’s motion to correct error from a permanent protective order that was signed and issued by the trial judge as opposed to having the magistrate, who conducted the protective order hearing and made recommendations to the judge, conduct the hearing. We affirm."

Antwain Henley v. State of Indiana (10/31/06) - "Antwain Henley appeals the denial of his petition for post-conviction relief (“PCR”). One of the issues he raises is dispositive.1 Henley asserts his direct appeal counsel provided ineffective assistance by failing to challenge the trial court’s summary denial of Henley’s request that standby counsel deliver closing arguments. In light of the precedent available to counsel at the time of the appeal, this issue was significant, obvious, and stronger than the other issues raised on appeal, and appellate counsel did not have a reasonable strategic explanation for failing to raise the issue. Thus, appellate counsel’s performance was deficient. In addition, there is a reasonable probability the result of Henley’s direct appeal would have been different, i.e., Henley’s conviction would have been reversed and the case remanded for a new trial, such that Henley demonstrated he was prejudiced by counsel’s deficiency. Accordingly, appellate counsel was ineffective, and we reverse and remand for a new trial."

Alfredo Martez Johnson v. State of Indiana (10/31/06) - From the dissent, by Judge Vaidik: "I respectfully disagree with the majority that the trial court did not abuse its discretion in finding Johnson’s mental illness as a mitigator and then in finding as aggravators that Johnson did not regularly take his medication for schizophrenia and that Johnson is a risk if he is released from prison and does not take his medication. Although the two aggravators are phrased differently from the mitigator that Johnson has schizophrenia, they both deal with Johnson’s failure to take his medication, which is a hallmark of schizophrenia. * * * Studies show that chronic schizophrenic patients globally have a medication noncompliance rate of fifty percent. * * * Because medication noncompliance is very common in schizophrenic patients in general and with Johnson in particular, I believe that Johnson’s mental illness is either a mitigator or it is not a mitigator, but it cannot be both a mitigator and two aggravators. See Wessling v. State, 798 N.E.2d 929, 939-40 (Ind. Ct. App. 2003). Because the record does not contain any of the psychiatrists’ reports concerning Johnson’s mental illness, I am unable to determine the significance of Johnson’s mental illness and the weight to which it is entitled.2 I would therefore remand the case for a new sentencing order."

Posted by Marcia Oddi on Saturday, November 04, 2006
Posted to Ind. App.Ct. Decisions

Ind. Courts - Catching up on judicial races

Here are several stories from the past two weeks on Indiana judicial races:

The Bedford Times Mail reports on the race for the Lawrence Superior Court I judge’s seat - "Andrea McCord and Michael Robbins say they have come to know what’s important to the public they serve. The two are running for the Lawrence Superior Court I judge’s seat. Robbins, a Democrat, now holds the seat. McCord’s experience on the bench has come in Lawrence Circuit Court."

The candidates for Hamilton County Superior Court 6 Judge are described in this Carmel Topics posting. Interestingly, only one candidate's name is provided.

The Terre Haute Tribune-Star has a long story by Deb McKee that begins:

TERRE HAUTE — The candidates in the race for Vigo County Division 6 Superior Court Judge are coming at the position from two different perspectives, even though both currently serve as judges.

Michael J. Lewis, 41, the Democrat candidate, has been sitting judge for Terre Haute City Court for the past four years. James R. Walker, Republican, is the incumbent in Division 6, but has only held the job since January. For 27 years prior to his appointment to the court, Walker, 53, has worked in the Vigo County Prosecutor’s Office.

The new court was established through legislation in the Indiana General Assembly in 2005, to provide assistance with high caseloads in Divisions 1 and 3. The court is expected to handle about half criminal and half civil cases. It began processing cases in January. Walker was appointed by Gov. Mitch Daniels to preside as the first judge of Division 6.

The judge’s salary, set by Indiana statute and paid by the state, is $110,500. Vigo County pays an additional $5,000.

The Indiana Daily Student has separate stories on Frances Hill and Valeri Haughton, who are running for "for Monroe County Circuit Court judge, seat three."

Posted by Marcia Oddi on Saturday, November 04, 2006
Posted to Indiana Courts

Ind. Decisions - Catching up on some Court of Appeals opinions [Updated]

No way to catch up on nearly two weeks' worth of Court of Appeals opinions in my "free time." But I will try to highlight a few of them, particularly those which led to newspaper stories.

Alan Stowers & Sherry Stowers v. Clinton Central School Corporation (10/26/06) was reported in this Oct. 29th AP story, headlined "New trial ordered in suit over '01 football death."

Here are more reports:

Flying J., Inc. v. City of New Haven, Board of Zoning Appeals (10/31/06) was reported in the Fort Wayne News Sentinel under the headline "Flying J prevails in zoning dispute: Appeals court rejects earlier ruling, says company can build travel plaza on land west of I-469 in New Haven."

In the Matter of W.C.B. (11/1/06) is briefly reported in this Indianapolis Star story that begins: "Even though minors cannot legally consent to sexual activity, they can be charged as a juvenile delinquent under the state’s child molesting law, the Indiana Court of Appeals has ruled."

This one is not yet a Court of Appeals decision - the AP reported Oct. 31st: "SULLIVAN, Ind. - A woman's retrial in her husband's 1997 killing has been put on hold while the Indiana Court of Appeals decides whether jurors can visit the alleged murder scene.

This story from the Oct. 27th South Bend Tribune reported on an upcoming oral argument:

SOUTH BEND -- An Indiana Court of Appeals case scheduled for this afternoon will be the first all-access courtroom action photographed in a St. Joseph County court under the state's cameras in the courtroom pilot program.

As part of the appeals court's "on the road" series, a three-member panel will hear oral arguments in the case of Anita Stuller, et al v. Mitchell E. Daniels, Indiana's governor.

The court is asked to interpret an Indiana statute to determine whether the state was required to follow public bidding procedures when contracting for the operations of a Fort Wayne residential development center.

A television camera operator, newspaper photographer and radio reporter will be allowed to record the proceedings inside the St. Joseph Circuit Courtroom of Judge Michael Gotsch, one of eight trial courts participating in the cameras project.

Gotsch's courtroom was first opened to cameras July 5, but the recordings included no sound and focused mostly on the judge, since all parties must consent to being electronically documented.

Other courts across the state have had proceedings recorded by cameras, but the appeals case is the first time the court in South Bend will fully participate.

Proponents of the cameras project say it will help educate the public and make the courts more accessible. Opponents argue the presence of cameras will alter the judicial process and court activity.

A three-member panel of judges, including former St. Joseph County Prosecutor Michael P. Barnes and Terry A. Crone, who served as circuit court judge in the courtroom before Gotsch, will hear the case.

See also this AP story, headed "Court hears appeal in developmental center lawsuit."

Posted by Marcia Oddi on Saturday, November 04, 2006
Posted to Ind. App.Ct. Decisions

Ind. Courts - Lake bar survey recommends retention of 3 local judges

Susan Brown of the Munster (NW Indiana) Times writes:

The Lake County Bar Association survey recommends the retention of all three judges appearing on Tuesday's election ballot, according to an announcement Friday.

Superior Court Judge Jeffery Dywan received a rating of well qualified.

Qualified ratings went to Superior Court Judges Jesse Villalpando and Salvador Vasquez.

The bar association conducts the survey during election years to assist the public on Election Day. The survey is sent to all lawyers living and practicing in Lake County.

The survey asks lawyers to rate judges in the areas of competence, temperament and character. Lawyers may choose from a scale of exceptionally well qualified, well qualified, qualified, less than qualified or not qualified.

In addition, the survey asks for a yes or no recommendation for election or retention.

Of the 259 lawyers responding regarding Dywan, 86 percent recommended he be retained. Of the 202 responding regarding Villalpando, 81 percent recommended retention. Of the 140 responding regarding Vasquez, 68 percent recommended he be retained.

Posted by Marcia Oddi on Saturday, November 04, 2006
Posted to Indiana Courts

Ind. Courts - St. Joseph County Prosecutor Michael Dvorak sued opponent Greg Kauffman on Friday

The South Bend Tribune reports today, in a story by Patrick M. O'Connell that begins:

In an unorthodox political move only four days before the election, St. Joseph County Prosecutor Michael Dvorak sued opponent Greg Kauffman on Friday, alleging the Republican challenger's television commercials are false and defamatory.

The petition filed Friday in St. Joseph Circuit Court alleges the 30-second television ad airing on two local stations "injures the reputation, diminishes esteem, respect, good will and confidence in" Dvorak. A judge will hear the case this morning.

In the commercial, which began running Friday two times a day, Kauffman says Dvorak "contradicts state law" because he hired his wife, Kathleen Dvorak, to run the prosecutor's child support division.

Kauffman has claimed throughout the campaign that Dvorak's hiring of his wife represents nepotism. Dvorak, a Democrat, has said consistently he violated no laws because he does not personally supervise his wife. Dvorak provided a list of several other Indiana prosecutors who have family members working on their staffs.

Dvorak's camp requested a temporary restraining order or preliminary injunction, asking the court to immediately stop the commercials. An emergency hearing on the petition was held at the courthouse in Mishawaka minutes before the building closed for the weekend.

But the commercials were still scheduled to run Friday night and Saturday morning on WSBT and WNDU after Magistrate David T. Ready ordered another judge to hear the case.

Ready can only make a recommendation on the petition to Circuit Court Judge Michael Gotsch, who served in Dvorak's administration when Kathleen Dvorak was hired.

Ready granted Kauffman's request for a new judge based on grounds of impartiality and conflict of interest.

A hearing in front of St. Joseph Superior Court Judge David C. Chapleau is scheduled for 10 a.m. today to decide the issue.

Posted by Marcia Oddi on Saturday, November 04, 2006
Posted to Indiana Courts

Ind. Courts - "Judge says her school passes probes"

"Judge says her school passes probes: Lake Superior Court Judge Julie Cantrell's driving school has been investigated" is the headline to a story by John Byrne in today's Gary Post-Tribune. It begins:

Federal and state investigators have been looking at records about Lake Superior Court Judge Julie Cantrell's driving school.

The judge says both groups have given her program a clean bill of health after addressing allegations that money from the court-run program for traffic offenders had been misappropriated.

"I received a fax (Friday) afternoon from the state Commission on Judicial Qualifications," Cantrell said. "They said they had looked into it, and they had dismissed the complaint."

The fax from the state commission was not made available to the Post-Tribune.

Meg Babcock, attorney for the Commission on Judicial Qualifications, declined comment.

Stephan Neese, who designed the traffic school for Cantrell, said federal investigators interviewed him in May about the program and requested records, which he provided.

The Commission on Judicial Qualifications subpoenaed his records about the program in late October, Neese said.

"I complied with their requests," Neese said.

The scrutiny began when a colleague of Cantrell's, Lake Superior Judge Jesse Villalpando, alleged this year that Cantrell was overcharging defendants in recent years for taking part in the school.

In a wide-ranging critique to state and federal officials, Villalpando said the extra money was being diverted to other locations.

Cantrell said she placed the driving school on "temporary hiatus" months ago because of the negative attention it was receiving.

"I just wanted to make sure I was doing everything the right way," Cantrell said.

Federal investigators apparently responded to Villalpando's claims with an audit of their own, Cantrell said.

"As far as I know, (federal investigators) didn't find anything wrong, either," Cantrell said.

Federal investigators were not available to comment Friday.

Villalpando declined comment.

Posted by Marcia Oddi on Saturday, November 04, 2006
Posted to Indiana Courts

Ind. Gov't. - Calumet Township Trustee v. Twp. Board disputes continue

On July 21st the Court of Appeals issued an opinion in Township Board of Calumet Township of Lake County, et al v. Mary L. Elgin, where the Court denied the Twp. Board's efforts to "micromanage" the expenditures of the Twp. Trustee.

Apparently all is still not amicable between the two entities. Yesterday, a story by Jon Sediel of the Gary Post-Tribune began:

Calumet Township Trustee Mary Elgin is trying to overturn a seven-year-old court ruling the Township Board has been using to hire its own attorney.

In his motion to vacate judgment, filed in October, Elgin attorney Dock McDowell argues that a Lake Superior Court decision in August 1999 is not valid.

The decision was made after the Calumet Township Board sued the Calumet Township trustee in 1991.

McDowell states in his motion that the Township Board did not follow the law in filing its original lawsuit.

He also states that the court exceeded its authority in making the decision, and that the Township Board does not have the legal right to file a lawsuit.

Posted by Marcia Oddi on Saturday, November 04, 2006
Posted to Indiana Government

Friday, November 03, 2006

Ind. Decisions - Transfer list for week ending November 3, 2006

Here is the Indiana Supreme Court's transfer list for the week ending November 3, 2006.

Nearly three 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 (will be updated Sunday, November 5th).

Posted by Marcia Oddi on Friday, November 03, 2006
Posted to Indiana Transfer Lists

Ind. Decisions - List of Court of Appeals NFP opinions issued for the week ending November 3, 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 November 3, 2006.

Posted by Marcia Oddi on Friday, November 03, 2006
Posted to NFP Lists

Ind. Law - Indiana Lawyer James Bopp Jr. featured in Nov. ABA Journal

"The Big Bopper: This Terre Haute Lawyer is Exploding the Canons of Judicial Campaign Ethics" is the title of a 5-page article by Terry Carter in the just-out November issue of the ABA Journal. A quote:

[Bopp] has become perhaps the most prominent lawyer in the country in campaign finance and election law, especially as the go-to-guy for conservative religious groups wanting to work within the system, but work it for sure.

Most recently, Bopp has been on a tear to make judicial campaign speech more wide open and more like that for the other branches of government. He wants judges and candidates to say what they think, especially about abortion, assisted suicide and same-sex marriage. Some states' judiciaries are convulsing in their attempts to deal with the pressures and lawsuits he is bringing to bear.

The ILB has had many entries referencing Bopp's various lawsuits involving the judiciary. Included in the list are entries about the suit brought by Bopp, pending in the the Northern District of Indiana, against the Indiana Supreme Court, Indiana Right To Life Inc et al v. Randall T. Shepard et al - check here for more information.

Notably, Bopp was earlier this year appointed Indiana Republican National Committeeman by Governor Daniels.

Posted by Marcia Oddi on Friday, November 03, 2006
Posted to Indiana Law

Ind. Gov't. - "Illinois' pension nightmare"

"Illinois' pension nightmare: Funds for teachers, state workers face a $45.8 billion shortfall" is the lead story today in the Chicago Tribune. The lengthy report begins:

Illinois' next governor must grapple with a problem 30 years in the making: keeping retirement promises to more than 660,000 active and retired teachers and state workers.

Years of scrimping on pension contributions coupled with benefit increases have turned the state into a poster child for a growing national problem.

Illinois, with an estimated $45.8 billion pension shortfall, has among the worst funding records in the country. From Connecticut to Oklahoma, pension obligations are threatening to overwhelm budgets, pinching states' ability to pay for pressing priorities such as education, transportation and health care.

Staying on track with a long-term plan to fix Illinois' pension problem will require the kind of tough choices that politicians have avoided for years.

Before the next governor's term ends in 2010, the required minimum annual contribution will have more than doubled from the current fiscal year to nearly $4 billion. That's about equal to the current year's projected outlay for state aid for elementary and secondary schools.

"The size of the growing pension contribution needs will swamp all other priorities in a very short time," said Laurence Msall, president of the Civic Federation, a non-partisan watchdog group.

Posted by Marcia Oddi on Friday, November 03, 2006
Posted to Indiana Government

Ind. Law - "Hoosiers' tactic to squeeze O.J. Simpson defeated"

Updating this Sept. 5th ILB entry headed "Indy law firm files action in Calif. on behalf of Fred Goldman, involving O.J.Simpson," and this one from Oct. 19th quoting an AP story that began "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," the online Indianapolis Star reports this morning, in a story headed "Hoosiers' tactic to squeeze O.J. Simpson defeated":

A California judge rejected a legal tactic dreamed up by two Indianapolis men designed to force O.J. Simpson to surrender control of his publicity rights in order to help satisfy a judgment in a wrongful death lawsuit.

Superior Court Judge Linda Lefkowitz tossed out Fred Goldman's petition, determining such a move would harm a living celebrity's privacy rights "which mitigate against court-enforced transfer of the (publicity) right to obtain commercial profit from his or her likeness."

Simpson's attorney praised the judge's decision. "There has never been a case in the U.S. where a judge has involuntarily taken somebody's identity rights," attorney Yale Galanter said in a telephone interview from Florida. "If she did, the Goldmans would be able to speak on behalf of O.J. Simpson. They'd be able to use his image without his approval."

Goldman's attorney said he was disappointed by the judge's ruling, which was issued Tuesday. "This is but another chapter in the long story of the Goldman family's search for justice against O.J. Simpson, a story that is far from over," attorney Jonathan Polak said, adding an appeal will be filed.

Polak and Hoosier colleague Karl Manders drafted the plan to obtain Simpson's publicity rights for Goldman. Manders is the owner of Indianapolis-based Continental Enterprises Inc., an intellectual property consulting company. Polak is director and chairman of the Intellectual Property Group at Indianapolis law firm Sommer Barnard.

Posted by Marcia Oddi on Friday, November 03, 2006
Posted to Indiana Law

Ind. Courts - "Marion Superior Court is set for '07"

The full heading to this Indianapolis Star story by Jon Murray is "Marion Superior Court is set for '07: You'll elect them Tuesday, but no matter whom you pick, all 20 candidates will win." It begins:

Courtroom assignments already have been decided for the 20 Marion Superior Court judges who will start new six-year terms on the bench in January.

There's just one formality left: Tuesday's election.

Marion County voters will see 10 Democrats and 10 Republicans on the ballot. But no matter whom they choose, all 20 candidates will win.

That's a slight change from the last time Marion County judges were on the ballot. In 2000 and 2002, the parties supplied an even number of candidates for an odd number of seats, ensuring at least one would lose.

The lack of uncertainty is one of several effects of a bill passed earlier this year by the General Assembly.

The law also added courts and judges to the overworked Marion County system and tried to remove some of the politics, ensuring an equal number of judges for each party.

In future elections, nobody will lose in Marion County unless third-party candidates get on the ballot.

Posted by Marcia Oddi on Friday, November 03, 2006
Posted to Indiana Courts

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

Last Friday the ILB posted an entry on Indiana Right to Life's call for "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."

The American Family Association of Indiana has a similar posting, available here.

Gary Welsh of Advance Indiana last evening posted a long and useful entry headed "Right To Life Misrepresents Judges' Records" that takes a look at the rulings cited by the two organizations.

Posted by Marcia Oddi on Friday, November 03, 2006
Posted to Indiana Courts

Thursday, November 02, 2006

Ind. Courts - State judges endorsed by Montgomery County League of Women Voters

Via a guest columnist slot in The Paper of Montgomery County, the League of Women Voters writes:

In the upcoming Nov. 7 election, Montgomery County voters will be asked whether or not to retain three state judges.

Indiana has five supreme court justices, 15 appellate court judges, and one tax judge. All are selected through the same process. When there is a vacancy on the court, a seven-member Judicial Nominating Commission submits a list of three nominees to the governor, who then selects one for appointment.

Eligibility requirements are that the nominee must be a practicing attorney for 10 years or a trial judge five years. Justices, like trial judges, are required to retire at age 75.

After a newly appointed justice serves two years, the people of Indiana vote on whether he or she should be retained. If the voters say yes, then the justice stays on the court for ten more years. They each face retention votes every ten years.

In November all voters in Indiana will vote on whether Justice Frank Sullivan Jr. should be retained. Justice Sullivan, former state budget director and Indianapolis attorney, was appointed to the Indiana Supreme Court in 1993.

All Indiana voters will also be voting whether or not to retain four of the appellate court judges. All voters in the state will vote whether Judge Patricia A. Riley should be retained on the 4th District Court of Appeals. She was originally appointed to the Court of Appeals 4th District in 1994.

Montgomery County voters, along with voters in 52 other counties will be voting on whether or not to retain Judge Edward W. Najam Jr who is Presiding Judge of the First District Court of Appeals.

The Indiana Judicial Nominating Commission, which recommends judicial appointments to the governor, is comprised of seven members. The Chief Justice of the Indiana Supreme Court or his designee is ex-officio chair. Three lay citizens are appointed by the governor, and three lawyers are elected by other lawyers, all to 3-year terms. The three lawyer members each represent one of three districts in the state - Northern, Central and Southern.

Indiana is one of only 12 states where high-court judges are not directly elected. Our process is called "merit selection and retention election." In the 38 states with direct election, the process has become highly politicized with special interest groups and evangelical groups spending multi-millions of dollars on campaigns to defeat or elect judges who agree with them on hot-button issues.

Judges cannot campaign unless they have been attacked by an organized group or organized opposition. However, the Indiana State Bar Association sends surveys to all attorneys asking for their evaluations of judges. Bar members support the retention of all judges on the ballot this November. The Indiana Bar vote for Justice Sullivan was 81 percent yes, 15 percent no and 4percent abstain. The vote for Judge Riley was 70 percent yes, 21 percent no and 9 percent abstain, and the vote for Judge Najam was 78 percent yes, 13 percent no and 9 percent abstain.

The Indiana merit selection and retention system was adopted by Constitutional Amendment in 1970. The League of Women Voters of Indiana, the Indiana Chamber of Commerce, and the Indiana Council of Churches worked in coalition to support the amendment and move selection of our high-court judges from partisan election to merit selection and retention.

The League of Women Voters, a nonpartisan organization open to all citizens 18 and older works to promote informed and active participation in government and to influence public policy through education and advocacy. For information about the League, visit the Web site www.lwvmontgomerycounty.org or voicemail 339-6598.

Posted by Marcia Oddi on Thursday, November 02, 2006
Posted to Indiana Courts

Ind. Decisions - 7th Circuit Indiana cases since Oct. 23rd

In Johnson v. Finnan (11/2/06, SD Ind., Richard L. Young, Judge), a 4-page opinion, Judge Easterbrook writes:

Disciplinary panels in state prisons are not courts. White v. Indiana Parole Board, 266 F.3d 759, 765-66 (7th Cir. 2001). From this it follows that facts found (or assumed) by a prison disciplinary board are not entitled to the presumption of correctness that 28 U.S.C. §2254(e) affords to judicial findings. Piggie v. McBride, 277 F.3d 922, 925 (7th Cir. 2002). This means, in turn, that when a prisoner who seeks a writ of habeas corpus provides competent evidence (such as an affidavit by someone with personal knowledge of the events) contradicting an assertion by the prison disciplinary board on a material question of fact pertinent to an issue of constitutional law, the district court must hold an evidentiary hearing to determine where the truth lies. Piggie, 272 F.3d at 926; Pannell v. McBride, 306 F.3d 499 (7th Cir. 2002). We publish an opinion in this run-of-the-mine appeal because these established propositions frequently are overlooked in litigation arising from Indiana’s prison system. * * *

Prison disciplinary boards are entitled to resolve conflicts in the stories presented to them, as long as “some evidence” supports the decision. Superintendent v. Hill, 472 U.S. 445 (1985). But they are not entitled to prevent the prisoner from offering material evidence. If Johnson is telling the truth, that’s exactly what this board did. An evidentiary hearing must be held to determine what happened. If Indiana wants federal courts to treat its decisions with more respect, it has only to provide for review in its own courts as an initial matter. REVERSED AND REMANDED

In Northcutt et al v. GM Hourly Rate Employeees Pension Plan (11/2/06, SD Ind., Sarah Evans Barker, Judge), a 16-page opinion, Judge Ripple writes:
James Northcutt and Lewis Smith brought this action seeking pension plan benefits withheld from them by their employer, General Motors Corporation (“GM”). GM had suspended the payment of these benefits and was treating the amount otherwise due to the plaintiffs each month as reimbursement for past disability and pension plan overpayments. Mr. Northcutt and Mr. Smith claim that § 502 of the Employee Retirement Income Security Act (“ERISA”), 29 U.S.C. § 1132, prohibits GM from invoking contractual remedies for reimbursement and instead requires GM to seek equitable relief before a court. The district court granted summary judgment for GM; it determined that § 502 did not preclude the enforcement of the recoupment provisions. We agree with the district court and therefore affirm its judgment.
In U.S. v. Riakos Barker (10/30/06, ND Ind., Theresa L. Springmann, Judge), a 9-page opinion, Judge Bauer writes:
A jury convicted Riakos Barker of being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1) and two counts of aiding and abetting a straw purchase in violation of 18 U.S.C. § 924(a)(1-2). Barker was sentenced to 108 months of imprisonment. On appeal, Barker argues that (1) the district court erred in denying his motion to suppress; (2) the government violated Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963), by failing to provide a witness statement until the first day of trial; and (3) his due process rights were violated by the enhancement of his sentence. We affirm.

Posted by Marcia Oddi on Thursday, November 02, 2006
Posted to Ind. (7th Cir.) Decisions

Ind. Decisions - U.S. Supreme Court denies cert in Armstrong case

An ILB entry from March 2, 2005 began:

According to this story in the Princeton Daily Clarion, the Indiana Supreme Court has granted transfer in the case of Michael Armstrong v. State of Indiana, where the issue was, according to this ILB entry from 11/24/04: When a passenger jumped from defendant Armstrong's moving vehicle and was injured as a result, was Armstrong involved in an accident for purposes of IC 9-26-1-1, triggering the duties under that statute?
This ILB entry from June 19, 2006, quotes from a story headlined "Evansville attorney disturbed by Supreme Court decision." The decision, summarized here, was Michael C. Armstrong v. State of Indiana, which held "We hold today that a driver of a vehicle who leaves the scene of an accident resulting in injury or death may be held criminally responsible even if the driver’s vehicle did not strike the injured or deceased party."

Today the Princeton Daily Clarion, in a story by Travis Neff, reports:

WASHINGTON, D.C.-The United States Supreme Court on Monday declined to hear an appeal from attorneys representing a Gibson County man facing charges related to a 2003 incident that resulted in a man's death, according to the court's on-line docket sheet.

Michael C. Armstrong is with failure to stop after an accident resulting in death, in connection to the death of Craig Mobley of Owensville.

Armstrong was driving his Ford Explorer on CR400W with Mobley riding as a passenger when Mobley apparently jumped from the vehicle as it was moving, according to court records.

Armstrong is scheduled to be tried in the Gibson Circuit Court.

A writ of certiorari asking for justices to review the case was filed by Armstrong's attorneys, John D. Clouse and Ivan A. Arnaez, but was denied by the high court.

The U.S. Supreme Court receives thousands of appeals each year, and only hears a small percentage of those cases. Justices and court staff have the discretion to decide which cases are heard before the Supreme Court.

Armstrong's attorney, Arnaez, of Evansville, had argued before Gibson County Superior Court Judge Earl Penrod that the case should have been dismissed, since Armstrong's vehicle never struck Mobley.

Penrod denied the motion to dismiss, but certified a request by Arnaez to have the Indiana Court of Appeals interpret the statute phrase “involved in an accident.”

The appellate court ordered the case to be dismissed on the grounds that while the vehicle was involved in the accident, the charges could not be held against Armstrong retroactively.

Gibson County Prosecutor Rob Krieg then asked the Indiana Attorney General to take the case before the Indiana Supreme Court.

Arnaez's appeal went to the state Supreme Court, which ruled with Penrod that Armstrong can be tried. The Indiana high court agreed to vacate the appellate court's decision in April 2005.

Arnaez proceeded to ask the U.S. Supreme Court to hear the case, because he said he believes the Indiana Supreme Court applied the charges retroactively against his client, which he sees as a threat to individual civil liberties.

In the writ to the U.S. Supreme Court, Armstrong's attorneys argued that all Indiana state laws and legal precedent state that a vehicle must actually strike a person, for the “leaving the scene” statute to apply.

Arnaez said although his client may be an “unpopular guy,” he believed the law was being applied incorrectly and that threatened to allow government to charge individuals with crimes in an inappropriate manner.

Arnaez said he was disappointed the U.S. Supreme Court will not hear the case and said he and Clouse will consult about what steps to take next.

“Now this means the U.S. Supreme Court has said the government can make anyone they want a criminal after the fact,” Arnaez said. “That's going to make one hell of a mess.”

Arnaez said this was the type of case he said he felt the U.S. Supreme Court should agree to hear. “I'm surprised they didn't grant the writ,” Arnaez said.

Armstrong is also facing federal drug trafficking charges after a separate arrest. He was arrested in September in a federal drug investigation for trafficking powder cocaine, crack cocaine and marijuana.

Arnaez said he hopes to have his client's federal charges addressed before proceeding with the state charges filed in connection with the death of Mobley.

“When the federal wheels start to turn, they may turn slowly, but they are hard to stop,” he said.

Arnaez said he and Clouse will try to decide on a different course of action to have the state charges for failure to stop after an accident dismissed, but said they would also address the federal charges filed against Armstrong. “It's hard to juggle two cases at the same time, but we will keep them in the air.”

Krieg, who could not be reached for comment Wednesday night, but has previously said in cases where a suspect faces both federal and state cases, accommodations are usually made so both government entities can try the separate cases.

First Asst. U.S. Attorney General Tim Morrison said there are procedures which have to followed when transferring a defendant between federal and state custody.

“You may run into some trouble while ‘prisoner shuffling,' but certain writs can be issued which allow problems to be overcome,” Morrison said.

Armstrong's trial in connection with the death of Mobley is scheduled to begin Jan. 8 in Gibson Superior Court.

Posted by Marcia Oddi on Thursday, November 02, 2006
Posted to Indiana Decisions

Ind. Courts - "Juvenile matters a priority in Clark"

Ben Zion Hershberg of the Louisville Courier Journal reported Wednesday that:

Both candidates for judge of Clark Superior Court 1 say their top priorities include new programs to fight juvenile alcohol and substance abuse, including a drug and alcohol court.
A long story follows on Democrat Vicki Carmichael and Republican candidate Steven P. Langdon.

In addition, the Courier-Journal surveyed Clark Superior Court 1 candidates on three issues:

Magistrate and judge — Do you believe Clark County needs an additional magistrate and a judge to manage its judicial system effectively?

Judges and council dispute — Do you support the current view of Clark County judges that the judges, and not the county council, should control probation user fees?

Jail crowding — How can the judicial system be made more efficient in Clark County to relieve jail crowding?

See the results here.

Posted by Marcia Oddi on Thursday, November 02, 2006
Posted to Indiana Courts

Ind. Courts - Madison Circuit Court race

The Anderson Herald Bulletin reported last weekend on the Madison Circuit Court race. Some quotes from the story by Lee Noble:

In the only contested court race in the county elections, the Democratic Party stands to lose equal footing with their Republican counterparts.

If incumbent Democrat and Madison Circuit Court Judge Fredrick Spencer would lose his seat to the younger Republican deputy prosecutor Tom Chaille, GOP judges will wield a 4-2 majority behind the benches.

Spencer, 68 and in his 24th year as Circuit Court judge, says his community involvement and civic leadership are some of his greatest assets.

His challenger Tom Chaille, 36, and a 10-year deputy prosecutor in Rodney Cummings’ office, calls for a change in the courts that is long sought after in some circles, and calls into question the incumbent’s ethical standing.

Although Spencer has been judge longer than his opponent has practiced law, he’s not resting on experience to pull him through in the Nov. 7 election.
“I feel that my community involvement and leadership is another part of it, especially weighed against that of my opponent, not that I know what he does or that he doesn’t do anything, but that community involvement is very important for me,” he said.

And it would seem Spencer’s supporters are much more vocal than Chaille’s. The judge’s comments at a recent debate with his opponent were met with a livelier response than the deputy prosecutor’s.

Chaille’s 10 years of public service fall short of Spencer’s, but he says he thinks his focus on law at his post in the Madison County prosecutor’s office during his tenure has him prepared. Furthermore, he counts the fresh perspective that comes with youth as an asset.

“I think I’m uniquely experienced to step in,” he said. In that experience he can lump hundreds of felony cases prosecuted and a lifetime living in Madison County. “I think I’ve developed a real understanding of issues as they affect the people of Madison County and that should translate to an understanding of those problems from the bench,” he said.

He likes the court unification idea. “I would unify Circuit Court with the other five courts in the county,” Chaille said. “I think there’s a simple way to make the courts more efficient, to distribute caseload and to reduce the duplication of services.”

Although Spencer calls court unification a “non-issue” perpetuated by the other judges for two decades, Chaille agrees with them.

Madison Superior Court 3 Judge Thomas Newman started the idea in 1980, seeking to unite all six of the county’s courts into one Circuit Court. He succeeded in uniting five courts under one administrative umbrella, with one holdout, the Circuit Court judge at the time, Carl Smith.

It put all three Superior Courts and two Madison County Courts together with one probation office, one budget and one jury administrator.

What to Newman and others was simply a better business model that could save taxpayer dollars and the court’s time, is to Spencer something else. “Quite honestly I don’t see much advantage,” Spencer said. “I don’t know that it’s a bad idea. I just don’t know that it’s a good idea.”

Spencer said he hasn’t seen enough evidence to convince him that a single unified Circuit Court is more efficient than the current system, pointing out that it is only in place in two counties in Indiana, Monroe and Delaware.
Chaille also points out Spencer’s recent ethical violations, as found by the state’s judicial disciplinary commission.

“One of my main concerns is my opponent’s record with ethical authorities in the state of Indiana,” he said. “I think it illustrates a pattern of unethical behavior that I’m asking voters to consider in selecting their next Circuit Court judge.”

The disciplinary commission found Spencer in violation in 1997, 1999, 2001 and 2003, according to Chaille, for violations such as talking to one side in a case without the other knowing on two separate occasions, promising future conduct in campaign materials and seeking public stature.

Despite slips ups, Spencer said his priorities are focused on an existing social effort he favors, called “the de-glamorization of drug use.”

“If I had one thing that I could change it would be for society to not see drug use as a glamorous thing,” said Spencer. “For some reason drug use seems like a fun thing to do to a lot of people but it ends up pretty miserable.”

He hopes that through his work as a judge he may be able to communicate to the community how dangerous drugs are.

Chaille said some major efforts if he were elected judge would be balancing accountability with responsibility, keeping public safety in mind at all times, carefully monitoring the court calendar and making sure cases move through the system as quickly and efficiently as possible.

Posted by Marcia Oddi on Thursday, November 02, 2006
Posted to Indiana Courts

Ind. Courts - "Review clarifies judge's words"

"Review clarifies judge's words" is the headline to a story by Chris Schilling in the Columbus Republic:

A tape recording of what has become a controversial court hearing shows that Judge Chris Monroe interrupted a man's testimony, but never told him "God is not in this courtroom."

Edinburgh resident Jeff West appeared before Monroe in Superior Court 1 Sept. 18, asking for visitation opportunities with his son.

West wrote in a letter to the editor that the judge told him "in a hateful voice that 'God is not in this courtroom, and he cannot be your witness today.'"

Since West's letter was published, two other letters have appeared in The Republic, one from a writer supporting Monroe and one from the judge.

A review of the tape shows that West made a statement during the hearing followed by the comment, "with God as my witness."

Monroe stopped West and told him, "I'm sorry, God is not going to testify here today, that's really not helpful."

Also during the 20-minute hearing, West and Monroe made several references to religion.

Monroe also cited letters West wrote to his wife about his unfaithfulness to her.

West said that he had been saved by Jesus Christ.

However, the judge told West he was skeptical of someone getting saved with expectations that his legal problems would go away and his life would return to how he wanted it.

"If you were following Jesus Christ, you probably should understand that what you did really screwed stuff up," Monroe said.

The judge denied West's request for visitation.

Posted by Marcia Oddi on Thursday, November 02, 2006
Posted to Indiana Courts

Ind. Courts - "Budget, family center, caseload top issues for judge candidates"

"Budget, family center, caseload top issues for judge candidates" is the headline to an article by Dave Kitchell of the Logansport Pharos-Tribune on the race for Cass Circuit Court judge. Some quotes:

Much can happen in six years when a public official is elected. Other than U.S. senator, no elected officeholder in Indiana has as long a term as the circuit court judge.

In Cass County, the job involves more than wearing a black robe and banging a gavel. The judge also runs a growing campus of social services.

The Cass County Family Opportunity Center has been expanded dramatically since former Circuit Judge Don Leicht opened it. During the past 12 years, retiring Circuit Court Judge Julian Ridlen has expanded the intervention and support offered through the facility, which was moved to the former Woodland Acres home. Sports facilities were built in what has become known as Aim-Hi Park. A committee has plans to do more, but the recommendation on what to do is awaiting a person in charge.

“I really don’t see making a lot of changes,” says Republican Sheryl Pherson, who defeated Robert L. Justice and Patrick McNarny in the primary. “I’m going to look at the programs, talk to the staff there and see what they feel is working well and see what they envision for changes. Obviously, we want to grow and expand on some of the programs that have already been started. The day treatment program is up and running.”

Democrat Leo Burns says having been in the court system when Leicht started the center, he has seen the success it has had and the need for its function. * * *

In the day-to-day management of the court system, Pherson sees some need to streamline the scheduling for court appearances, particularly on days when everyone who is asked to appear that day shows up at 8 a.m.

“The same people that came in at 8 o’clock are sometimes still there at noon,” she said. “It doesn’t bother me, but it can be a long day and some people may be missing work.”

Burns says Pherson has a broad background, but he has more experience in different types of law from representing the Pioneer and Southeastern school boards to being a city attorney and a deputy prosecutor.

Both candidates realize they will be under the gun to balance a caseload that has titled away from Circuit to Cass Superior Courts I and II. Burns says part of the reason for that shift is the retirement of Ridlen. Attorneys filing cases in his court now do not know which judge will eventually hear their cases.

“The state is interested in making sure that caseloads are equally distributed,” he said. “That’s a benefit to the citizens of the county. If you have three courts, you want to make sure they operate efficiently.

Posted by Marcia Oddi on Thursday, November 02, 2006
Posted to Indiana Courts

Ind. Courts - Update on: Montgomery County judges issue mandate for staff raises

The Montgomery County paper, 24-7, had this brief story on Oct. 27th:

The court case between the Montgomery county judges and the County Council on the mandated salary increase for the court employees has moved on to the next level.

Judge Julian Ridlen's findings were certified and sent to the Indiana Supreme Court, according to Montgomery County Clerk of Courts Jennifer Bentley.

"I sent them out Thursday," she said.

The Supreme Court will now review the findings and decide the next course of action.

In a related note, the contempt of court charge against Montgomery County Auditor Jeff Dossett, which was scheduled to go to trial Friday, was canceled by Ridlen.

An earlier Crawfordsville JournalReview story, from Oct. 24th, reported by Melissa Franklin, sheds light on the contempt of court charge:
After reading over his findings, special Judge Julian Ridlen thought he was a little harsh on Mon tgomery County Auditor Jeff Dossett and decided to make changes to his ruling.

Ridlen, of Cass County, read over his findings regarding the Judges' Mandate, County Attorney Dan Taylor said at the Tuesday County Council meeting. Ridlen made changes to an order and in two of his findings regarding Dossett. After reading over his findings, Ridlen thought he was a little harsh on Dossett and didn't intend to be, Taylor said.

Ridlen handed down his ruling on Sept. 19, which required the Montgomery County Council and Auditor to comply with the order in its entirety.

Ridlen's findings stated, aside from whether the matter was developed to include Dossett in the mandate proceeding, it is clear that Dossett has misdirected at least $15,000 in fees from the Bond Administration Fund to the County General Fund since August 2005. Ridlen ordered in his findings that Dossett should immediately make an accounting of all misdirected funds and transfer the same to the Bond Administration Fund.

Ridlen's ruling said Dossett willfully refused to comply with the amended mandate order and, unlike the Council, failed to appeal that order or otherwise appear or participate in this proceeding to seek or show cause why he did not comply with the order. Ridlen therefore found Dossett in contempt of court for his willful failure to comply with the judges' amended mandate order, and Dossett was to immediately make an accounting of all misdirected funds and transfer the same to the Bail Bond Administration Fund.

"I have hired the law firm of Barnes & Thornberg to represent me," Dossett announced to the council. The contempt hearing is set for Oct. 27, Dossett said.

This Sept. 21st ILB entry provides the necessary background.

Posted by Marcia Oddi on Thursday, November 02, 2006
Posted to Indiana Courts

Ind. Courts - "Six judicial seats await ballot judgment"

"Six judicial seats await ballot judgment" is the headline to a story today by Jon Seidel in the Gary Post-Tribune:

Six state and county judges will appear on next week's election ballot and beside most of them voters will see a simple choice: Yes or no.

Two Lake County Superior Court judges, Jeffery J. Dywan and Salvador Vasquez, face a retention vote next week.

So do Indiana Court of Appeals judges Terry A. Crone and Patricia A. Riley, as well as Indiana Supreme Court Judge Frank Sullivan Jr.

It is a chance for voters to show the judges whether they approve of the work they have done.

Dywan, a judge in Lake County's civil division, has held his office for more than 15 years.

During that time, Dywan said, he has served on various statewide committees that dealt with jury instructions and technology. He also has helped to oversee a reorganization of the court's civil division.

"I think the end result has been good," Dywan said.

Vasquez is a judge in Lake County's criminal division. Many of the county's most high-profile cases go through his courtroom.

Though he sees people accused of the some of the worst crimes imaginable, Vasquez said his court focuses on fairness.

"We treat everybody the same no matter who they are or what they've done," Vasquez said.

Crone, the appeals court judge from the state's third district, took office in March 2004.

As he continued his transition last year, Crone said, he was either fourth or fifth among the judges in the number of majority opinions written.

"I'm happy with the transition I've made," Crone said. "I've still got a lot to learn."

Riley, the appeals court judge from the fourth district, said her background in criminal prosecution and defense, civil law and her judicial experience play well into her role on the appeals court.

She said she spends time mentoring lawyers, and she tries to educate the entire public about the judicial process.

"We try to educate, to show, to demonstrate," Riley said. "That's my main goal."

Sullivan has served on the state's supreme court for 13 years. He said that, in addition to hearing cases, he has worked to help improve the technology in Indiana's courtrooms.

Though he said all cases that come to his courtroom are extremely important to the parties involved, cases that question the constitutionality of a law or deal with the death penalty are the ones he gives the most care.

"Those are decisions that are made only with the most careful and most complete consideration of the law," Sullivan said.

Another Lake County Superior Court Judge, Jesse M. Villalpando, is running unopposed for re-election.

Villalpando, whose court hears misdemeanors and Class D felony cases, defeated his two primary opponents by a healthy margin.

"I was very gratified by the overwhelming support that I received in the primary," Villalpando said.

Posted by Marcia Oddi on Thursday, November 02, 2006
Posted to Indiana Courts

Ind. Courts - "State's high court may hear Clark battle over fees in December"

Ben Zion Hershberg writes today in the Louisville Courier Journal that the "Indiana Supreme Court is tentatively scheduled to hear oral arguments Dec. 14 in a fee dispute between the Clark County Council and the county's judges." More:

At issue is who controls hundreds of thousands of dollars worth of probation user fees collected by the courts.

A Supreme Court decision in the case is likely to have statewide impact on the way county councils and judges interact with one another in managing such fees, which are collected from those put on probation to help pay for the services they receive.

Ruling on a lawsuit filed by the judges against the County Council in March, Special Judge Elaine Brown said the council acted improperly when it appropriated the fees for use in the 2005 and 2006 county budgets, even though the money was used to help pay court costs.

State law gives the judges control over such fees, Brown ruled, adding that the County Council should repay the courts the money improperly appropriated -- an estimated $1.3 million.

The council appealed Brown's ruling to the Supreme Court, which initially ordered the case to mediation. But that failed to settle the dispute.

David Lewis, one of the lawyers representing the judges, said extensive briefs have been filed with the court by both sides so the justices will be familiar with all the issues. But the oral arguments will give the justices a chance to ask "pointed questions" of both sides, he said.

The attorney for the council, Scott Lewis (no relation to David Lewis), said he doesn't believe either side gets an advantage from oral arguments. He expects the council's Indianapolis lawyers, led by Mark Crandley, to make the arguments before the Supreme Court.

Geoff Davis, an administrator for the Supreme Court, said the court hasn't formally set Dec. 14 as the date for the arguments but has checked with the lawyers on both sides to see if they are free and has been told they are.

The ILB has followed this dispute closely. For background, begin with this September 10th entry.

Posted by Marcia Oddi on Thursday, November 02, 2006
Posted to Indiana Courts

Ind. Courts - Audit of East Chicago City Court raises legality of community service in lieu of paying fees

This Indiana state board of accounts (SBOA) audit, filed Oct. 30, 2006, raises this issue re the City Court of East Chicago on page 6:

The judge or probation officer will allow defendants to perform community service in lieu of paying user fees and administrative costs. The amount of type of community service to be performed is determined by the judge or probation offer on a case by case basis. There are no predetermined guidelines.

We cannot find authority for community service to be performed in lieu of paying fees.

Beginning on page 10 is the response of the legal advisor to Judge Sonya A. Morris. The response cites the Court of Appeals decision in Mueller v. State.

Mueller was the Nov. 16, 2005 Marion County pretrial diversion case, Jamie Mueller & Vicki Evans v. State of Indiana. For background, start with this ILB entry from that date. Mueller concludes:

A practice of requiring payment of a fee as an absolute condition of participation in a pretrial diversion program discriminates against indigent persons in violation of the Fourteenth Amendment. The trial court erred in concluding otherwise. We reverse and remand for further consideration of Mueller’s and Evans’s indigency, if necessary.

Posted by Marcia Oddi on Thursday, November 02, 2006
Posted to Indiana Courts

Environment - "As Investors Covet Ethanol, Farmers Resist "

A fascinating front-page story in the NY Times today, headed "As Investors Covet Ethanol, Farmers Resist." Here is how it begins:

MALTA BEND, Mo. — Farmers do not see fast money very often. But with big profits gushing forth from ethanol plants, dozens of Wall Street bankers, in loafers and suits, have been descending on the cornfields of the Midwest promising to make thousands of farmers rich overnight.

Most of them, though, are proving surprisingly reluctant to cash in.

In this sleepy town of 250, for example, people have lived on the edge of despair for decades, dreaming of a way to make their corn worth more than $2 a bushel. Seeking a way out, a group of farmers from here and surrounding communities scoured the state three years ago to raise the money for a $60 million plant that would turn some of their corn into ethanol for cars and lift their incomes.

When ethanol prices soared to more than $4 a gallon this summer, the plant became a roaring success.

And that is when the big money types came knocking. New offers — some as high as $275 million — have rolled in just about every week from an investment bank or hedge fund seeking to buy the plant. For the farmers, particularly those who borrowed part of their investment, a sale could have meant a profit of as much as 10 times what they put in.

So far, however, the plant owners have said no. To them — and to many other farmers who have invested in ethanol around the country — the ethanol plants represent more than a winning lottery ticket. Instead, they signify an emotional investment in the future of their farms and communities, a chance for greater independence and a sense of pride that they are helping make America less dependent on foreign oil.

Posted by Marcia Oddi on Thursday, November 02, 2006
Posted to Environment | Indiana economic development

Wednesday, November 01, 2006

Ind. Courts - "Website focuses on judges up for retention"

"Website focuses on judges up for retention" is the headline of this article in the October 31, 2006 Chesterton Tribune:

The Indiana State Bar Association urges the public to review a website focusing on the judicial retention questions that will appear on the Nov. 7 ballot.

Indiana’s Supreme Court and appellate court judges stand for retention on the same ballot as candidates running for elected office. The judges up for retention this year are Supreme Court Justice Frank Sullivan Sr. and Court of Appeals judges James S. Kirsch, Terry A. Crone, Ezra H. Friedlander, Edward W. Najam Jr., and Patricia A. Riley.

The website address is indianadecisions.com/2006retentionballot.

The website contains background on the Indiana court system and how judges are selected; biographies on the candidates seeking retention; the results of the ISBA poll on whether the judges should be retained; information from the Secretary of State’s Office regarding the judicial retention question; questions for the appellate court judges; and other information.

The website was created by ISBA member and Indiana Law Blog author Marcia Oddi of Indianapolis.

Posted by Marcia Oddi on Wednesday, November 01, 2006
Posted to Indiana Courts

Ind. Decisions - Supreme Court denied transfer in Bob Knight open door case

"High court won't hear suit over Knight firing" is the headline to this AP story from last Wed., Oct. 25th. Some quotes:

INDIANAPOLIS — The state Supreme Court has declined to hear a lawsuit accusing Indiana University of violating the state's open-meetings law in the days leading up to the firing of former basketball coach Bob Knight.

That brings the lawsuit filed by 46 fans six years ago to a dead end, with the university's actions being upheld. * * *

The fans claimed that the school's nine-member board of trustees illegally met in two private sessions with Brand to discuss Knight's status.

University attorneys argued that the sessions did not constitute a meeting under state law because a majority of the board members were not present for either one.

A Clark County judge appointed to hear the case ruled against the fans in May 2005, and the Indiana Court of Appeals upheld the decision in June. The Supreme Court on Thursday included the lawsuit on a list of cases it had declined to consider.

The list mentioned is the Oct. 20th trasfer list, available here. The decision is James R. Dillman, et al v. Trustees of Indiana University, summarized in this ILB entry from June 2, 2006.

Posted by Marcia Oddi on Wednesday, November 01, 2006
Posted to Ind. Sup.Ct. Decisions

Ind. Law - Suit involving hospital system loss of records

"Letter warns patients of mishandled personal data" was the headline of an AP story published last Wednesday, Oct. 25. Some quotes:

INDIANAPOLIS — A hospital system has begun notifying at least a quarter-million patients of its Indiana and Illinois hospitals that a medical records contractor lost compact discs containing their Social Security numbers and other personal information.

However, officials at the Sisters of St. Francis Health Services say the lost CDs were recovered, and they do not believe any of the information was improperly accessed.

A letter to patients of the system, which operates 10 hospitals in Indiana and two in Illinois, says that in July, an employee of a medical billing contractor copied the data onto several CDs and placed them in a new computer bag to work from home.

That employee later decided the bag was too small and exchanged it at a store, accidentally leaving the discs inside, the letter said.

Lisa Decker, a spokeswoman for St. Francis subsidiary Greater Lafayette Health Services, said the person who later bought the bag immediately returned the discs to the company. * * *

The letter to patients urged them to check their credit reports. * * *

St. Francis operates hospitals in Indianapolis, Crawfordsville, Crown Point, Dyer, Hammond, Lafayette, Michigan City and Mooresville and the Illinois cities of Chicago Heights and Olympia Fields.

Yesterday, a second AP story reported:
INDIANAPOLIS (AP) -- An Indiana man has sued a hospital system over a security lapse that may have exposed the private information of more than 260,000 patients.

Greenwood resident Michael Chaney claims that The Sisters of St. Francis Health Services Inc. and its contractor violated federal HIPAA privacy laws and failed "to take reasonable corrective action" such as promptly notifying patients of the breach.

Attorneys for Chaney are seeking class-action status for the suit, filed Friday in U.S. District Court in Indianapolis, so it could represent thousands of other people whose information may have been exposed. The suit seeks damages including no less than $5,000 for each affected class member.

HIPAA is listed as the basis of the suit. There is no mention in the stories of whether the legislation enacted last year by the Indiana General Assembly concerning identity theft also forms a part of the complaint. For background on that law, start with this ILB entry from July 27, 2006.

Posted by Marcia Oddi on Wednesday, November 01, 2006
Posted to Indiana Law

Ind. Decisions - Supreme Court decides case involving arbitrator's award

In Natare Corporation v. D.S.I., Duraplastec Systems, Inc., et al., a 6-page opinion issued Oct. 31, 2006, Justice Sulivan writes:

Natare Corporation filed this lawsuit, contending that an arbitrator had wrongly denied it attorney fees to which it was entitled. Indiana law specifies limited bases upon which an arbitrator’s award may be challenged in a trial court. We agree with the trial court that neither of the bases advanced by Natare is available to it here: the arbitrator did not exceed his authority in denying Natare attorney fees, nor did he make his decision to deny Natare attorney fees before the attorney fee issue was presented to him.

Posted by Marcia Oddi on Wednesday, November 01, 2006
Posted to Ind. Sup.Ct. Decisions

ILB is back

The ILB is back from a pleasant 10-day trip to upstate New York, where the views are lovely, but the DSL is sparse.

Posted by Marcia Oddi on Wednesday, November 01, 2006
Posted to About the Indiana Law Blog

Ind. Decisions - Transfer list for week ending October 27, 2006

Here is the Indiana Supreme Court's transfer list for the week ending October 27, 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 Wednesday, November 01, 2006
Posted to Indiana Transfer Lists

Ind. Decisions - List of Court of Appeals NFP opinions issued for the week ending October 27, 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 27, 2006.

Posted by Marcia Oddi on Wednesday, November 01, 2006
Posted to NFP Lists